A New Tax System (Family Assistance) (Administration) Act 1999
PART 1 - PRELIMINARY
SECTION 1
1
Short title
This Act may be cited as the
A New Tax System (Family Assistance) (Administration) Act 1999.
SECTION 2
Commencement
2(1)
Sections
1 and 2 and subsection
235(5) commence on the day on which this Act receives the Royal Assent.
2(2)
The remaining provisions of this Act commence immediately after the commencement of the
A New Tax System (Family Assistance) Act 1999.
SECTION 2A
2A
Norfolk Island
This Act extends to Norfolk Island.
History
S 2A inserted by No 59 of 2015, s 3 and Sch 2 item 53, effective 1 July 2016.
PART 2 - INTERPRETATION
SECTION 3
Definitions
3(1)
In this Act, unless the contrary intention appears:
AAT
means the Administrative Appeals Tribunal.
[
CCH Note:
Definition of "AAT" will be repealed by No 38 of 2024, s 3 and Sch 3 item 3(a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
AAT Act
means the Administrative Appeals Tribunal Act 1975.
[
CCH Note:
Definition of "AAT Act" will be repealed by No 38 of 2024, s 3 and Sch 3 item 3(b), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
AAT first review
has the meaning given by section 111.
[
CCH Note:
Definition of "AAT first review" will be repealed by No 38 of 2024, s 3 and Sch 3 item 3(c), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Definition of "AAT first review" inserted by No 60 of 2015, s 3 and Sch 5 item 3, effective 1 July 2015.
AAT second review
has the meaning given by section 128.
[
CCH Note:
Definition of "AAT second review" will be repealed by No 38 of 2024, s 3 and Sch 3 item 3(d), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Definition of "AAT second review" inserted by No 60 of 2015, s 3 and Sch 5 item 3, effective 1 July 2015.
AAT single review
has the meaning given by section 138.
[
CCH Note:
Definition of "AAT single review" will be repealed by No 38 of 2024, s 3 and Sch 3 item 3(e), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Definition of "AAT single review" inserted by No 60 of 2015, s 3 and Sch 5 item 3, effective 1 July 2015.
ABN
(short for Australian Business Number) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
History
Definition of "ABN" inserted by No 66 of 2022, s 3 and Sch 2 item 13, effective 1 July 2023.
advance assessment day
, in relation to a family tax benefit advance, has the meaning given by subsection 35A(3) and paragraph 35B(3)(b).
History
Definition of "advance assessment day" inserted by No 53 of 2011, s 3 and Sch 1 item 9, applicable to family tax benefit advances requested on or after 1 July 2011.
agency
means:
(a)
the Department; or
(b)
the Human Services Department.
(c)
(Repealed by No 48 of 2009)
(d)
(Repealed by No 32 of 2011)
History
Definition of "agency" amended by No 32 of 2011, s 3 and Sch 4 item 19, by substituting para (b) for paras (b) and (d), effective 1 July 2011. For transitional provisions see note under s 108(2). Paras (b) and (d) formerly read:
(b)
the Commonwealth Services Delivery Agency; or
(d)
Medicare Australia.
Definition of "agency" amended by No 48 of 2009, s 3 and Sch 1 item 2, by repealing para (c), effective 1 July 2009. Para (c) formerly read:
(c)
the Australian Taxation Office; or
No 48 of 2009, s 3 and Sch 1 item 12 contains the following saving provision:
Saving - past period family tax benefit claims through the Australian Taxation Office
12
The A New Tax System (Family Assistance) (Administration) Act 1999, as in force immediately before 1 July 2009 in relation to:
(a)
claims made before 1 July 2009:
(i)
for payment of family tax benefit for a past period; and
(ii)
in a form approved by an officer of the Australian Taxation Office for the purposes of subsection 7(2) of that Act, acting under a delegation from the Secretary under section 221 of that Act; and
(b)
decisions made under that Act, in relation to such claims, by officers of the Australian Taxation Office (whether those decisions were made before, on or after 1 July 2009).
Definition of "agency" amended by No 111 of 2005, s 3 and Sch 2 item 84, by substituting para (d), effective 1 October 2005. Para (d) formerly read:
(d)
the Health Insurance Commission.
allocation rules
means the Minister's rules prescribed under section 198A.
History
Definition of "allocation rules" inserted by No 22 of 2017, s 3 and Sch 1 item 50, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
amount of the entitlement
(Repealed by No 22 of 2017)
History
Definition of "amount of the entitlement" repealed by No 22 of 2017, s 3 and Sch 1 item 51, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
amount of the entitlement
, in respect of child care benefit and a person, means:
(a)
in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit by fee reduction in respect of an income year - the amount referred to in section 51B; and
(b)
in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit for a past period for care provided by an approved child care service in an income year - the amount referred to in section 52E; and
(c)
in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit for a past period for care provided by a registered carer - the amount referred to in section 52F; and
(d)
in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual - the amount referred to in section 53D; and
(e)
in the case of an approved child care service in respect of which a determination has been made that the service is entitled to be paid child care benefit by fee reduction for care provided by the service to a child at risk in respect of a financial year - the amount referred to in section 54B.
Definition of "amount of the entitlement" inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
appropriate State/Territory body
(Repealed by No 125 of 2019)
History
Definition of "appropriate State/Territory body" repealed by No 125 of 2019, s 3 and Sch 1 item 33, effective 16 December 2019. The definition formerly read:
appropriate State/Territory body
has the meaning given by subsection 204K(7).
Definition of "appropriate State/Territory body" inserted by No 22 of 2017, s 3 and Sch 1 item 52, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
appropriate State/Territory support agency
has the meaning given by subsection 204K(7).
History
Definition of "appropriate State/Territory support agency" inserted by No 125 of 2019, s 3 and Sch 1 item 34, effective 16 December 2019.
approved centre based long day care service
(Repealed by No 22 of 2017)
History
Definition of "approved centre based long day care service" repealed by No 22 of 2017, s 3 and Sch 1 item 53, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
approved centre based long day care service
means a centre based long day care service in respect of which an approval as a centre based long day care service is in force under Division 1 of Part 8.
approved child care service
has the meaning given by section 194G.
History
Definition of "approved child care service" substituted by No 22 of 2017, s 3 and Sch 1 item 54, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
approved child care service
means:
(a)
an approved centre based long day care service; or
(b)
an approved family day care service; or
(ba)
an approved in-home care service; or
(c)
an approved occasional care service; or
(d)
an approved outside school hours care service.
Definition of "approved child care service" amended by No 138 of 2000.
approved family day care service
(Repealed by No 22 of 2017)
History
Definition of "approved family day care service" repealed by No 22 of 2017, s 3 and Sch 1 item 55(a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
approved family day care service
means a family day care service in respect of which an approval as a family day care service is in force under Division 1 of Part 8.
approved in-home care service
(Repealed by No 22 of 2017)
History
Definition of "approved in-home care service" repealed by No 22 of 2017, s 3 and Sch 1 item 55(b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
approved in-home care service
means an in-home care service in respect of which an approval as an in-home care service is in force under Division 1 of Part 8.
Definition of "approved in-home care service" inserted by No 138 of 2000.
approved occasional care service
(Repealed by No 22 of 2017)
History
Definition of "approved occasional care service" repealed by No 22 of 2017, s 3 and Sch 1 item 55(c), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
approved occasional care service
means an occasional care service in respect of which an approval as an occasional care service is in force under Division 1 of Part 8.
approved outside school hours care service
(Repealed by No 22 of 2017)
History
Definition of "approved outside school hours care service" repealed by No 22 of 2017, s 3 and Sch 1 item 55(d), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
approved outside school hours care service
means an outside school hours care service in respect of which an approval as an outside school hours care service is in force under Division 1 of Part 8.
approved provider
means a provider for which an approval is in effect under Division 1 of Part 8 (and does not include a provider whose approval as a provider under that Part is suspended).
History
Definition of "approved provider" inserted by No 22 of 2017, s 3 and Sch 1 item 56, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
[
CCH Note:
Definition of "ART" will be inserted by No 38 of 2024, s 3 and Sch 3 item 4, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The definition will read:
ART
means the Administrative Review Tribunal.
]
[
CCH Note:
Definition of "ART Act" will be inserted by No 38 of 2024, s 3 and Sch 3 item 4, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The definition will read:
ART Act
means the Administrative Review Tribunal Act 2024.
]
[
CCH Note:
Definition of "ART child care provider review" will be inserted by No 38 of 2024, s 3 and Sch 3 item 4, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The definition will read:
ART child care provider review
has the meaning given by section 138.
]
[
CCH Note:
Definition of "ART Principal Registrar" will be inserted by No 38 of 2024, s 3 and Sch 3 item 4, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The definition will read:
ART Principal Registrar
means the Chief Executive Officer and Principal Registrar of the ART.
]
[
CCH Note:
Definition of "ART review" will be inserted by No 38 of 2024, s 3 and Sch 3 item 4, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The definition will read:
ART review
has the meaning given by section 111.
]
audit team
, in relation to an audit of an approved provider, means the expert engaged to carry out the audit of the provider and any person (other than an authorised person) assisting the expert.
History
Definition of "audit team" substituted by No 22 of 2017, s 3 and Sch 1 item 57, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
audit team
, in relation to an audit of an operator of an approved child care service, means the expert engaged to carry out the audit of the operator and any person (other than an authorised officer) assisting the expert.
Definition of "audit team" inserted by No 120 of 2011, s 3 and Sch 1 item 1, effective 15 October 2011. For application provision see note under s 3(4B).
Bank
includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the meaning of the Banking Act 1959.
History
Definition of "Bank" inserted by No 45 of 2000. For transitional provisions see note under s 69.
care percentage decision
means a decision to the extent that the decision involves (wholly or partly):
(a)
a determination of an individual's percentage of care for a child that was made, under a provision of Subdivision
D of Division
1 of Part
3 of the Family Assistance Act, in relation to a claim for payment of family tax benefit; or
(b)
a determination relating to an individual that has effect, under section
35T of that Act, as if it were a determination made under such a provision.
History
Definition of "care percentage decision" inserted by No 65 of 2010, s 3 and Sch 2 item 22, effective 1 July 2010.
CCB %
(Repealed by No 22 of 2017)
History
Definition of "CCB %" repealed by No 22 of 2017, s 3 and Sch 1 item 58, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
CCB %
, in respect of an individual, means:
(a)
the CCB % determined (including as a result of a variation) in respect of the individual under Division 4 of Part 3; or
(b)
the CCB % otherwise applicable to the individual under Division 4 of Part 3; or
(c)
if neither paragraph (a) nor (b) applies to the individual - the CCB % calculated in respect of the individual under subclause 2(2) of Schedule 2 to the Family Assistance Act.
Definition of "CCB %" substituted by No 53 of 2008, s 3 and Sch 1 item 14, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. The definition formerly read:
CCB %
, in respect of an individual, means the CCB % calculated in respect of the individual under subclause 2(2) of Schedule 2 to the Family Assistance Act.
Definition of "CCB %" inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
CCS quarter
has the meaning given by subsection 67CE(3).
History
Definition of "CCS quarter" inserted by No 22 of 2017, s 3 and Sch 1 item 59, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
CCS reconciliation conditions
has the meaning given by section 103A.
History
Definition of "CCS reconciliation conditions" inserted by No 22 of 2017, s 3 and Sch 1 item 59, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
ceases
(Repealed by No 22 of 2017)
History
Definition of "ceases" repealed by No 22 of 2017, s 3 and Sch 1 item 60, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
ceases
to be enrolled, in relation to a child to whom an approved child care service provides care, has the meaning given by section 219AD,
Definition of "ceases" inserted by No 118 of 2007, s 3 and Sch 1 item 6, effective 29 June 2007.
ceases to be enrolled
has the meaning given by section 200B.
History
Definition of "ceases to be enrolled" inserted by No 22 of 2017, s 3 and Sch 1 item 61, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
centrelink program
has the same meaning as in the Human Services (Centrelink) Act 1997.
History
Definition of "centrelink program" inserted by No 32 of 2011, s 3 and Sch 4 item 20, effective 1 July 2011. For transitional provisions see note under s 108(2).
Chief Executive Centrelink
has the same meaning as in the Human Services (Centrelink) Act 1997.
History
Definition of "Chief Executive Centrelink" inserted by No 32 of 2011, s 3 and Sch 4 item 21, effective 1 July 2011. For transitional provisions see note under s 108(2).
Chief Executive Medicare
has the same meaning as in the Human Services (Medicare) Act 1973.
History
Definition of "Chief Executive Medicare" inserted by No 32 of 2011, s 3 and Sch 4 item 22, effective 1 July 2011. For transitional provisions see note under s 108(2).
child care decision
has the meaning given by section 103.
History
Definition of "child care decision" inserted by No 22 of 2017, s 3 and Sch 1 item 61, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
child care provider decision
has the meaning given by subsection 138(4).
History
Definition of "child care provider decision" inserted by No 26 of 2021, s 3 and Sch 1 item 18, effective 27 March 2021. For application provisions, see note under s 205C.
child care service payment
means:
(a)
a fee reduction amount payable to a provider under section
67EB; or
(b)
a payment prescribed by the Minister's rules that is made to approved providers under a scheme or program (however described) administered by the Department.
History
Definition of "child care service payment" substituted by No 22 of 2017, s 3 and Sch 1 item 62, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
child care service payment
means:
(a)
a payment under section 219Q or subsection 219QA(2) in respect of fee reduction; or
(aa)
a payment under section 219QC or subsection 219QD(2) in respect of child care rebate; or
(b)
an enrolment advance under section 219RA; or
(c)
a payment under:
(i)
subitem 97(5) ofSchedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007; or
(ii)
subitem 97A(5) of that Schedule (as modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009); or
(d)
the payment known as Jobs Education and Training (JET) Child Care fee assistance that is paid by the Commonwealth; or
(e)
a payment specified in an instrument under subsection (4A).
Definition of "child care service payment" amended by No 25 of 2011, s 3 and Sch 2 item 1, by inserting para (aa), effective 26 July 2011.
Definition of "child care service payment" inserted by No 79 of 2011, s 3 and Sch 1 item 1, effective 26 July 2011.
civil penalty order
(Repealed by No 22 of 2017)
History
Definition of "civil penalty order" repealed by No 22 of 2017, s 3 and Sch 1 item 63, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
civil penalty order
has the meaning given by section 219TSC.
Definition of "civil penalty order" inserted by No 53 of 2008, s 3 and Sch 4 item 1, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
civil penalty provision
has the same meaning as in the Regulatory Powers Act.
History
Definition of "civil penalty provision" substituted by No 22 of 2017, s 3 and Sch 1 item 64, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
civil penalty provision
means any of the following:
(a)
subsection 204(1);
(b)
subsection 219AC(1A) or (1B);
(c)
subsection 219AG(1A);
(d)
subsection 219B(2);
(e)
subsection 219BB(1);
(f)
subsection 219BC(1);
(g)
subsection 219BD(1);
(h)
subsection 219E(1) or (7);
(ha)
subsection 219EA(2);
(hb)
subsection 219EB(1) or (5);
(j)
subsection 219F(1) or (2);
(k)
subsection 219G(1), (3) or (4);
(ka)
subsection 219GA(6);
(l)
219L(1), (2) or (3);
(la)
subsection 219LA(2) or (5);
(m)
subsection 219M(1) or (4);
(n)
subsection 219N(5A);
(o)
subsection 219NA(4);
(p)
subsection 219NB(1);
(q)
subsection 219P(1);
(r)
subsection 219QB(1);
(sa)
subsection 219QE(1);
(s)
section 219TSB;
(t)
a provision (if any) of the regulations that is declared to be a civil penalty provision in accordance with paragraph 235(1A)(b).
]
Definition of "civil penalty provision" amended by No 120 of 2011, s 3 and Sch 1 items 2 and 3, by inserting paras (ka) and (la), effective 15 October 2011. For application provision see note under s 3(4B).
Definition of "civil penalty provision" amended by No 25 of 2011, s 3 and Sch 1 items 9 and 10, by inserting paras (ha), (hb) and (sa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Definition of "civil penalty provision" amended by No 34 of 2010, s 3 and Sch 2 item 1, by inserting "or (7)" after "subsection 219E(1)" in para (h), effective 11 May 2010.
Definition of "civil penalty provision" amended by No 50 of 2009, s 3 and Sch 4 item 10, by repealing para (i), effective 24 December 2009.
Definition of "civil penalty provision" amended by No 50 of 2009, s 3 and Sch 5 item 13, by inserting "or (4)" after "219M(1)" in para (m), applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009.
Definition of "civil penalty provision" amended by No 50 of 2009, s 3 and Sch 4 item 1, by inserting para (t) at the end, effective 25 June 2009.
Definition of "civil penalty provision" substituted by No 53 of 2008, s 3 and Sch 4 item 2, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The definition formerly read:
civil penalty provision
means subsection 219EA(2) or 219TSB(1).
Definition of "civil penalty provision" inserted by No 118 of 2007, s 3 and Sch 2 item 1, effective 1 July 2007.
complying written arrangement
has the meaning given by subsection 200B(3).
History
Definition of "complying written arrangement" inserted by No 22 of 2017, s 3 and Sch 1 item 65, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
decision
has the same meaning as in the Administrative Appeals Tribunal Act 1975.
[
CCH Note:
Definition of "decision" will be amended by No 38 of 2024, s 3 and Sch 3 item 5, by substituting "ART Act" for "Administrative Appeals Tribunal Act 1975", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
departure authorisation certificate
means a certificate under Subdivision D of Division 5 of Part 4.
History
Definition of "departure authorisation certificate" inserted by No 55 of 2016, s 3 and Sch 13 item 2, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
departure prohibition order
means an order under Subdivision A of Division 5 of Part 4 (including such an order varied under Subdivision C of that Division).
History
Definition of "departure prohibition order" inserted by No 55 of 2016, s 3 and Sch 13 item 2, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
early claim day
, in relation to a claim for payment of family tax benefit by instalment, means the day occurring 97 days before the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant. It does not matter whether the child becomes such an FTB child on the expected day.
History
Definition of "early claim day" substituted by No 70 of 2013, s 3 and Sch 2A item 28, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. The definition formerly read:
early claim day
, in relation to:
(a)
a claim for payment of family tax benefit by instalment; or
(b)
a claim for payment of baby bonus in normal circumstances;
(c)
(Repealed by No 49 of 2012)
means the day occurring 97 days before the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant. It does not matter whether the child becomes such an FTB child on the expected day.
Definition of "early claim day" amended by No 49 of 2012, s 3 and Sch 1 items 15 and 16, by omitting "or" from the end of para (b) and repealing para (c), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Para (c) formerly read:
(c)
a claim for payment of maternity immunisation allowance in normal circumstances;
Definition of "early claim day" inserted by No 105 of 2010, s 3 and Sch 1 item 19, effective 1 October 2010.
No 105 of 2010, s 3 and Sch 2 item 5 contains the following transitional provisions:
Claims for family tax benefit, baby bonus or maternity immunisation allowance
5(1)
The amendments of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Act do not affect a claim for family tax benefit, baby bonus or maternity immunisation allowance made under that Act before 1 October 2010.
5(2)
Without limiting subitem (1), the amendment of section 47B of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Act does not affect a claim for baby bonus made under that Act before 1 January 2011.
Education and Care Services National Law
means the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 (Vic.).
History
Definition of "Education and Care Services National Law" inserted by No 125 of 2019, s 3 and Sch 2 item 1, effective 13 December 2019.
eligibility rules
(Repealed by No 22 of 2017)
History
Definition of "eligibility rules" repealed by No 22 of 2017, s 3 and Sch 1 item 66, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
eligibility rules
means rules made under subsection 205(1).
emergency or disaster
has the meaning given by subsection 205C(2).
History
Definition of "emergency or disaster" inserted by No 26 of 2021, s 3 and Sch 1 item 2, effective 27 March 2021. For application provisions, see note under s 205C.
enrolled
has the meaning given by section 200B.
History
Definition of "enrolled" substituted by No 22 of 2017, s 3 and Sch 1 item 67, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
enrolled
in relation to a child to whom an approved child care service provides care, has the meaning given by subsections 219A(2) and 219AA(2).
Definition of "enrolled" inserted by No 118 of 2007, s 3 and Sch 1 item 7, effective 29 June 2007.
enrolment notice
means a notice given under subsection 200A(1), (2) or (3).
History
Definition of "enrolment notice" inserted by No 22 of 2017, s 3 and Sch 1 item 68, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
entitled to be paid family tax benefit by instalment:
a person is so entitled at a particular time if a determination under section 16 in relation to the person is in force at that time under which the person is entitled to be paid family tax benefit at or after that time.
estimated income basis
: family tax benefit is worked out on an
estimated income basis
if it is worked out on the basis referred to in subsection 20(1), (2A) or (3).
History
Definition of "estimated income basis" inserted by No 49 of 2012, s 3 and Sch 3 item 3, effective 1 July 2012.
Executive Director
(Repealed by No 38 of 2010)
History
Definition of "Executive Director" repealed by No 38 of 2010, s 3 and Sch 3 item 18, effective 11 May 2010. The definition formerly read:
Executive Director
means the Executive Director of the Social Security Appeals Tribunal.
executive officer
(Repealed by No 22 of 2017)
History
Definition of "executive officer" repealed by No 22 of 2017, s 3 and Sch 1 item 69, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
executive officer
, in relation to an operator of an approved centre based long day care service, means a person, by whatever name called and whether or not a director of the operator, who is concerned in, or takes part in, the management of the operator.
Definition of "executive officer" inserted by No 120 of 2011, s 3 and Sch 1 item 4, effective 15 October 2011. For application provision see note under s 3(4B).
Family Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
Family Assistance Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
History
Definition of "Family Assistance Administration Act" inserted by No 45 of 2000. For transitional provisions see note under s 69.
family assistance law
means any one or more of the following:
(a)
this Act;
(b)
the Family Assistance Act;
(c)
any instrument (including regulations) made under this Act or the Family Assistance Act;
(d)
Schedules 5 and 6 to the
A New Tax System (Family Assistance and Related Measures) Act 2000.
History
Definition of "family assistance law" amended by No 79 of 2011, s 3 and Sch 3 item 1, by substituting para (c), effective 22 August 2011. Para (c) formerly read:
(c)
regulations under this Act;
Definition of "family assistance law" amended by No 45 of 2000. For transitional provisions see note under s 69. Para (c) formerly read:
(c)
regulations under this Act.
family tax benefit advance
means the advance mentioned in Division 2 of Part 3.
fee reduction amount
has the meaning given by subsection 67EB(2).
History
Definition of "fee reduction amount" inserted by No 22 of 2017, s 3 and Sch 1 item 70, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
fee reduction decision
has the meaning given by subsection 67EB(2).
History
Definition of "fee reduction decision" inserted by No 22 of 2017, s 3 and Sch 1 item 70, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
financial institution
means a corporation that is an ADI for the purposes of the Banking Act 1959.
History
Definition of "financial institution" inserted by No 47 of 2001.
first deadline
has the meaning given by section 103B.
History
Definition of "first deadline" inserted by No 22 of 2017, s 3 and Sch 1 item 70, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
flexible PPL day
has the same meaning as in the Paid Parental Leave Act 2010.
History
Definition of "flexible PPL day" inserted by No 53 of 2020, s 3 and Sch 1 item 6, effective 1 July 2020.
FTB advance debt
has the meaning given by section 71A.
History
Definition of "FTB advance debt" inserted by No 53 of 2011, s 3 and Sch 1 item 10, applicable to family tax benefit advances requested on or after 1 July 2011.
[
CCH Note:
Definition of "guidance and appeals panel" will be inserted by No 38 of 2024, s 3 and Sch 3 item 6, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The definition will read:
guidance and appeals panel
has the same meaning as in the ART Act.
]
[
CCH Note:
Definition of "guidance and appeals panel proceeding" will be inserted by No 38 of 2024, s 3 and Sch 3 item 6, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The definition will read:
guidance and appeals panel proceeding
has the same meaning as in the ART Act.
]
head
of an agency means:
(a)
in the case of the Department - the Secretary; or
(b)
in the case of the Human Services Department - the Chief Executive Officer of Services Australia.
(c)
(Repealed by No 48 of 2009)
(d)
(Repealed by No 32 of 2011)
History
Definition of "head" amended by No 104 of 2020, s 3 and Sch 1 item 4, by substituting "Chief Executive Officer of Services Australia" for "Secretary of the Human Services Department" in para (b), effective 1 February 2020 and applicable in relation to an offence if the conduct constituting the offence occurs after 20 November 2020.
Definition of "head" amended by No 32 of 2011, s 3 and Sch 4 item 23, by substituting para (b) for paras (b) and (d), effective 1 July 2011. For transitional provisions see note under s 108(2). Paras (b) and (d) formerly read:
(b)
in the case of the Commonwealth Services Delivery Agency - the Chief Executive Officer of the Agency; or
(d)
in the case of Medicare Australia - the Chief Executive Officer of Medicare Australia.
Definition of "head" amended by No 48 of 2009, s 3 and Sch 1 item 3, by repealing para (c), effective 1 July 2009. For saving provision, see note under definition of "agency". Para (c) formerly read:
(c)
in the case of the Australian Taxation Office - the Commissioner of Taxation; or
Definition of "head" amended by No 111 of 2005, s 3 and Sch 2 item 85, by substituting "Medicare Australia - the Chief Executive Officer of Medicare Australia" for "the Health Insurance Commission - the Managing Director of the Commission" in para (d), effective 1 October 2005.
Human Services Department
means Services Australia.
History
Definition of "Human Services Department" amended by No 104 of 2020, s 3 and Sch 1 item 5, by substituting "Services Australia" for "the Department administered by the Human Services Minister", effective 1 February 2020 and applicable in relation to an offence if the conduct constituting the offence occurs after 20 November 2020.
Definition of "Human Services Department" inserted by No 32 of 2011, s 3 and Sch 4 item 24, effective 1 July 2011. For transitional provisions see note under s 108(2).
Human Services Minister
(Repealed by No 104 of 2020)
History
Definition of "Human Services Minister" repealed by No 104 of 2020, s 3 and Sch 1 item 6, effective 1 February 2020 and applicable in relation to an offence if the conduct constituting the offence occurs after 20 November 2020. The definition formerly read:
Human Services Minister
means the Minister administering the Human Services (Centrelink) Act 1997.
Definition of "Human Services Minister" inserted by No 32 of 2011, s 3 and Sch 4 item 25, effective 1 July 2011. For transitional provisions see note under s 108(2).
immunisation grace period
has the meaning given by subsection 67CD(9).
History
Definition of "immunisation grace period" inserted by No 22 of 2017, s 3 and Sch 1 item 70, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
income tax refund
means an amount payable to a person:
(a)
in respect of an overpayment of income tax imposed by the
Income Tax Act 1986; or
(b)
in respect of an overpayment of Medicare levy payable in accordance with Part
VIIB of the
Income Tax Assessment Act 1936; or
(c)
in respect of an overpayment of an amount payable by the person by an assessment made under Part
IV of the
Income Tax Assessment Act 1936 because of:
(i)
subsection 106U(1) of the Higher Education Funding Act 1988; or
(ia)
(Repealed by No 103 of 2013)
(ii)
section 154-60 of the Higher Education Support Act 2003; or
(iii)
section 12ZN of the Student Assistance Act 1973; or
(iv)
section 23FA of the VET Student Loans Act 2016; or
(d)
as a refund of a tax offset that is subject to the refundable tax offset rules (see Division
67 of the Income Tax Assessment Act).
History
Definition of "income tax refund" amended by No 116 of 2018, s 3 and Sch 1 item 24, by inserting para (c)(iv), effective 1 July 2019.
Definition of "income tax refund" amended by No 103 of 2013, s 3 and Sch 1 item 15, by repealing para (c)(ia), effective 29 June 2013. Para (c)(ia) formerly read:
(ia)
section 154-60 of the Higher Education Support Act 2003; or
Definition of "income tax refund" amended by No 5 of 2011, s 3 and Sch 1 items 6 and 7, by substituting "section 12ZN" for "subsection 12ZN(1)" in para (c)(iii) and "(see Division 67 of the Income Tax Assessment Act)" for "under Division 67 of the Income Tax Assessment Act" in para (d), effective 22 March 2011.
Definition of"income tax refund" substituted by No 82 of 2006, s 3 and Sch 11 item 1, effective 1 July 2002. Act No 82 of 2006, s 3 and Sch 11 item 2 contained the following application provision:
(1)
The amendment made applies in relation to a debt owed in respect of family tax benefit against which an income tax refund is to be applied, if the income tax refund is determined on or after 1 July 2002 (irrespective of the income year to which the refund relates or when the debt is determined).
(2)
The amendment made applies in relation to a debt owed in respect of child care benefit against which an income tax refund is to be applied, if both:
(a)
the debt is determined on or after 1 July 2006; and
(b)
the income tax refund is determined on or after 1 July 2007 (irrespective of the income year to which the refund relates).
The definition formerly read:
income tax refund
means an amount payable to a person in respect of an overpayment of:
(a)
income tax imposed by the Income Tax Act 1986; or
(b)
Medicare levy payable in accordance with Part VIIB of the Income Tax Assessment Act 1936; or
(c)
an amount payable by the person by an assessment made under Part IV of the Income Tax Assessment Act 1936 because of:
(i)
subsection 106U(1) of the Higher Education Funding Act 1988; or
(ia)
section 154-60 of the Higher Education Support Act 2003; or
(ii)
subsection 12ZN(1) of the Student Assistance Act 1973.
Definition of "income tax refund" amended by No 150 of 2003, s 3 and Sch 2 item 95, by inserting para (c)(ia), effective 1 January 2004.
income tax return
has the same meaning as in the Income Tax Assessment Act 1997.
indexed actual income
(a)
for an individual in relation to family tax benefit - means the amount stated for the individual in a notice under subsection 20B(2); and
(b)
for an individual in relation to child care subsidy - means the amount stated for the individual in a notice under subsection
67DD(2).
History
Definition of "indexed actual income" amended by No 22 of 2017, s 3 and Sch 1 item 71, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
for an individual in relation to child care benefit - means the amount stated for the individual in a notice under subsection 55AB(2).
Definition of "indexed actual income" inserted by No 36 of 2006, s 3 and Sch 2 item 1, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
indexed estimate
:
(a)
for an individual in relation to family tax benefit - means the amount stated for the individual in a notice under subsection
20A(2); and
(b)
for an individual in relation to child care subsidy - means the amount stated for the individual in a notice under subsection
67DC(2).
History
Definition of "indexed estimate" amended by No 22 of 2017, s 3 and Sch 1 item 72, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
for an individual in relation to child care benefit - means the amount stated for the individual in a notice under subsection 55AA(2).
]
Definition of "indexed estimate" inserted by No 36 of 2006, s 3 and Sch 2 item 2, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
instalment amount
, in relation to family tax benefit, has the meaning given by subsection 23(2).
instalment period
, in relation to family tax benefit, has the meaning given by subsections 23(2) and (3).
History
Definition of "instalment period" substituted by No 45 of 2000. For transitional provisions see note under s 7A. Definition formerly read:
instalment period
:
(a)
in relation to family tax benefit-has the meaning given by subsections 23(2) and (3); and
(b)
in relation to child care benefit-has the meaning given by subsection 42(4) or 47(2), as the case requires, of the Family Assistance Act.
large centre-based day care provider
(Repealed by No 66 of 2022)
History
Definition of "large centre-based day care provider" repealed by No 66 of 2022, s 3 and Sch 2 item 1, effective 1 July 2023. The definition formerly read:
large centre-based day care provider
has the meaning given by section 4A.
Definition of "large centre-based day care provider" inserted by No 22 of 2017, s 3 and Sch 1 item 73, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
large child care provider
has the meaning given by section 4A.
History
Definition of "large child care provider" inserted by No 66 of 2022, s 3 and Sch 2 item 2, effective 1 July 2023.
large long day care centre operator
(Repealed by No 22 of 2017)
History
Definition of "large long day care centre operator" repealed by No 22 of 2017, s 3 and Sch 1 item 74, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
large long day care centre operator
, in relation to a financial year, means:
(a)
a person who operates, or proposes to operate, 25 or more approved centre based long day care services at any time during the financial year; or
(b)
2 or more persons who, between them, operate, or propose to operate, 25 or more approved centre based long day care services during the financial year, so long as any of the following apply:
(i)
one person has, at any time during the financial year, 25% or more of their executive officers in common with another person;
(ii)
one person owns, at any time during the financial year, 15% or more of another person;
(iii)
one person is entitled to receive, at any time during the financial year, 15% or more of the dividends paid by another person.
Note:
See also subsection (4B).
Definition of "large long day care centre operator" inserted by No 120 of 2011, s 3 and Sch 1 item 5, effective 15 October 2011. For application provision see note under s 3(4B).
listed child care information provision
has the meaning given by section 219UB.
History
Definition of "listed child care information provision" inserted by No 22 of 2017, s 3 and Sch 1 item 75, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
maximum amount
, in relation to a family tax benefit advance, has the meaning given by section 35D.
History
Definition of "maximum amount" inserted by No 53 of 2011, s 3 and Sch 1 item 11, applicable to family tax benefit advances requested on or after 1 July 2011.
maximum PPL period
(Repealed by No 4 of 2023)
History
Definition of "maximum PPL period" repealed by No 4 of 2023, s 3 and Sch 2 item 8, effective 26 March 2023. The definition formerly read:
maximum PPL period
has the same meaning as in the Paid Parental Leave Act 2010.
Definition of "maximum PPL period" inserted by No 53 of 2020, s 3 and Sch 1 item 6, effective 1 July 2020.
medicare program
has the same meaning as in the Human Services (Medicare) Act 1973.
History
Definition of "medicare program" inserted by No 32 of 2011, s 3 and Sch 4 item 26, effective 1 July 2011. For transitional provisions see note under s 108(2).
meets the information requirements
has the meaning given by subsection 67CD(10).
History
Definition of "meets the information requirements" inserted by No 22 of 2017, s 3 and Sch 1 item 75, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
minimum amount
, in relation to a family tax benefit advance that is paid to an individual, means:
(a)
3.75% of the FTB child rate for one FTB child who is under 13 years of age worked out under clause
7 of Schedule
1 to the Family Assistance Act (disregarding clauses
8 to
11 of that Schedule); or
(b)
if a determination under section
28 of that Act that the individual is eligible for a percentage (the
section 28 percentage
) of the family tax benefit for FTB children of the individual is in force - the section 28 percentage of the paragraph (a) amount; or
(c)
if the amount that would be the minimum amount under paragraph (a) or (b) is not a number of whole cents - the amount rounded down to the nearest cent.
History
Definition of "minimum amount" inserted by No 53 of 2011, s 3 and Sch 1 item 12, applicable to family tax benefit advances requested on or after 1 July 2011.
minimum taxable income %
(Repealed by No 53 of 2008)
History
Definition of "minimum taxable income %" repealed by No 53 of 2008, s 3 and Sch 1 item 15, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. The definition formerly read:
minimum taxable income %
, in respect of an individual, means the minimum taxable income % calculated in respect of the individual under clause 12 of Schedule 2 to the Family Assistance Act.
Definition of "minimum taxable income %" inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
non-corporate Commonwealth entity
has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
History
Definition of "non-corporate Commonwealth entity" inserted by No 26 of 2021, s 3 and Sch 1 item 27, effective 27 March 2021. For application provisions, see note under s 205C.
officer
means an officer of an agency and includes:
(a)
the head of the agency; and
(aa)
if the agency is the Human Services Department:
(i)
the Chief Executive Centrelink; and
(ii)
the Chief Executive Medicare; and
(b)
an employee of the agency; and
(c)
any other person engaged by the agency, under contract or otherwise, to exercise powers, or perform duties or functions, of the agency.
History
Definition of "officer" amended by No 32 of 2011, s 3 and Sch 4 item 27, by inserting para (aa), effective 1 July 2011. For transitional provisions see note under s 108(2).
official
has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
History
Definition of "official" inserted by No 26 of 2021, s 3 and Sch 1 item 27, effective 27 March 2021. For application provisions, see note under s 205C.
parental leave pay
has the same meaning as in the Paid Parental Leave Act 2010.
History
Definition of "parental leave pay" inserted by No 105 of 2010, s 3 and Sch 1 item 20, effective 1 October 2010. For transitional provisions, see note under definition of "early claim day".
penalty unit
(Repealed by No 31 of 2014)
History
Definition of "penalty unit" repealed by No 31 of 2014, s 3 and Sch 8 item 2, effective 24 June 2014. The definition formerly read:
penalty unit
has the meaning given by section 4AA of the Crimes Act 1914.
Definition of "penalty unit" inserted by No 53 of 2008, s 3 and Sch 4 item 3, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
permissible staff discount
has the meaning given by subsection 201BA(1).
History
Definition of "permissible staff discount" inserted by No 66 of 2022, s 3 and Sch 5 item 3, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
person with management or control
has the meaning given by section 194F.
Definition of "person with management or control" inserted by No 22 of 2017, s 3 and Sch 1 item 75, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
personal information
has the same meaning as in the Privacy Act 1988.
History
Definition of "personal information" inserted by No 120 of 2011, s 3 and Sch 1 item 6, effective 15 October 2011. For application provision see note under s 3(4B).
primary tax
means any amount due to the Commonwealth directly under a taxation law (within the meaning of the Taxation Administration Act 1953), including any such amount that is not yet payable.
Principal Member
(Repealed by No 60 of 2015)
History
Definition of "Principal Member" repealed by No 60 of 2015, s 3 and Sch 5 item 4(a), effective 1 July 2015. The definition formerly read:
Principal Member
means the Principal Member of the Social Security Appeals Tribunal.
Note:
Schedule 3 to the Social Security (Administration) Act 1999 deals with the constitution and membership of the Social Security Appeals Tribunal.
Definition of "Principal Member" amended by No 154 of 2012, s 3 and Sch 3 item 1, by inserting the note at the end, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
Definition of "Principal Member" inserted by No 38 of 2010, s 3 and Sch 3 item 19, effective 11 May 2010.
protected information
means:
(a)
information about a person that:
(i)
was obtained by an officer under the family assistance law; and
(ii)
is or was held in the records of the Department; or
(aaa)
information about a person that:
(i)
was obtained by an officer under the family assistance law; and
(ii)
is or was held in the records of the Human Services Department within the meaning of this Act as in force at any time; or
(aa)
information about a person that was held in the records of the Commonwealth Services Delivery Agency (within the meaning of the
Commonwealth Services Delivery Agency Act 1997 as in force before 1 July 2011); or
(b)
information about a person that:
(i)
was obtained by an officer under the family assistance law; and
(ii)
was held in the records of Medicare Australia (within the meaning of the Medicare Australia Act 1973 as in force before 1 July 2011); or
(ba)
information about a person obtained by an officer under the family assistance law that was held in the records of the Health Insurance Commission; or
(c)
information to the effect that there is no information about a person held in the records of an agency.
History
Definition of "protected information" amended by No 104 of 2020, s 3 and Sch 1 items 7 and 8, by omitting "or the Human Services Department" after "of the Department" from para (a)(ii) and inserting para (aaa), effective 1 February 2020 and applicable in relation to an offence if the conduct constituting the offence occurs after 20 November 2020.
Definition of "protected information" amended by No 32 of 2011, s 3 and Sch 4 item 28, by substituting paras (a), (aa) and (b) for paras (a) and (b), effective 1 July 2011. For transitional provisions see note under s 108(2). Paras (a) and (b) formerly read:
(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 the family assistance law that is or was held in the records of Medicare Australia; or
Definition of "protected information" amended by No 48 of 2009, s 3 and Sch 1 item 4, by omitting "the Australian Taxation Office or" after "records of" in para (b), effective 1 July 2009. For saving provision, see note under definition of "agency" in s 3(1). No 48 of 2009, s 3 and Sch 1 item 14 contains the following further saving provision:
Saving - protected information
14
Despite the amendment, paragraph (b) of the definition of
protected information
, as in force immediately before 1 July 2009, continues to apply on and 1 July 2009 in relation to information obtained (whether before, on or after 1 July 2009) that is or was held in the records of the Australian Taxation Office.
Definition of "protected information" amended by No 111 of 2005, s 3 and Sch 2 items 86 and 87, by substituting "Medicare Australia" for "the Health Insurance Commission" in para (b) and inserting para (ba), effective 1 October 2005.
provider
:
(a)
has the meaning given by subsection
194A(1); and
(b)
is affected by sections
230A and
230B.
History
Definition of "provider" inserted by No 22 of 2017, s 3 and Sch 1 item 75, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
registered carer
(Repealed by No 22 of 2017)
History
Definition of "registered carer" repealed by No 22 of 2017, s 3 and Sch 1 item 76, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
registered carer
means an individual approved as a registered carer under Division 2 of Part 8.
Regulatory Powers Act
means the Regulatory Powers (Standard Provisions) Act 2014.
History
Definition of "Regulatory Powers Act" inserted by No 22 of 2017, s 3 and Sch 1 item 77, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
related providers
has the meaning given by subsection 4A(3).
History
Definition of "related providers" inserted by No 22 of 2017, s 3 and Sch 1 item 77, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
relevant arrangement
has the meaning given by subsection 200A(3).
History
Definition of "relevant arrangement" inserted by No 22 of 2017, s 3 and Sch 1 item 77, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
reporting period
(Repealed by No 22 of 2017)
History
Definition of "reporting period" repealed by No 22 of 2017, s 3 and Sch 1 item 78(a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
reporting period
, in respect of an approved child care service, means:
(a)
if paragraph (b) does not apply - a quarter beginning on any 1 January, 1 April, 1 July or 1 October; or
(b)
if the service is covered by a determination made under subsection (5) - the period specified in the determination.
Definition of "reporting period" inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
schooling %
(Repealed by No 22 of 2017)
History
Definition of "schooling %" repealed by No 22 of 2017, s 3 and Sch 1 item 78(b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
schooling %
, in respect of an individual, means the schooling % calculated in respect of the individual under subclause 2(2) of Schedule 2 to the Family Assistance Act.
Definition of "schooling %" inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
second deadline
has the meaning given by section 103C.
History
Definition of "second deadline" inserted by No 22 of 2017, s 3 and Sch 1 item 79, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Secretary
means the Secretary of the Department.
History
Definition of "Secretary" amended by No 5 of 2011, s 3 and Sch 7 item 16, by substituting "Secretary of" for "Secretary to", effective 22 March 2011.
social security law
has the same meaning as in the Social Security Act 1991.
History
Definition of "social security law" inserted by No 32 of 2011, s 3 and Sch 4 item 28A, effective 1 July 2011. For transitional provisions see note under s 108(2).
SSAT
(Repealed by No 60 of 2015)
History
Definition of "SSAT" repealed by No 60 of 2015, s 3 and Sch 5 item 4(b), effective 1 July 2015. The definition formerly read:
SSAT
means the Social Security Appeals Tribunal.
Note:
Schedule 3 to the Social Security (Administration) Act 1999 deals with the constitution and membership of the SSAT.
Definition of "SSAT" amended by No 154 of 2012, s 3 and Sch 3 item 2, by inserting the note at the end, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
SSAT member
(Repealed by No 60 of 2015)
History
Definition of "SSAT member" repealed by No 60 of 2015, s 3 and Sch 5 item 4(c), effective 1 July 2015. The definition formerly read:
SSAT member
means a member of the SSAT (and includes the Principal Member).
Note:
Schedule 3 to the Social Security (Administration) Act 1999 deals with the constitution and membership of the SSAT.
Definition of "SSAT member" inserted by No 154 of 2012, s 3 and Sch 3 item 3, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
starts to be enrolled
has the meaning given by section 200B.
History
Definition of "starts to be enrolled" inserted by No 22 of 2017, s 3 and Sch 1 item 79, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
statement period
has the meaning given by subsection 201D(7).
History
Definition of "statement period" inserted by No 22 of 2017, s 3 and Sch 1 item 79, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
taxable income %
, in respect of an individual, means the taxable income % calculated in respect of the individual under Part 4 of Schedule 2 to the Family Assistance Act.
History
Definition of "taxable income %" inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
tax file number
has the same meaning as in Part VA of the Income Tax Assessment Act 1936.
TFN claim person
:
(a)
in relation to a claim for family tax benefit under Subdivision
A of Division
1 of Part
3, means:
(i)
the claimant; and
(ii)
if the claim is for payment of family tax benefit by instalment - the claimant's partner (if any) at the time of the claim; and
(iii)
if the claim is for payment of family tax benefit for a past period - any partner of the claimant during the past period; or
(b)
in relation to a claim made by a claimant for CCS, means:
(i)
the claimant; and
(ii)
the claimant's partner (if any) at the time the claim is made; or
(c)
in relation to a claim for a stillborn baby payment in normal circumstances under Division
3 of Part
3, means:
(i)
the claimant; and
(ii)
the claimant's partner (if any) at the time of the claim; or
(d)
in relation to a claim for single income family supplement under Division
4E of Part
3, means:
(i)
the claimant; and
(ii)
if the claim is for payment of single income family supplement for a past period - any partner of the claimant during the past period.
History
Definition of "TFN claim person" amended by No 22 of 2017, s 3 and Sch 1 item 80, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
in relation to a claim by a claimant who is an individual for child care benefit under Subdivision A of Division 4 of Part 3, means:
(i)
the claimant; and
(ii)
if the claim is for payment of child care benefit by fee reduction - the claimant's partner (if any) at the time of the claim; and
(iii)
if the claim is for payment of child care benefit for a past period for care provided by an approved child care service - any partner of the claimant during the past period; or
Definition of "TFN claim person" amended by No 70 of 2013, s 3 and Sch 2A item 29, by substituting "a stillborn baby payment" for "baby bonus" in para (c), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
Definition of "TFN claim person" amended by No 49 of 2012, s 3 and Sch 1 item 17, by omitting "or maternity immunisation allowance" after "baby bonus" in para (c), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Definition of "TFN claim person" amended by No 141 of 2011, s 3 and Sch 8 item 6, by inserting para (d), applicable in relation to the 2012-13 income year and later income years.
Definition of "TFN claim person" amended by No 82 of 2007, s 3 and Sch 6 item 25, by substituting "baby bonus" for "maternity payment" in para (c), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
Definition of "TFN claim person" amended by No 59 of 2004, s 3 and Sch 2 item 12, by substituting "maternity payment" for "maternity allowance" in para (c), effective 1 July 2004. No 59 of 2004, s 3 and Sch 2 item 14 contains the following saving provision:
14 Saving provision for claims for maternity allowance
(1)
Despite the amendments of section 3 of the A New Tax System (Family Assistance) (Administration) Act 1999, that Act applies in relation to claims for maternity allowance as if the amendments had not been made.
(2)
It does not matter whether the claims were or are made before, on or after commencement.
Definition of "TFN claim person" amended by No 30 of 2003, s 3 and Sch 2 item 14, by inserting para (c), effective 15 April 2003.
Definition of "TFN claim person" substituted by No 45 of 2000, s 3 Sch 2 item 65, effective 1 July 2000. For transitional provisions see note under s 69. The definition formerly read:
TFN claim person
, in relation to a claim under Subdivision A of Division 1 of Part 3, means:
(a)
the claimant; and
(b)
if the claim is for payment of family tax benefit by instalment-the claimant's partner (if any) at the time of the claim; and
(c)
if the claim is for payment of family tax benefit for a past period-any partner of the claimant during the past period.
TFN determination person
means:
(a)
in relation to family tax benefit and:
(i)
a determination under which the claimant is entitled to be paid family tax benefit by instalment - the claimant or any partner of the claimant at any time since the determination was made; or
(ii)
a determination under which the claimant is entitled to be paid family tax benefit for a past period - the claimant or any partner of the claimant during the past period; or
(b)
for the purposes of a determination under Division
3 of Part
3A (payment of child care subsidy and additional child care subsidy) for an individual for a week - the individual and anyone who was the partner of the individual on the first Monday of the CCS fortnight to which the determination relates; or
(c)
in relation to single income family supplement and a determination under which the claimant is entitled to be paid single income family supplement for a past period - the claimant or any partner of the claimant during the past period.
History
Definition of "TFN determination person" amended by No 22 of 2017, s 3 and Sch 1 item 81, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
in relation to child care benefit and:
(i)
a determination under which the claimant who is an individual is conditionally eligible for child care benefit by fee reduction - the claimant or any partner of the claimant at any time since the determination was made; or
(ii)
a determination under which the claimant who is an individual is entitled to be paid child care benefit for a past period for care provided by an approved child care service - the claimant or any partner of the claimant during the past period; or
Definition of "TFN determination person" amended by No 141 of 2011, s 3 and Sch 8 item 7, by inserting para (c), applicable in relation to the 2012-13 income year and later income years.
Definition of "TFN determination person" substituted by No 45 of 2000. For transitional provisions see note under s 69. The definition formerly read:
TFN determination person
means:
(a)
in relation to a determination under which the claimant is entitled to be paid family tax benefit by instalment-the claimant or any partner of the claimant at any time since the determination was made; or
(b)
in relation to a determination under which the claimant is entitled to be paid family tax benefit for a past period-the claimant or any partner of the claimant during the past period.
TFN substitution person
, in relation to a claim:
(a)
by an individual for payment of family tax benefit by single payment/in substitution because of the death of another individual based on eligibility for an amount of family tax benefit under section
33 of the Family Assistance Act; or
(b)
by an individual for CCS in substitution for an individual who has died; or
(c)
by an individual for payment of a stillborn baby payment in substitution because of the death of another individual; or
(d)
by an individual for payment of single income family supplement by single payment/in substitution because of the death of another individual based on eligibility for an amount of single income family supplement under section
57GG of the Family Assistance Act;
means the deceased individual and any partner of the deceased individual during the period in respect of which the payment is claimed.
History
Definition of "TFN substitution person" amended by No 22 of 2017, s 3 and Sch 1 item 82, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service based on eligibility for an amount of child care benefit under section 46 of the Family Assistance Act; or
Definition of "TFN substitution person" amended by No 70 of 2013, s 3 and Sch 2A item 30, by substituting "a stillborn baby payment" for "baby bonus" in para (c), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
Definition of "TFN substitution person" amended by No 49 of 2012, s 3 and Sch 1 item 18, by omitting "or maternity immunisation allowance" after "baby bonus" in para (c), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Definition of "TFN substitution person" amended by No 141 of 2011, s 3 and Sch 8 items 8 and 9, by inserting "or" at the end of para (c) and inserting para (d), applicable in relation to the 2012-13 income year and later income years.
Definition of "TFN substitution person" amended by No 82 of 2007, s 3 and Sch 6 item 26, by substituting "baby bonus" for "maternity payment" in para (c), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
Definition of "TFN substitution person" amended by No 59 of 2004, s 3 and Sch 2 item 13, by substituting "maternity payment" for "maternity allowance" in para (c), effective 1 July 2004. For saving provision, see note under definition of "TFN claim person".
Definition of "TFN substitution person" amended by No 30 of 2003, s 3 and Sch 2 item 15, by inserting para (c), effective 15 April 2003.
Definition of "TFN substitution person" inserted by No 45 of 2000. For transitional provisions see note under s 69.
withholding amount
has the meaning given by subsection 67EB(3).
History
Definition of "withholding amount" inserted by No 22 of 2017, s 3 and Sch 1 item 83, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
3(2)
Expressions used in this Act that are defined in the Family Assistance Act have the same meaning as in that Act.
3(3)
(Repealed by No 30 of 2003)
History
S 3(3) repealed by No 30 of 2003, s 3 and Sch 2 item 72, effective 1 July 2000. S 3(3) formerly read:
3(3)
For the purposes of this Act, the
CPC rate
(
combined pensioner couple rate
) at a particular time is twice the amount that is, at that time, the maximum basic rate of age pension payable to a person under the Social Security Act 1991 in accordance with item 2 of Table B in point 1064-B1 of Pension Rate Calculator A in section 1064 of that Act.
S 3(3) inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
3(4)
A reference to a
determination
is a reference to a determination as originally made or, if the determination has been varied, as varied.
History
S 3(4) inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
3(4A)
(Repealed by No 22 of 2017)
History
S 3(4A) repealed by No 22 of 2017, s 3 and Sch 1 item 84, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 3(4A) formerly read:
3(4A)
The Minister may, by legislative instrument, specify a payment for the purposes of paragraph (e) of the definition of
child care service payment
in subsection (1). The payment must be one made to child care services under a scheme or program (however described) administered by the Department.
S 3(4A) inserted by No 79 of 2011, s 3 and Sch 1 item 2, effective 26 July 2011.
3(4B)
(Repealed by No 22 of 2017)
History
S 3(4B) repealed by No 22 of 2017, s 3 and Sch 1 item 84, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 3(4B) formerly read:
3(4B)
For the purposes of the definition of
large long day care centre operator
, the Minister may, by legislative instrument, vary the number of approved centre based long day care services specified in paragraph (a) or (b) of the definition.
S 3(4B) inserted by No 120 of 2011, s 3 and Sch 1 item 7, effective 15 October 2011. No 120 of 2011, s 3 and Sch 1 item 26 contains the following application provision:
26 Application
26
The Secretary may only give a notice under section 219GA of the A New Tax System (Family Assistance) (Administration) Act 1999 (as inserted by this Schedule) in respect of a financial year that begins on or after 1 July 2010.
3(5)
For the purposes of the family assistance law:
(a)
a reference to the approved provider of a child care service or of an approved child care service is a reference to the provider approved in respect of the service; and
(b)
a reference to the provider of a child care service is a reference to:
(i)
the provider approved in respect of the service (if any); or
(ii)
if a provider is not approved in respect of the service - the provider that operates the service.
History
S 3(5) substituted by No 22 of 2017, s 3 and Sch 1 item 84, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 3(5) formerly read:
3(5)
For the purposes of paragraph (b) of the definition of
reporting period
, the Secretary may determine that a specified period that is not a quarter is the reporting period for:
(a)
one approved child care service; or
(b)
a class of approved child care services.
S 3(5) inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
3(6)
For the purposes of the family assistance law:
(a)
a reference to an approved child care service of a provider or of an approved provider is a reference to a child care service in respect of which the provider is approved; and
(b)
a reference to a child care service of a provider or of an approved provider is a reference to a child care service in respect of which the provider is approved or which is operated by the provider.
Note:
A provider can only be approved in respect of a service it operates. See section 194B.
History
S 3(6) substituted by No 22 of 2017, s 3 and Sch 1 item 84, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 3(6) formerly read:
3(6)
If the Secretary makes a determination under subsection (5), the Secretary must give the service, or services concerned, notice of the reporting period determined in respect of the service.
S 3(6) inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 3A
3A
Application of the
Criminal Code
Chapter 2 of the
Criminal Code applies to all offences against this Act.
History
S 3A inserted by No 137 of 2001, s 3 and Sch 1 item 3, effective 1 October 2001.
SECTION 4
Approval of use of electronic equipment etc to do things for the purposes of the family assistance law
4(1)
If, under a provision of the family assistance law, the Secretary or another officer may approve the form, manner or way of:
(a)
making or withdrawing any application or claim; or
(b)
doing any other thing that is required or permitted to be done for the purposes of that law;
then, without limiting that provision, the Secretary or other officer may approve the making or withdrawing of the application or claim, or the doing of the other thing:
(c)
by the use of a telecommunications system or other electronic equipment; or
(d)
by the use of software registered with the Secretary.
History
S 4 amended by No 118 of 2007, s 3 and Sch 1 item 9, by substituting all the words after "withdrawing of the application or claim,", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. The words formerly read:
or the doing of the other thing, by the use of a telecommunications system or other electronic equipment
4(2)
A person may apply to have software registered by the Secretary for the purposes of a particular application, claim or other thing, or a class of applications, claims or other things.
History
S 4(2) inserted by No 118 of 2007, s 3 and Sch 1 item 10, effective 29 June 2007.For application and transitional provisions see note under Pt 8A heading.
4(3)
The Secretary may, at his or her discretion, register the software for the purposes of that application, claim or other thing, or class of applications, claims or other things.
History
S 4(3) inserted by No 118 of 2007, s 3 and Sch 1 item 10, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 4A
Meaning of large child care provider
4A(1)
A provider is a
large child care provider
, for a financial year, if, at any time in the financial year:
(a)
the provider operates 25 or more approved child care services; or
(b)
the provider is one of 2 or more related providers who together operate 25 or more approved child care services; or
(c)
the provider proposes to operate, or is one of 2 or more related providers who propose to together operate, 25 or more approved child care services.
Note:
The approved child care services may be any of the types referred to in the table in subclause 2(3) of Schedule 2 to the Family Assistance Act.
History
S 4A(1) substituted by No 66 of 2022, s 3 and Sch 2 item 4, effective 1 July 2023. S 4A(1) formerly read:
4A(1)
A provider is a
large centre-based day care provider
, for a financial year, if, at any time in the financial year:
(a)
the provider operates 25 or more approved child care services that are centre-based day care services; or
(b)
the provider is one of 2 or more related providers who together operate 25 or more approved child care services that are centre-based day care services; or
(c)
the provider proposes to operate, or is one of 2 or more related providers who propose to together operate, 25 or more approved child care services that are centre-based day care services.
4A(2)
The Minister's rules may prescribe a number other than 25 for the purposes of paragraphs
(1)(a),
(b) and
(c). If the Minister's rules do so, those paragraphs are taken to refer to the prescribed number.
4A(3)
The providers in a group of 2 or more providers are
related providers
for a financial year for the purposes of subsection
(1) if, at any time during the financial year, each provider in the group is related to at least one other provider in the group in any of the following ways:
(a)
the providers have in common 25% or more of the persons who are concerned in, or take part in, their management;
(b)
one provider owns 15% or more of the other provider;
(c)
one provider is entitled to receive 15% or more of any dividends paid by the other provider.
History
S 4A substituted by No 22 of 2017, s 3 and Sch 1 item 85, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 4A formerly read:
SECTION 4A Rate and amount of CCB by fee reduction may be zero
4A
For the purposes of this Act and the Family Assistance Act:
(a)
a rate calculated under subsection 50Z(1), or recalculated under subsection 50ZA(1), may be a zero rate; and
(b)
an amount calculated under subsection 50Z(1), or recalculated under subsection 50ZA(1), may be a nil amount.
S 4A inserted by No 53 of 2008, s 3 and Sch 1 item 16, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
PART 3 - PAYMENT OF FAMILY ASSISTANCE (OTHER THAN CHILD CARE SUBSIDY AND ADDITIONAL CHILD CARE SUBSIDY)
History
Pt 3 heading substituted by No 22 of 2017, s 3 and Sch 1 item 86, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The heading formerly read:
PART 3 - PAYMENT OF FAMILY ASSISTANCE
Division 1 - Family tax benefit
Subdivision A - Making claims
SECTION 5
Need for a claim
5(1)
The only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision.
5(2)
A claim is not required for an amount of family tax benefit under section
58AA of the Family Assistance Act.
History
S 5 amended by No 70 of 2013, s 3 and Sch 2A items 11 and 12, by renumbering s 5 to s 5(1) and inserting s 5(2), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
SECTION 6
6
Who can claim
The only persons who can make a claim in accordance with this Subdivision are individuals or approved care organisations.
SECTION 7
How to claim
7(1)
An individual or approved care organisation (a
claimant
) may make a claim:
(a)
for payment of family tax benefit by instalment; or
(b)
for payment of family tax benefit for a past period; or
(c)
in the case only of a claimant who is an individual - for payment of family tax benefit by single payment/in substitution because of the death of another individual.
Form etc of claim
7(2)
To be effective:
(a)
a claim must:
(i)
be made in a form and manner; and
(ii)
contain any information; and
(iii)
be accompanied by any documents;
required by the Secretary; and
(aa)
in the case of a claim for family tax benefit by instalment - the bank account requirement set out in section
7A must be satisfied in relation to the claim; and
(b)
in the case of a claim by an individual for payment of family tax benefit by instalment or for a past period - the tax file number requirement in section
8 must be satisfied in relation to the claim; and
(c)
in the case of a claim by an individual for payment of family tax benefit in substitution because of the death of another individual - the tax file number requirement in section
8A must be satisfied in relation to the claim.
History
S 7(2) amended by No 45 of 2000, s 3 Sch 2 items 2 and 3, by inserting paras (aa) and (c), effective 1 July 2000. For transitional provisions see note under s 7A.
7(3)
A claim is not effective if it is made before the early claim day.
History
S 7(3) inserted by No 105 of 2010, s 3 and Sch 1 item 21, effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
SECTION 7A
Bank account details or statement to be provided for claims for family tax benefit by instalment to be effective
7A(1)
This section sets out the bank account requirement that must be satisfied in relation to a claim for the purposes of paragraph
7(2)(aa) (which states what is required for certain claims to be effective).
Requirement concerning bankaccount details
7A(2)
The requirement is that the claimant provide:
(a)
details of a bank account maintained by the person alone or jointly or in common with someone else into which instalments of family tax benefit are to be paid; or
(b)
a statement that the claimant will nominate, and provide details of, such a bank account within 28 days after the claim is made.
How details or statement to be given
7A(3)
The bank account details or statement must be provided in the claim.
Exemption from bank account requirement
7A(4)
The Secretary may determine that the requirement in subsection (2) does not apply to a claimant if the Secretary considers that it is appropriate to exempt the claimant from the requirement.
History
S 7A inserted by No 45 of 2000, s 3 Sch 2 item 4, effective 1 July 2000.
Act No 45 of 2000 contained the following transitional provisions:
Schedule 5 - Transitional and saving provisions associated with the establishment of a scheme for the payment of family tax benefit, maternity allowance and maternity immunisation allowance
SECTION 1 Definitions
1(1)
In this Schedule, unless the contrary intention appears:
approved care organisation
means an organisation that is taken, by virtue of the operation of subitem (2), to be an approved care organisation for the purposes of the Family Assistance Act.
Family Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
Family Assistance Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
family assistance law
has the same meaning as in subsection 3(1) of the Family Assistance Administration Act.
family benefit
means payments of:
(a)
family allowance; or
(b)
family tax payment; or
(c)
parenting payment in the nature of non-benefit PP (partnered);
payable under the social security law.
MAT
means maternity allowance within the meaning of subsection 3(1) of the Family Assistance Administration Act.
MIA
means maternity immunisation allowance within the meaning of subsection 3(1) of the Family Assistance Administration Act.
receiving
, in relation to family benefit, has the meaning given under subitem (3).
Secretary
, in relation to an act or thing done, or a decision or determination made, under particular legislation, means the Secretary of the Department administered by the Minister administering that legislation.
social security law
means the Social Security Act 1991 and the Social Security (Administration) Act 1999.
1(2)
Any organisation that, immediately before 1 July 2000, was an approved care organisation for the purposes of the Social Security Act 1991 is taken to have been approved under section 20 of the Family Assistance Act, with effect from that date, as an approved care organisation, for the purposes of the latter Act.
1(3)
For the purposes of this Part, an individual or an approved care organisation is taken to be receiving payments of family benefit under the Social Security Act 1991 from the earliest date on which such payments are payable to the individual or to the organisation, as the case requires, even if the first instalment of that benefit is not paid until a later day.
SECTION 2 Individuals receiving family benefit treated as having lodged effective claim for family tax benefit by instalment
2(1)
If, immediately before 1 July 2000, an individual was receiving family benefit, then, with effect from that date, that individual is taken, subject to items 4 and 5, to have made aneffective claim for family tax benefit by instalment under subsection 7(2) of the Family Assistance Administration Act as amended by this Act.
2(2)
If, before 1 July 2000, an individual receiving family benefit had provided bank account details for the purposes of making the claim for, or receiving, such benefits, those details are taken to have been provided in the context of the effective claim that is taken to have been made under subitem (1).
SECTION 3 Approved care organisations receiving family allowance treated as having lodged effective claim for family tax benefit by instalment
3(1)
If, immediately before 1 July 2000, an approved care organisation was receiving family allowance, then, with effect from that date, that organisation is taken, subject to item 5, to have made an effective claim for family tax benefit by instalment under subsection 7(2) of the Family Assistance Administration Act as amended by this Act.
3(2)
If, before 1 July 2000, the organisation had provided bank account details for the purposes of making the claim for, or receiving, such family allowance payments, those details are taken to have been provided in the context of the effective claim that is taken to have been made under subitem (1).
SECTION 4 Special rules relating to outstanding TFN requirements
4
If:
(a)
an individual has been requested, before 1 July 2000, under section 75 of the Social Security (Administration) Act 1999, to provide a tax file number in relation to a claim for, or the receipt of, family benefit; and
(b)
the individual has not, before that date, provided that tax file number; and
(c)
as at 1 July 2000, less than 28 days have elapsed since the request to provide that number;
then, for the purposes of section 27 of the Family Assistance Administration Act as amended by this Act:
(d)
the Family Assistance Administration Act as so amended is treated as having been in force when the requirement to provide that tax file number was made; and
(e)
the requirement to provide that tax file number is taken to have been made, at the time when it was made, under section 26 of the Family Assistance Administration Act as so amended and as so in force.
SECTION 5 Special rules relating to outstanding bank account requirements
5
If:
(a)
an individual or an approved care organisation has been requested, before 1 July 2000, under section 55 of the Social Security (Administration) Act 1999 to nominate a bank account into which family benefit can be paid; and
(b)
the individual or organisation has not, before that date, nominated a bank account; and
(c)
as at 1 July 2000, less than 28 days have elapsed since the request to nominate an account;
then, for the purposes of section 27 of the Family Assistance Administration Act as amended by this Act:
(d)
the Family Assistance Administration Act as so amended is treated as having been in force when the requirement to nominate a bank account was made; and
(e)
the requirement to nominate a bank account is taken to have been made, at the time when it was made, under section 26A of the Family Assistance Administration Act as so amended and as so in force.
SECTION 6 The making of determinations
6(1)
On, or as soon as practicable after, 1 July 2000, the Secretary will assess the eligibility for family tax benefit by instalment of each individual, and each approved care organisation, that is taken to have lodged an effective claim.
6(2)
If, for the purposes of making a determination under section 16 of the Family Assistance Administration Act as amended by this Act in relation to an individual or approved care organisation to which subitem (1) refers:
(a)
the Secretary has, before 1 July 2000, sought from an individual or an approved care organisation any information necessary for the purposes of making such a determination; and
(b)
that information has not been provided;
the Secretary may make a determination under section 19 of the Family Assistance Administration Act as so amended to the effect that the individual or organisation is not entitled to be paid family tax benefit by instalment for each day while the determination is in force.
6(3)
For the avoidance of doubt, such a determination does not prevent an individual or organisation that later provides information as required by the Secretary from claiming under the Family Assistance Administration Act as so amended:
(a)
family tax benefit by instalment when that information is so provided; and
(b)
family tax benefit for the past period between 1 July 2000 and the time when a determination of entitlement to family tax benefit by instalment is made.
SECTION 7 Directions concerning payments to third parties
7
If, immediately before 1 July 2000, there was in force a direction by the Secretary under subsection 44(3) of the Social Security (Administration) Act 1999 to the effect that thewhole or a part of a person's family benefit payment be paid to someone else on behalf of the person, that direction has effect, on and after that date, as if it were a direction to the same effect given by the Secretary under subsection 23(4) of the Family Assistance Administration Act as amended by this Act in relation to the payment of family tax benefit in respect of that person.
SECTION 8 Instalment periods
8(1)
If:
(a)
an individual or an approved care organisation was receiving family benefit by way of family allowance or family tax payment immediately before 1 July 2000; and
(b)
that individual or organisation received, or last received, a payment of that family allowance or family tax payment in respect of a period commencing less than 14 days before 1 July 2000; and
(c)
the Secretary makes a determination under section 16 of the Family Assistance Administration Act as amended by this Act in respect of the entitlement of that individual or organisation to family tax benefit with effect from that day;
then:
(d)
the first instalment of family tax benefit is to be for a period starting on 1 July 2000 and ending 14 days after the beginning of the last instalment of family benefit; and
(e)
instalments of family tax benefit thereafter, subject to any change that the Secretary may make under subsection 23(3) of the Family Assistance Administration Act as so amended, are to be for successive periods of 14 days.
8(2)
If:
(a)
an individual was not receiving family benefit by way of family allowance immediately before 1 July 2000 but was receiving family benefit by way of non-benefit PP (partnered) immediately before that date; and
(b)
that individual received, or last received, a payment of that non-benefit PP (partnered) in respect of a period commencing less than 14 days before 1 July 2000; and
(c)
the Secretary makes a determination under section 16 of the Family Assistance Administration Act as amended by this Act in respect of the entitlement of that individual to family tax benefit with effect from that day;
then:
(d)
the first instalment of family tax benefit is to be for a period starting on 1 July 2000 and ending 14 days after the beginning of the last instalment of non-benefit PP (partnered); and
(e)
instalments of family tax benefit thereafter, subject to any change that the Secretary may make under subsection 23(3) of the Family Assistance Administration Act as so amended, are to be for successive periods of 14 days.
SECTION 9 Claims for family benefit that are undetermined as at 1 July 2000
9(1)
If:
(a)
before 1 July 2000, a person lodged a claim for family benefit by way of family allowance or family tax payment; and
(b)
that claim was not determined before that date; and
(c)
the person was, at the time of the claim, or becomes, before 1 July 2000, qualified for family benefit of that kind;
the claim is to be determined under the social security law as in force before 1 July 2000, as if:
(d)
the social security law as so in force had continued in force; and
(e)
the claim related only to the period preceding 1 July 2000.
9(2)
If:
(a)
before 1 July 2000, a person lodged a claim for family benefit by way of family allowance or family tax payment in anticipation of becoming qualified for that benefit; and
(b)
the claim was not determined by that date; and
(c)
the person does not become qualified for the relevant family benefit before 1 July 2000;
the claim is to be taken to have lapsed on that date.
9(3)
If:
(a)
before 1 July 2000, a person has lodged a claim for parenting payment; and
(b)
the claim has not been determined before that date; and
(c)
the person was, at the time of the claim, or becomes, before 1 July 2000, qualified for family benefit of that kind;
then:
(d)
the claim is to be determined under the social security law as in force before 1 July 2000 as if the law as so in force had continued: and
(e)
if parenting payment would be paid under the law as so in force at the rate applicable for non-benefit PP (partnered) - the claim is to be determined as if it related only to the period preceding 1 July 2000.
9(4)
If:
(a)
before 1 July 2000, a person lodged a claim for parenting payment in anticipation of becoming qualified for that payment; and
(b)
the claim was not determined by that date; and
(c)
the person does not become qualified for parenting payment before 1 July 2000; and
(d)
if the person were to become qualified for parentingpayment on or after that date - it would be parenting payment in the nature of non-benefit PP (partnered) and not some other form of parenting payment;
the claim is to be taken to have lapsed on that date.
SECTION 10 Certain claims for family benefit will be admitted on or after 1 July 2000
10(1)
In this item:
backdated claim period
means a period after the occurrence of a particular event during which a claim for family benefit with effect from that event will be allowed.
10(2)
If:
(a)
a person did not make a claim for family benefit before 1 July 2000; and
(b)
but for the amendment of the social security law with effect from 1 July 2000, if the person had made such a claim after that date, the backdated claim period would have extended back to the occurrence of a particular event before that date;
then:
(c)
the person may make such a claim on or after 1 July 2000 as if those amendments had not been made; and
(d)
the claim can be dealt with in so far as the backdated claim period would permit a claim in respect of a period before 1 July 2000.
SECTION 11 Transfer of claims for maternity allowance or maternity immunisation allowance from social security law to family assistance law
11(1)
If:
(a)
a person claims maternity allowance or maternity immunisation allowance under the social security law before 1 July 2000; and
(b)
the claim has not been determined as at that date;
the claim is to be treated as if it were a claim for MAT or MIA under Division 3 of Part 3 of the Family Assistance Administration Act as amended by this Act and not as such a claim for the corresponding allowance under the Social Security Act 1991.
11(2)
If a person purports to claim maternity allowance or maternity immunisation allowance under the social security law on or after 1 July 2000, that claim is to be treated as if it were a claim for MAT or MIA, as the case requires, under Division 3 of Part 3 of the Family Assistance Administration Act as amended by this Act and not as such a claim for the corresponding allowance under the social security law.
11(3)
A person who has been paid maternity allowance or maternity immunisation allowance under the social security law in respect of a particular child cannot claim MAT or MIA for the same child under Division 3 of Part 3 of the Family Assistance Administration Act as amended by this Act.
SECTION 12 Applications for family benefit, maternity allowance or maternity immunisation allowance made after 1 July 2000 on behalf of another person
12(1)
If:
(a)
an amount of family benefit is payable to a person; and
(b)
the person dies before receiving that amount; and
(c)
another person applies, on or after 1 July 2000, to receive the amount; and
(d)
the application is made:
(i)
within 26 weeks after the first person's death; or
(ii)
within such further period as is allowed by the Secretary in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the Secretary's opinion, is best entitled to it.
12(2)
If:
(a)
an amount of maternity allowance or maternity immunisation allowance claimed under the social security law is payable to a person in respect of a particular child; and
(b)
the person dies before receiving that amount; and
(c)
another person applies, on or after 1 July 2000, to receive the amount; and
(d)
the application is made:
(i)
within 26 weeks after the first person's death; or
(ii)
within such further period as is allowed by the Secretary in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the Secretary's opinion, is best entitled to it.
12(3)
If the Secretary pays an amount under subitem (1) in respect of family benefit of a particular kind claimed under the social security law, the Commonwealth has no further liability to any person in respect of family benefit of that kind under the social security law or in respect of any family benefit of a like kind under the family assistance law.
12(4)
If the Secretary pays an amount under subitem (2) in respect of a particular child, the Commonwealth has no further liability to any person in respect of maternity allowance or maternity immunisation allowance under the social security law, or in respect of MAT or MIA under the family assistance law, in respect of that child.
12(5)
For the purpose of Part 5 of the Family Assistance Administration Act, a decision of the Secretary under subitem (1) or (2) has effect as if it were a decision of an officer under the family assistance law.
SECTION 13 Claims for advance payment under Social Security Law
13(1)
If:
(a)
an individual had, under section 864A of the Social Security Act 1991 as in force before 1 July 2000, requested a family allowance advance in respect of an advance period, within the meaning of that Act, that ended before 1 July 2000, and all subsequent advance periods; and
(b)
that request had been granted;
the grant has effect, in relation to the advance period commencing on 1 July 2000 and all subsequent advance periods as if:
(c)
it were a grant made under section 33 of the Family Assistance Administration Act as amended by this Act; and
(d)
it related not to qualification for family allowance advance but rather to an entitlement to family tax benefit advance in relation to the individual's family tax benefit as determined by the Secretary in accordance with item 6.
13(2)
For the avoidance of doubt, an individual who is treated, by virtue of the operation of subitem (1), as having made and been granted a request under section 33 of the Family Assistance Administration Act as amended by this Act, may on 1 July 2000, or at any time after that date, withdraw the request in so far as it is treated as relating to standard advance periods within the meaning of that Act as so amended for which the individual has not been paid a family tax benefit advance.
SECTION 14 Saving provision relating to information collection
14
If:
(a)
family benefit, or maternity allowance or maternity immunisation allowance claimed under the social security law, is payable to a person; and
(b)
the Secretary decides, on or after 1 July 2000, to seek further information in relation to the benefit or allowance;
the Secretary may, under Division 1 of Part 5 of the Social Security (Administration) Act 1999, require the provision of information concerning that benefit or allowance, or concerning the person to whom it is payable, as if that benefit or allowance had continued, on and after 1 July 2000, to be a social security payment as defined for the purposes of the Social Security (Administration) Act 1999.
SECTION 15 Portability
15(1)
If:
(a)
immediately before 1 July 2000, an individual
(i)
is receiving family benefit in the nature of family allowance in respect of another individual; or
(ii)
is receiving family benefit in the nature of parenting payment because the individual has a PP child; and
(b)
the person in respect of whom, or because of whom, that benefit is received (the
child
) is absent from Australia immediately before that date because:
(i)
having left Australia, the child has not returned before that date; or
(ii)
having been born outside Australia, the child has not subsequently come to Australia before that date;
the child is not, if that absence extends for a period of 3 years beginning on the first day of the absence, an FTB child at any time after the period of 3 years ends.
15(2)
In determining whether the period of absence of the child extends for 3 years beginning on the first day of the child's absence:
(a)
any return or coming to Australia before 1 July 2000 that would have been disregarded under the Social Security Act 1991 as in force before that date had that Act as so in force continued unamended after that date is to be disregarded for the purposes of subitem (1); and
(b)
any return or coming to Australia on or after 1 July 2000 that would have been disregarded under section 24 of the Family Assistance Act as amended by this Act if that section were to have applied to the person is also to be disregarded for the purposes of that subitem.
15(3)
If:
(a)
the child referred to in paragraph (1)(b) is absent from Australia for a continuous period of more than 26 weeks (whether or not that 26 weeks ends before 1 July 2000); and
(b)
an individual having an entitlement to family tax benefit in respect of the child is not an absent overseas recipient within the meaning of subsection 62(2) of the Family Assistance Act as amended by this Act during any part of the child's absence from Australia occurring after 26 weeks and after the individual becomes so entitled;
Schedule 1 to the Family Assistance Act as so amended applies in relation to that entitlement during that part of the child's absence that is referred to in paragraph (b) with the modifications set out in the table included in subsection 63(4) of that Act as so amended.
15(4)
If:
(a)
the child referred to in paragraph (1)(b) is absent from Australia for a continuous period of more than 26 weeks (whether or not that 26 weeks ends before 1 July 2000); and
(b)
the child comes to Australia; and
(c)
the child leaves Australia less than 26 weeks after coming to Australia; and
(d)
an individual having an entitlement to family tax benefit in respect of the child is not an absent overseas recipient within the meaning of subsection 62(2) of the Family Assistance Act as amended by this Act during any part of the child's absence from Australia referred to in paragraph (c) after the individual becomes so entitled;
Schedule 1 to the Family Assistance Act as so amended applies in relation to that entitlement during that part of the child's absence that is referred to in paragraph (d) from Australia with the modifications set out in the table included in subsection 63(4) of that Act as so amended.
SECTION 16 Lump sum bereavement payments for certain persons receiving non-benefit PP (partnered) at death of child
16(1)
If:
(a)
a child died less than 4 weeks before 1 July 2000; and
(b)
at the time of the child's death, the child was the only PP child of a person; and
(c)
under section 512A of the Social Security Act 1991 as in force immediately before 1 July 2000, if that section had continued in force after that date, the person would, but for this item, have qualified to continue to receive that parenting payment for the period of 4 weeks that starts on the day following the day of the child's death;
so much of the parenting payment as would have been payable in respect of each day in that 4 week period that occurs after 30 June 2000:
(d)
continues to be payable as if section 512A of that Act as so in force had not been repealed but had so provided; and
(e)
is payable as a single lump sum on, or as soon as practicable after, 1 July 2000.
16(2)
For the purposes of Part 4 of the Social Security (Administration) Act 1999, a decision made for the purposes of section 512A of the Social Security Act 1991 as continued in force for the purposes of subitem (1) has effect as a decision of an officer under the social security law.
SECTION 17 Lump sum bereavement payments for certain persons receiving family tax payment at death of child
17(1)
If:
(a)
a child died less than 4 weeks before 1 July 2000; and
(b)
at the time of the child's death, a person was receiving family tax payment in respect of that child or of children including that child; and
(c)
under section 900AZZC of the Social Security Act 1991 as in force before 1 July 2000, if that section had continued in force after that date, the person would, but for this item, have qualified to continue to receive family tax payment for the period of 4 weeks that starts on the day following the day of the child's death at the rate that would have been applicable if the child had not died;
so much only of the amount of family tax payment that would have been payable in respect of each day in that 4 week period that occurs after 30 June 2000 and that is attributable to that child:
(d)
continues to be payable to the person as if section 900AZZC of that Act as so in force had not been repealed but had so provided; and
(e)
is payable as a single lump sum on, or as soon as practicable after, 1 July 2000.
17(2)
For the purposes of Part 4 of the Social Security (Administration) Act 1999, a decision made for the purposes of section 900AZZC of the Social Security Act 1991 as continued in force for the purposes of subitem (1) has effect as a decision of an officer under the social security law.
SECTION 18 Lump sum bereavement payments for certain persons receiving family allowance at death of child
18(1)
If:
(a)
a child died before 1 July 2000; and
(b)
at the time of the child's death a person was receiving family allowance in respect of that child or of children including that child; and
(c)
under Subdivision A or B of Division 10 of Part 2.17 of the Social Security Act 1991 as in force before 1 July 2000, if those Subdivisions had continued in force after that date, the person would, but for this item, have qualified to continue to receive family allowance for a period (the
bereavement period
) that starts on the day following the day of the child's death at the rate that would have been applicable if the child had not died;
so much only of the amount of family allowance that would have been payable in respect of each day of the bereavement period that occurs after 30 June 2000 and that is attributable to that child:
(d)
continues to be payable to the person as if that Subdivision of that Act as so in force had not been repealed but had so provided; and
(e)
is payable as a single lump sum on, or as soon as practicable after, 1 July 2000.
18(2)
For the purposes of Part 4 of the Social Security (Administration) Act 1999, a decision under Subdivision A or B of Division 10 of Part 2.17 of the Social Security Act 1991 as continued in force for the purposes of subitem (1) has effect as a decision of an officer under the social security law.
SECTION 19 Set-offs
19(1)
If:
(a)
a child dies before 1 July 2000; and
(b)
before the Secretary learns of the death of the child, an individual has begun to receive family tax benefit in respect of the child in accordance with a determination under section 16 of the Family Assistance Administration Act as amended by this Act in respect of any period after 30 June 2000;
the Secretary must, as soon as practicable after learning of the child's death, review that determination in accordance with section 104 of the Family Assistance Administration Act as so amended.
19(2)
If the person continued to receive non-benefit PP (partnered) after 30 June 2000 in respect of the deceased child - the Secretary can set off the amount of any single lump sum due by the Commonwealth under item 16 against any debt arising on a review of family tax benefit conducted in accordance with subitem (1).
19(3)
If the person continued to receive family tax payment after 30 June 2000 and the rate of the payment was attributable, in whole or in part, to the deceased child - the Secretary can set off the amount of any single lump sum due by the Commonwealth under item 17 against any debt arising on a review of family tax benefit conducted in accordance with subitem (1).
19(4)
If the person continued to receive family allowance after 30 June 2000 and the rate of the allowance was attributable, in whole or in part, to the deceased child - the Secretary can set off the amount of any single lump sum due by the Commonwealth under item 18 against any debt arising on a review of family tax benefit conducted in accordance with subitem (1).
SECTION 20 Bereavement payments in relation to the death of a recipient
20(1)
Despite the repeal of section 513A of the Social Security Act 1991 as in force before 1 July 2000, that section is taken to continue in force, on and after that date, so as to facilitate any claim by the partner of a person qualified for parenting payment in respect of a child who has died, for a period of 13 weeks after the death of that child.
20(2)
For the purposes of subitem (1), section 513A of the Social Security Act 1991 as so continued in force has effect as if the reference in the section to the amount of parenting payment that would have been payable includes a reference to any lump sum that would have been payable because of the operation of item 16.
20(3)
Despite the repeal of section 900 of the Social Security Act 1991 as in force before 1 July 2000, that section is taken to continue in force, on and after that date, so as to facilitate any claim by the partner of a person qualified for family allowance in respect of a child who has died, for a period of 13 weeks after the death of that child.
20(4)
For the purposes of subitem (3), section 900 of the Social Security Act 1991 as so continued in force has effect as if the reference:
(a)
in subsection (1) of that section to the sum of the amounts referred to in paragraphs (f), (g) and (h) of that subsection; and
(b)
in subsection (2) of that section to the sum of the amounts referred to in paragraphs (e), (f) and (g) of that subsection;
each includes a reference to any lump sum that would have been payable because of the operation of item 18.
20(5)
For the purposes of Part 4 of the Social Security (Administration) Act 1999, a decision made for the purposes of section 513A, or section 900, of the Social Security Act 1991 as continued in force for the purposes of this item has effect as if it were a decision of an officer under the social security law.
SECTION 21 Provision of TFNs in certain circumstances under
Social Security Act 1991
taken to be provision under Family Assistance Administration Act
21
If the tax file number of an individual has been provided to the Secretary:
(a)
by the individual; or
(b)
by the partner of the individual; or
(c)
by the Commissioner of Taxation on the authority of the individual;
under a provision of the Social Security Act 1991 for a purpose related to a claim for, or to entitlement to, family allowance, family tax payment or parenting payment in the nature of non-benefit PP (partnered), that tax file number is taken, for the purposes of subsection 154A(1) of the Family Assistance Administration Act as amended by this Act, to have been so provided under a provision of that Act as so amended for the purposes of that Act as so amended.
SECTION 22 Saving provision - Part A rate of family tax benefit for families with children not subject to family allowance income test
22(1)
This item applies to an individual who, immediately before 1 July 2000:
(a)
was receiving family allowance under the Social Security Act 1991 in respect of a child; and
(b)
by virtue of the operation of subclause 52(2) or 53(2) of Schedule 1A to that Act - did not have to satisfy the requirements of paragraph 838(1)(c) of that Act in order to be qualified for family allowance for that child; and
(c)
was also receiving either carer allowance or double orphan pension under that Act in respect of that child.
22(2)
If, on or after 1 July 2000, an individual to whom this item applies has at least one FTB child in relation to whom the individual continues to receive either carer allowance or double orphan pension under the Social Security Act 1991, the Part A rate of family tax benefit payable under the Family Assistance Act as amended by this Act to the individual from time to time on or after that date is a rate equal to:
(a)
unless paragraph (b) applies - the Part A rate of family tax benefit that would be payable to the individual under that Act as so amended; or
(b)
if the rate referred to in paragraph (a) is less than the rate (the
saved rate
) that would have been the individual's minimum family allowance rate under the Social Security Act 1991 immediately before 1 July 2000 if that rate were worked out having regard only to those FTB children of the individual in respect of whom the individual continues to receive either carer allowance or double orphan pension under that Act - the saved rate.
22(3)
If, at any time, an individual begins to receive a Part A rate of family tax benefit calculated in accordance with paragraph (2)(a), the person ceases, with effect from that time, to have any entitlement, at any time thereafter, to a Part A rate of family tax benefit at the saved rate.
SECTION 8
Tax file number requirement to be satisfied for claims for family tax benefit by instalment or for a past period
8(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph
7(2)(b) (which states what is required for certain claims to be effective).
8(2)
The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN claim person. However, the requirement does not apply in relation to a TFN claim person if a determination is in force under subsection (7) in relation to the person.
Statement of tax file number
8(3)
The first kind of statement that can be made is a statement of the TFN claim person's tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.
Statement that TFN claim person does not know what his or her tax file number is etc
8(4)
The second kind of statement that can be made is a statement by the TFN claim person 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
8(5)
The third kind of statement that can be made is a statement by the TFN claim person 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.
How statement to be given
8(6)
A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement
8(7)
The Secretary may determine that the requirement in subsection (2) does not apply to a TFN claim person if:
(a)
the person is, or was, the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection (4) or (5).
History
S 8(7) amended by No 45 of 2000, s 3 Sch 2 item 5, by inserting ``, or was,'' after ``is'' in para (a), effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 8A
Tax file number requirement to be satisfied for claim in substitution because of the death of another individual to be effective
8A(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph
7(2)(c) (which states what is required for claims in substitution because of the death of another individual to be effective).
8A(2)
The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN substitution person.
Statement of tax file number
8A(3)
The first kind of statement that can be made is a statement of a TFN substitution person's tax file number. Regardless of whom the TFN substitution person is, this kind of statement can be made by the claimant only.
Statement that TFN substitution person does not know what his or her tax file number is
8A(4)
The second kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual's partner during the period in respect of which the payment is claimed to the effect that the TFN substitution 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
8A(5)
The third kind of statement that can be made is a statement by the TFN substitution person who was the deceased individual's partner during the period in respect of which the payment is claimed to the effect that the TFN substitution 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.
How statement to be given
8A(6)
A statement made by the claimant must be made in the claim. A statement made by a TFN substitution person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement
8A(7)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant does not know the person's TFN.
8A(8)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant cannot obtain a statement referred to in subsection (4) or (5) in respect of the person.
History
S 8A inserted by No 45 of 2000, s 3 Sch 2 item 6, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 9
9
Restrictions on claims for payment of family tax benefit by instalment
A claim for payment of family tax benefit by instalment is not effective if, at the time (the
determination time
) when the claim would be determined:
(a)
the claimant has previously made a claim for payment of family tax benefit by instalment and that claim has not yet been determined; or
(b)
the claimant is already entitled to be paid family tax benefit by instalment; or
(c)
the following apply:
(i)
a determination under section 16 is in force under which the claimant is not, because of a variation of the determination under subsection 27(5), 27A(3), 28A(2), 28B(2), 28B(3), 29(2), 30(2), 30A(2) or 30B(2) entitled to be paid family tax benefit at the determination time or at any later time;
(ii)
the determination time is before the end of the income year following the one in which the variation mentioned in that subsection took effect.
History
S 9 amended by No 122 of 2003, s 3 and Sch 4 item 2, by substituting ``, 30(2), 30A(2) or 30B(2)'' for ``or 30(2)'' in para (c)(i), applicable in relation to departures from Australia before, on or after 1 July 2004 by persons who are absent from Australia on or after that commencement as a result of those departures.
S 9 amended by No 45 of 2000, s 3 Sch 2 item 7, by inserting ``27A(3), 28A(2), 28B(2), 28B(3),'' after ``27(5),'' in subpara (c)(i), effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 10
Restrictions on claims for payment of family tax benefit for a past period
Restriction where previous claim or instalment determination
10(1)
A claim for payment of family tax benefit for a past period is not effective if:
(a)
the claimant has previously made a claim for payment of family tax benefit for any of the past period (whether or not the claim has yet been determined); or
(b)
the claimant was entitled to be paid family tax benefit by instalment at any time in the past period; or
(c)
the following apply:
(i)
a determination under section 16 was in force at any time in the past period under which the claimant was not, because of a variation of the determination under subsection 27(5), 27A(3), 28A(2), 28B(2), 28B(3), 29(2), 30(2), 30A(2) or 30B(2) entitled to be paid family tax benefit;
(ii)
the claim is made before the end of the income year following the one in which the variation mentioned in that subsection took effect.
History
S 10(1) amended by No 122 of 2003, s 3 and Sch 4 item 2, by substituting ", 30(2), 30A(2) or 30B(2)" for "or 30(2)" in para (c)(i), applicable in relation to departures from Australia before, on or after 1 July 2004 by persons who are absent from Australia on or after that commencement as a result of those departures.
S 10(1) amended by No 45 of 2000, s 3 Sch 2 item 8, by inserting "27A(3), 28A(2), 28B(2), 28B(3)," after "27(5)" in para (c)(i), effective 1 July 2000. For transitional provisions see note under s 7A.
Claim must relate to one income year and be made within a certain period
10(2)
A claim for payment of family tax benefit for a past period is not effective if:
(a)
the period does not fall wholly within one income year; or
(b)
the period does fall wholly within one income year (the
relevant income year
) but the claim is made after the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making the claim before the end of that first income year.
History
S 10(2) amended by No 70 of 2013, s 3 and Sch 2B item 15, by substituting para (b), applicable in relation to a past period falling in the 2012-13 income year or a later income year. Para (b) formerly read:
(b)
the period does fall wholly within one income year but the claim is made after the end of the 2 income years immediately following that income year.
S 10(2) amended by No 33 of 2004, s 3 and Sch 1 items 1 and 6, by substituting "2 income years immediately following that income year" for "next income year" in para (b), applicable to a claim for payment of family tax benefit made either before or after the commencement of this Part, if the claim is for a past period that falls wholly within the income year beginning on 1 July 2001 or any later income year.
10(2A)
The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 10(2A) inserted by No 70 of 2013, s 3 and Sch 2B item 16, applicable in relation to a past period falling in the 2012-13 income year or a later income year.
Claim must be accompanied by instalment claim in some circumstances
10(3)
A claim for payment of family tax benefit for a past period is not effective if:
(a)
the period occurs in the income year in which the claim is made; and
(b)
at the time the claim is made, the claimant is eligible for family tax benefit; and
(c)
at the time the claim is made, the claimant is not prevented by section
9 from making an effective claim for payment of family tax benefit by instalment; and
(d)
the claim is not accompanied by a claim for payment of family tax benefit by instalment.
10(4)
A claim for payment of family tax benefit for a past period is not effective if:
(a)
the period occurs in either of the 2 income years before the one in which the claim is made; and
(b)
if the claimant is an individual - at any time during the past period, the claimant, or the claimant's partner, received a social security benefit, social security pension, service pension, income support supplement or veteran payment; and
(c)
at the time the claim is made, the claimant is eligible for family tax benefit; and
(d)
if the claimant is an individual - at the time the claim is made, the claimant, or the claimant's partner, is receiving a social security benefit, social security pension, service pension, income support supplement or veteran payment; and
(e)
at the time the claim is made, the claimant is not prevented by section
9 from making an effective claim for payment of family tax benefit by instalment; and
(f)
the claim is not accompanied by a claim for payment of family tax benefit by instalment.
History
S 10(4) amended by No 17 of 2018, s 3 and Sch 2 item 35, by substituting ", income support supplement or veteran payment" for "or income support supplement" in para (b) and (d), effective 1 May 2018.
S 10(4) amended by No 63 of 2008, s 3 and Sch 6 items 10 and 11, by substituting "either of the 2 income years" for "the income year" in para (a) and substituting ", service pension or income support supplement" for "or service pension" in paras (b) and (d), applicable in relation to claims made on or after 30 June 2008.
10(5)
Paragraph (4)(f) does not apply if, at the time the claim for payment of family tax benefit for a past period is made, subsection
32AE(2) applies in respect of the claimant or subsection
32AE(5) applies in respect of the claimant's partner.
History
S 10(5) amended by No 53 of 2011, s 3 and Sch 5 item 19, by substituting "subsection 32AE(2) applies in respect of the claimant or subsection 32AE(5) applies in respect of the claimant's partner" for "subsection 32AE(2) or (3) applies in respect of the claimant or the claimant's partner", effective 1 July 2011.
S 10(5) inserted by No 38 of 2010, s 3 and Sch 7 item 8, effective 1 July 2010.
Former s 10(5) repealed by No 48 of 2009, s 3 and Sch 1 item 5, effective 1 July 2009. For saving provision, see note under definition of "agency" in s 3(1). S 10(5) formerly read:
Claim cannot be made in same income year as tax instalment deduction reduced on account of family tax benefit
10(5)
A claim for payment of family tax benefit for a past period is not effective if:
(a)
at any time before a determination is made on the claim, the Secretary becomes aware that, during some or all of the past period, a declaration:
(i)
was in force under section 15-50 in Schedule 1 to the Taxation Administration Act 1953; and
(ii)
stated that the claimant, or the claimant's partner, was eligible for family tax benefit and intended to make a claim, after the end of each income year in which the declaration is in force, for payment of family tax benefit for the period during which the declaration was in force; and
(b)
the claim is made in the income year in which the past period occurs.
Former s 10(5) amended by No 179 of 1999, s 3 and Sch 1 items 5 and 6, by substituting "a declaration" for "an employment declaration" in para (a), and "section 15-50 in Schedule 1 to the Taxation Administration Act 1953" for "the Income Tax Regulations" in subpara (a)(i), applicable to a declaration under section 15-50 in Schedule 1 to the Taxation Administration Act 1953 that is given, or taken to have been given, on or after 1 July 2000.
SECTION 11
Restrictions on bereavement claims
Entitlement must not already have been determined, or be awaiting determination, on a previous claim
11(1)
A claim for payment of family tax benefit by single payment/in substitution because of the death of another individual is not effective if the claimant has previously made a claim for payment of family tax benefit because of the death of that individual (whether or not the claim has yet been determined).
Single payment/substitution claims must relate to current or previous income year
11(2)
If a claim for payment of family tax benefit by single payment/in substitution because of the death of another individual is based on eligibility for an amount of family tax benefit under subsection
32(2) or section
33 of the Family Assistance Act, the claim is not effective if it is made after the end of the income year following the one in which the death mentioned in that provision occurred.
SECTION 12
Claim may be withdrawn or varied
12(1)
A claimant may withdraw or vary a claim before the claim is determined.
12(2)
The claimant may only do so in a manner determined by the Secretary.
12(3)
If a claim is withdrawn, it is taken never to have been made.
Subdivision B - Determination of claims etc
SECTION 13
Secretary must determine claim
13(1)
If an effective claim is made, the Secretary must determine the claim in accordance with this Subdivision. If a claim is not effective, it is taken not to have been made.
History
S 13(1) amended by No 45 of 2000, s 3 Sch 2 item 9, by substituting ``Subdivision'' for ``section and sections 16 to 19'', effective 1 July 2000. For transitional provisions see note under s 7A.
13(2)
(Repealed by No 45 of 2000)
History
S 13(2) repealed by No 45 of 2000, s 3 Sch 2 item 10, effective 1 July 2000. For transitional provisions see note under s 7A. S 13(2) formerly read:
Information to be taken into account
13(2)
The Secretary is to make the determination:
(a)
having regard only to the information in the claim (and any accompanying documents or information required by the Secretary); or
(b)
having regard to the things in paragraph (a) and also to any other information or documents (whether or not provided by the claimant).
SECTION 14
Restriction on determining claim where income tax assessment not made
14(1)
If, in relation to a claim for payment of family tax benefit made by an individual:
(a)
the claim is for payment of that benefit for a past period; and
(b)
the past period falls in an income year (the
past period income year
) that is one of the 2 income years before the one in which the claim is made; and
(c)
either or both of subsections (2) and (3) apply;
(d)
(Repealed by No 48 of 2009)
the Secretary can only determine the claim if each assessment concerned has been made.
History
S 14(1) amended by No 48 of 2009, s 3 and Sch 1 item 7, by substituting "an income year (the
past period income year
) that is one of the 2 income years" for "the income year (the
past period income year
)" in para (b), applicable in relation to claims made on or after 1 July 2009. For saving provision, see note under definition of "agency" in s 3(1).
S 14(1) amended by No 48 of 2009, s 3 and Sch 1 items 8 and 9, by substituting para (c) for paras (c) and (d) and substituting "each assessment concerned" for "the assessment", applicable in relation to claims for payment of family tax benefit for a past period falling in the 2009-10 income year or a later income year. For saving provision, see note under definition of "agency" in s 3(1). Paras (c) and (d) formerly read:
(c)
the claimant is required to lodge an income tax return for the past period income year; and
(d)
at the time the claim is made, an assessment has not been made under the Income Tax Assessment Act 1936 of the tax payable on the claimant's taxable income for the past period income year;
14(2)
This subsection applies if:
(a)
the claimant is required to lodge an income tax return for the past period income year; and
(b)
at the time the claim is made, an assessment has not been made under the
Income Tax Assessment Act 1936 of the tax payable on the claimant's taxable income for the past period income year.
History
S 14(2) inserted by No 48 of 2009, s 3 and Sch 1 item 10, applicable in relation to claims for payment of family tax benefit for a past period falling in the 2009-10 income year or a later income year. For saving provision, see note under definition of "agency" in s 3(1).
14(3)
This subsection applies if:
(a)
at the time the claim is made, a person is the claimant's partner and that person was the claimant's partner at any time during the past period; and
(b)
that person is required to lodge an income tax return for the past period income year; and
(c)
at the time the claim is made, an assessment has not been made under the
Income Tax Assessment Act 1936 of the tax payable on that person's taxable income for the past period income year.
History
S 14(3) inserted by No 48 of 2009, s 3 and Sch 1 item 10, applicable in relation to claims for payment of family tax benefit for a past period falling in the 2009-10 income year or a later income year. For saving provision, see note under definition of "agency" in s 3(1).
History
S 14 amended by No 45 of 2000, s 3 Sch 2 item 11, by substituting all the words before para (b), effective 1 July 2000. For transitional provisions see note under s 7A. The words before para (b) formerly read:
If:
(a)
the claim is one for payment of family tax benefit for a past period; and
SECTION 14A
Restriction on determining claim where income tax return not lodged
14A(1)
If, in relation to a claim for payment of family tax benefit made by an individual:
(a)
the claim is for payment of that benefit for a past period; and
(b)
the past period falls in an income year (the
past period income year
) that is one of the 2 income years before the one in which the claim is made; and
(c)
one or more of subsections (2) to (3A) apply;
then the claim is taken never to have been made.
History
S 14A(1) amended by No 46 of 2016, s 3 and Sch 2 item 1, by substituting para (c), applicable in relation to a claim made on or after 6 May 2016, where the past period falls in the income year in which this Schedule commences or in a later income year. Para (c) formerly read:
(c)
either or both of subsections (2) and (3) apply;
14A(2)
This subsection applies if:
(a)
the claimant is required to lodge an income tax return for the past period income year; and
(b)
the claimant has not lodged the return before the end of:
(i)
the first income year after the past period income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the return before the end of that first income year.
14A(3)
This subsection applies if:
(a)
at the time the claim is made, a person is the claimant's partner, and that person was the claimant's partner at any time during the past period; and
(b)
that person is required to lodge an income tax return for the past period income year; and
(c)
that person has not lodged the return before the end of:
(i)
the first income year after the past period income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the income tax return before the end of that first income year.
14A(3A)
This subsection applies if:
(a)
the claimant, or any other individual whose adjusted taxable income is relevant in working out the claimant's entitlement to, or rate of, family tax benefit for the past period, is not required to lodge an income tax return for the past period income year; and
(b)
the claimant does not notify the Secretary of the amount of the claimant's adjusted taxable income for the past period income year before the end of:
(i)
the first income year after the past period income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making that notification before the end of that first income year.
History
S 14A(3A) inserted by No 46 of 2016, s 3 and Sch 2 item 2, applicable in relation to a claim made on or after 6 May 2016, where the past period falls in the income year in which this Schedule commences or in a later income year.
14A(4)
The further period referred to in subparagraph (2)(b)(ii), (3)(c)(ii) or (3A)(b)(ii) must end no later than the end of the second income year after the past period income year.
History
S 14A(4) amended by No 46 of 2016, s 3 and Sch 2 item 3, by substituting ", (3)(c)(ii) or (3A)(b)(ii)" for "or (3)(c)(ii)", applicable in relation to a claim made on or after 6 May 2016, where the past period falls in the income year in which this Schedule commences or in a later income year.
History
S 14A inserted by No 70 of 2013, s 3 and Sch 2B item 17, applicable in relation to a past period falling in the 2012-13 income year or a later income year.
SECTION 15
Restriction on determining claim where tax file number not provided etc.
Statement that TFN claim person or TFN substitution person does not know what his or her tax file number is etc.
15(1)
If:
(a)
a TFN claim person makes a statement of the kind set out in subsection
8(4); or
(b)
a TFN substitution person makes a statement of the kind set out in subsection 8A(4);
the Secretary can only determine the claim concerned if:
(c)
within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(d)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.
Statement that an application for a tax file number is pending
15(2)
If:
(a)
a TFN claim person makes a statement of the kind set out in subsection
8(5); or
(b)
a TFN substitution person makes a statement of the kind set out in subsection
8A(5);
the Secretary can only determine the claim concerned if:
(c)
within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(d)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:
(i)
the person has not applied for a tax file number; or
(ii)
an application by the person for a tax file number has been refused; or
(iii)
the person has withdrawn an application for a tax file number.
15(3)
If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.
History
S 15 substituted by No 45 of 2000, s 3 Sch 2 item 12, effective 1 July 2000. For transitional provisions see note under s 7A. S 15 formerly read:
15 Restriction on determining claim where tax file number not provided etc
Statement that TFN claim person does not know what his or her tax file number is etc
15(1)
If a TFN claim person makes a statement of the kind set out in subsection 8(4), the Secretary can only determine the claim concerned if:
(a)
within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(b)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.
Statement that an application for a tax file number is pending
15(2)
If a TFN claim person makes a statement of the kind set out in subsection 8(5), the Secretary can only determine the claim concerned if:
(a)
within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(b)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:
(i)
the person has not applied for a tax file number; or
(ii)
an application by the person for a tax file number has been refused; or
(iii)
the person has withdrawn an application for a tax file number.
15(3)
If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.
SECTION 15A
Restriction on determining claim where bank account details not provided
15A(1)
If a person makes a statement of the kind set out in paragraph
7A(2)(b), the Secretary can only determine the claim concerned if, within 28 days after the claim is made, the person nominates, and provides details of, a bank account of a kind referred to in paragraph
7A(2)(a) into which instalments of family tax benefit are to be paid.
15A(2)
If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.
History
S 15A inserted by No 45 of 2000, s 3 Sch 2 item 12, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 15B
15B
Deferral of determination of early claims
If:
(a)
an individual makes a claim for payment of family tax benefit by instalment in respect of a child before the child is an FTB child of the claimant; and
(b)
the Secretary is satisfied that, at the time the determination would otherwise be made, the claimant would be likely to be eligible for family tax benefit in respect of the child if the child were to become an FTB child of the claimant;
the Secretary must not determine the claim for family tax benefit until the earlier of the following:
(c)
the time when the child becomes an FTB child of the claimant, or is stillborn;
(d)
28 days after the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant.
History
S 15B inserted by No 105 of 2010, s 3 and Sch 1 item 22, effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
SECTION 16
Determination of instalment entitlement claim
16(1)
This section applies if the claim is one for payment of family tax benefit by instalment.
16(2)
If the Secretary is satisfied that the claimant is, at the time the Secretary makes the determination on the claim, eligible for family tax benefit in accordance with Subdivision
A or
C of Division
1 of Part
3 of the Family Assistance Act, the Secretary must determine that the claimant is entitled to be paid family tax benefit for each day on which the determination is in force at the daily rate at which the Secretary considers the claimant to be eligible.
History
S 16(2) substituted for s 16(2) and 16(3) by No 45 of 2000, s 3 and Sch 2 item 13, effective 1 July 2000. For transitional provisions see note under s 7A. S 16(2) formerly read:
Instalments where normal eligibility
16(2)
If:
(a)
the Secretary is satisfied that the claimant is, at the time the Secretary makes the determination on the claim, eligible for family tax benefit in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act; and
(b)
subsection (3) does not apply;
the Secretary must determine that the claimant is entitled to be paid family tax benefit for each day on which the determination is in force, at the daily rate at which the Secretary considers the claimant to be eligible.
16(3)
(Repealed by No 45 of 2000)
History
S 16(2) substituted for s 16(2) and 16(3) by No 45 of 2000, s 3 and Sch 2item 13, effective 1 July 2000. For transitional provisions see note under s 7A. S 16(3) formerly read:
Instalments where pattern of care eligibility
16(3)
If the Secretary is satisfied that, at the time of making the determination on the claim, a pattern of days on which an FTB child of the claimant is in the claimant's care exists and is likely to continue to exist in the future, such that the claimant will be eligible for family tax benefit in respect of the child in accordance with Subdivision A of Division 1 of Part 3 of the Family Assistance Act only on particular days, the Secretary must determine that the claimant is entitled to be paid family tax benefit for those particular days while the determination is in force, at the daily rate at which the Secretary considers the claimant will be eligible.
Additional entitlement in subsection (2) cases
16(4)
If:
(a)
the Secretary is satisfied as mentioned in subsection (2); and
(b)
the Secretary is also satisfied that the claimant was eligible for family tax benefit in accordance with Subdivision
A or
C of Division
1 of Part
3 of the Family Assistance Act during the whole or part of the period since the claim was made;
the Secretary must determine that the claimant is entitled to be paid that amount of family tax benefit.
History
S 16(4) amended by No 45 of 2000, s 3 Sch 2 item 14, by omitting ``or (3)'' afet ``(2)'' in para (a), effective 1 July 2000. For transitional provisions see note under s 7A.
Instalments where bereavement eligibility - remaining FTB or regular care children
16(5)
If the Secretary is satisfied that, at the time of making the determination on the claim:
(a)
the claimant is eligible for family tax benefit in accordance with section
31 of the Family Assistance Act; and
(b)
assuming subsection
(4) of that section were disregarded, the claimant would be eligible for family tax benefit under Subdivision
A of Division
1 of Part
3 of that Act;
the Secretary must determine that:
(c)
the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant to be eligible:
(i)
for each day on which the determination is in force that occurs during the period to which subsection 31(2) of that Act applies; and
(ii)
for each day, before the determination came into force, that occurred during that period; and
(d)
the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant would be eligible, on the assumption in paragraph (b) of this subsection, for each day while the determination is in force that occurs after the last day on which the claimant is entitled to be paid family tax benefit in accordance with paragraph (c) of this subsection.
History
S 16(5) heading altered by inserting"or regular care" after "FTB" by No 146 of 2006, s 3 and Sch 8 item 92, effective 1 July 2008
Instalments where bereavement eligibility-no remaining FTB or regular care children
16(6)
If the Secretary is satisfied that, at the time of making the determination on the claim:
(a)
the claimant is eligible for family tax benefit in accordance with section
31 of the Family Assistance Act; and
(b)
assuming subsection
(4) of that section were disregarded, the claimant would not be eligible for family tax benefit under Subdivision
A of Division
1 of Part
3 of that Act;
the Secretary must determine that the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant to be eligible:
(c)
for each day on which the determination is in force that occurs during the period to which subsection
31(2) of that Act applies; and
(d)
for each day, before the determination came into force, that occurred during that period.
History
S 16(6) heading altered by inserting "or regular care" after "FTB" by No 146 of 2006, s 3 and Sch 8 item 92, effective 1 July 2008
SECTION 17
17
Determination of past period entitlement claim
If:
(a)
the claim is one for payment of family tax benefit for a past period; and
(b)
the Secretary is satisfied that the claimant was eligible for family tax benefit:
(i)
for the whole of the period in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act; or
(ii)
for part of the period in accordance with Subdivision A of that Division and for the remainder of the period in accordance with section 31 of that Act;
the Secretary must determine that the claimant is entitled to be paid family tax benefit for the past period.
SECTION 18
18
Determination of bereavement entitlement claim
If:
(a)
the claim is one for payment of family tax benefit by single payment/in substitution because of the death of another individual; and
(b)
the Secretary is satisfied that the claimant is eligible for family tax benefit under section
32 or
33 of the Family Assistance Act;
the Secretary must determine that the claimant is entitled to be paid the family tax benefit.
SECTION 19
19
Determination that no entitlement
If the Secretary is not satisfied as mentioned in section
16,
17 or
18, the Secretary must determine:
(a)
if the determination is on a claim for payment of family tax benefit by instalment-that the claimant is not entitled to be paid family tax benefit for each day on which the determination is in force; or
(b)
in any other case-that the claimant is not entitled to be paid family tax benefit for the past period or because of the death of the other individual, as the case requires.
SECTION 20
DETERMINATION OF RATE MAY BE BASED ON ESTIMATE, INDEXED ESTIMATE OR INDEXED ACTUAL INCOME
20(1)
If:
(a)
an individual's eligibility for, or rate of, family tax benefit is required to be determined for the purposes of this Division or Division 3; and
(b)
information about the amount of adjusted taxable income needed for the determination of the eligibility or rate is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and
(c)
the individual or, if the individual has died, another individual making a claim under this Division or Division 3 gives the Secretary an estimate of the amount needed; and
(d)
the Secretary considers the estimate to be reasonable; and
(e)
since the estimate was given, the Secretary has not given the individual a notice under subsection
20A(2) or
20B(2) with a start day that has arrived or passed;
the Secretary may determine the individual's eligibility for, or rate of, family tax benefit on the basis of the estimate.
History
S 20(1) amended by No 36 of 2006, s 3 and Sch 2 items 3 and 4, by inserting para (e), applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
S 20(1) and (2) substituted by No 30 of 2003, s 3 and Sch 2 item 16, effective 15 April 2003. S 20(1) formerly read:
20(1)
If:
(a)
an individual's rate of family tax benefit is required to be calculated for the purpose of making a determination under this Division; and
(b)
information about the amount of adjusted taxable income needed for the calculation of the rate is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and
(c)
the individual or, if the individual has died, another individual making a claim for family tax benefit by single payment/in substitution because of the death of that individual, gives the Secretary an estimate of the amount needed; and
(d)
the Secretary considers the estimate to be reasonable;
the Secretary may determine the individual's rate of family tax benefit on the basis of the estimate.
S 20(1) amended by No 45 of 2000, s 3 Sch 2 items 15 and 16, by substituting "the amount of adjusted taxable income" for "an amount" in para (b) and by inserting "or, if the individual has died, another individual making a claim for family tax benefit by single payment/in substitution because of the death of that individual," after "individual" in para (c), effective 1 July 2000. For transitional provisions see note under s 7A.
20(2)
If:
(a)
an estimate is given to the Secretary for the purposes of subsection (1); and
(b)
the Secretary does not consider the estimate reasonable;
the following paragraphs apply:
(c)
the eligibility or rate cannot be determined; and
(d)
if the determination of the eligibility or rate is required for the purposes ofthis Division, section 19 applies.
History
S 20(1) and (2) substituted by No 30 of 2003, s 3 and Sch 2 item 16, effective 15 April 2003. S 20(2) formerly read:
20(2)
If the individual does not give the Secretary an estimate of the amount needed that the Secretary considers reasonable, the rate cannot be calculated and section 19 applies.
20(2A)
If:
(a)
an individual's eligibility for, or rate of, family tax benefit is required to be determined for the purposes of this Division or Division
3; and
(b)
information about the amount of adjusted taxable income needed for the determination of the eligibility or rate is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and
(c)
the Secretary has given the individual a notice under subsection
20A(2) or
20B(2) with a start day that has arrived or passed; and
(d)
since the notice was given, the individual has not given the Secretary an estimate of the individual's adjusted taxable income that the Secretary considers to be reasonable;
the Secretary may determine the individual's eligibility for, or rate of, family tax benefit on the basis of the indexed estimate or indexed actual income stated in the notice (or, if the Secretary has given the individual more than one such notice - the notice with the most recent start day).
Note:
Section 20C affects the meaning of this provision for members of couples.
History
S 20(2A) inserted by No 36 of 2006, s 3 and Sch 2 item 5, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
20(3)
If:
(a)
an individual's rate of family tax benefit is required to be calculated for the purpose of making a determination under this Division; and
(b)
information about the amount of maintenance income needed for the calculation of the rate is not available;
the Secretary may determine the individual's rate of family tax benefit on the basis of an estimate by the Secretary of the amount needed.
History
S 20(3) inserted by No 45 of 2000, s 3 Sch 2 item 17, effective 1 July 2000. For transitional provisions see note under s 7A.
Note:
If family tax benefit is worked out on the basis referred to in subsection (1), (2A) or (3), it is referred to in this Act as being worked out on an
estimated income basis
(see the definition of this term in subsection 3(1)).
History
S 20 amended by No 49 of 2012, s 3 and Sch 3 item 4, by inserting the note at the end, effective 1 July 2012.
SECTION 20A
INDEXED ESTIMATES
20A(1)
The Secretary may calculate an indexed estimate for an individual under subsection (5), with a start day chosen by the Secretary, if:
(a)
the individual is a claimant, or the partner of a claimant, for family tax benefit; and
(b)
a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and
(c)
the determination includes a determination of the claimant's rate of family tax benefit worked out on the basis of a reasonable estimate of the claimant's adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant.
Note:
Section 20C affects the meaning of paragraph (c) for members of couples.
20A(2)
If the Secretary calculates an indexed estimate for the individual, the Secretary may give the claimant a notice:
(a)
stating the indexed estimate for the individual; and
(b)
specifying the start day used in the Secretary's calculation (which must be at least 14 days after the day on which the notice is given).
20A(3)
The Secretary must not give a notice under subsection (2) stating an indexed estimate for the individual with a start day in an income year if the Secretary has already given a notice under subsection (2) stating an indexed estimate for that individual with a start day in the same income year.
20A(4)
A notice given to a claimant under subsection (2) stating an indexed estimate for an individual has no effect if, before the start day specified in the notice for the indexed estimate, the Secretary gives the claimant a notice under subsection
20B(2) stating an indexed actual income for the same individual. Any such notice under subsection
20B(2) must specify a start day that is no earlier than the start day specified in the superseded notice.
20A(5)
Calculate an indexed estimate (which may be nil) for the individual by multiplying the individual's current ATI number (see subsection (6)) by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):
AWE for the reference period in the most recent November
|
AWE for the reference period in the highest previous November |
where:
AWE
means the amount published by the Australian Statistician in a document titled "Average Weekly Earnings" under the headings "Average Weekly Earnings, Australia - Original - Persons - All employees total earnings" (or, if any of those change, in a replacement document or under replacement headings).
highest previous November
means the November in which, of all the Novembers from November 2004 to theNovember before the most recent November (inclusive), AWE was the highest.
most recent November
means the November of the income year before the income year in which the start day occurs.
reference period
, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.
20A(6)
For the purposes of subsection (5), the individual's
current ATI number
is:
(a)
if, at the time of calculation, the Secretary has given the claimant a notice under subsection
20B(2) stating an indexed actual income for the individual with a start day that has not arrived - the indexed actual income stated in the notice; or
(b)
if paragraph (a) does not apply and the individual is the claimant - the amount the Secretary is permitted to use for the individual under section
20 (disregarding the effect for couples of section
20C of this Act and clause 3 of Schedule
3 to the Family Assistance Act); or
(c)
if paragraph (a) does not apply and the individual is the claimant's partner - the amount the Secretary would be permitted to use for the individual under section
20 if the individual were the claimant (disregarding the effect for couples of section
20C of this Act and clause 3 of Schedule
3 to the Family Assistance Act).
20A(7)
A notice under subsection (2) is not a legislative instrument.
History
S 20A inserted by No 36 of 2006, s 3 and Sch 2 item 6, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 20B
INDEXED ACTUAL INCOMES
20B(1)
The Secretary may calculate an indexed actual income for an individual under subsection (4), with a start day chosen by the Secretary, if:
(a)
the individual is a claimant for, or the partner of a claimant for, family tax benefit; and
(b)
a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and
(c)
the determination includes a determination of the claimant's rate of family tax benefit worked out on the basis of an indexed estimate for the claimant or an indexed actual income for the claimant; and
(d)
since the claimant was last given a notice under subsection
20A(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for an individual, the claimant has not given the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable; and
(e)
the adjusted taxable income for an income year (
actual income
) of the individual (disregarding the effect for couples of clause 3 of Schedule
3 to the Family Assistance Act) becomes known to the Secretary and it is the most recent income year for which the individual's actual income is known to the Secretary.
Note:
Section 20C affects the meaning of paragraph (1)(c) for members of couples.
20B(2)
If:
(a)
the Secretary calculates an indexed actual income for the individual; and
(b)
the indexed actual income is greater than the individual's current ATI number (see subsection (5));
the Secretary may give the claimant a notice:
(c)
stating the indexed actual income for the individual; and
(d)
specifying the start day used in the Secretary's calculation (which must be at least 14 days after the day on which the notice is given).
20B(3)
A notice given to a claimant under subsection (2) stating an indexed actual income for an individual has no effect if, before the start day specified in the notice, the Secretary gives the claimant another notice under that subsection or a notice under subsection
20A(2) stating an indexed estimate or indexed actual income for the same individual. Any other such notice must specify a start day that is no earlier than the start day specified in the superseded notice.
20B(4)
Calculate an indexed actual income (which may be nil) for the individual by multiplying the actual income of the individual which became known to the Secretary by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4);
AWE for the reference period in the most recent November
|
AWE for the reference period in the highest previous November |
where:
AWE
means the amount published by the Australian Statistician in a document titled "Average Weekly Earnings" under the headings "Average Weekly Earnings, Australia - Original - Persons - All employees total earnings" (or, if any of those change, in a replacement document or under replacement headings).
highest previous November
means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.
most recent November
means the November of the income year before the income year in which the start day occurs.
reference period
, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.
20B(5)
For the purposes of paragraph (2)(b), the individual's
current ATI number
is:
(a)
if, at the time of calculation, the Secretary has given the claimant a notice under subsection
20A(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for the individual with a start day that has not arrived - the indexed estimate or indexed actual income stated in the notice; or
(b)
if paragraph (a) does not apply and the individual is the claimant - the amount the Secretary is permitted to use for the individual under section
20 (disregarding the effect for couples of section
20C of this Act and clause 3 of Schedule
3 to the Family Assistance Act); or
(c)
if paragraph (a) does not apply and the individual is the claimant's partner - the amount the Secretary would be permitted to use for the individual under section
20 if the individual were the claimant (disregarding the effect for couples of section
20C of this Act and clause 3 of Schedule
3 to the Family Assistance Act).
20B(6)
A notice under subsection (2) is not a legislative instrument.
History
S 20B inserted by No 36 of 2006, s 3 and Sch 2 item 6, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 20C
INDEXED ESTIMATES AND INDEXED ACTUAL INCOMES OF MEMBERS OF COUPLES
Section applies to couples
20C(1)
This section applies in relation to any individual who is a member of a couple
Family tax benefit Part A
20C(2)
For the purposes of the Family Assistance Act other than Part
4 of Schedule
1, any reference in this Act to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (3).
20C(3)
The reference is taken to be a reference to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with:
(a)
the most recent indexed estimate or indexed actual income for the individual's partner (see subsection (6)); or
(b)
if there is no such indexed estimate or indexed actual income - a reasonable estimate of the adjusted taxable income of the individual's partner (disregarding the effect of clause
3 of Schedule
3 to the Family Assistance Act) that has been given to the Secretary by the individual.
History
S 20C(3) substituted by No 82 of 2006, s 3 and Sch 10 item 1, effective 1 July 2006. S 20C(3) formerly read:
20C(3)
The reference is taken to be a reference to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of the indexed estimate, or the indexed actual income for that individual or stated in that notice, combined with the most recent indexed estimate or indexed actual income for the individual's partner (see subsection (6)).
Family tax benefit Part B
20C(4)
For the purposes of Part
4 of Schedule
1 to the Family Assistance Act, any reference in this Act to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (5).
20C(5)
The reference is taken to be a reference to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of the lower of these:
(a)
the indexed estimate or indexed actual income for that individual or stated in that notice;
(b)
the most recent indexed estimate or indexed actual income for the individual's partner (see subsection (6)) or, if there is no such indexed estimate or indexed actual income, a reasonable estimate of the adjusted taxable income of the individual's partner (disregarding the effect of clause 3 of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.
If the amounts in paragraphs (a) and (b) are equal, the reference is taken to be a reference to:
(c)
if the individual is the claimant for family tax benefit - the amount in paragraph (a); or
(d)
if the individual is the partner of the claimant for family tax benefit - the amount in paragraph (b).
History
S 20C(5) amended by No 82 of 2006, s 3 and Sch 10 item 2, by inserting all the words after "(see subsection (6))" in para (b), effective 1 July 2006.
Most recent indexed estimate or indexed actual income for individual's partner
20C(6)
In subsections (3) and (5), the
most recent indexed estimate or indexed actual income for the individual's partner
is the indexed estimate or indexed actual income for the individual's partner stated in a notice given to:
(a)
if the individual is the claimant for family tax benefit - the individual's partner;
(b)
if the individual is the partner of the claimant for family tax benefit - the individual's partner;
under subsection 20A(2) or 20B(2) with a start day that has arrived or passed (or, if the Secretary has given more than one such notice - the notice with the most recent start day.
History
S 20C inserted by No 36 of 2006, s 3 and Sch 2 item 6, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 21
When determination is in force
21(1)
Subject to this section, a determination under this Division comes into force when it is made and remains in force at all times afterwards.
21(1A)
A determination under paragraph 19(a) may be expressed to come into force on a day before it is made (but not earlier than the day the claim concerned is made).
History
S 21(1A) inserted by No 49 of 2012, s 3 and Sch 6 item 26, applicable in relation to determinations made on or after 26 May 2012.
Effect of later determination on certain instalment determinations
21(2)
If, on a particular day, a determination is in force:
(a)
under section
16, where under the determination the claimant is not entitled to be paid family tax benefit on the particular day or any later day; or
(b)
under paragraph
19(a);
the determination ceases to be in force on the particular day if either:
(c)
another determination is made on the particular day on a claim by the claimant for payment of family tax benefit by instalment; or
(d)
another determination is made after the particular day on a claim by the claimant for payment of family tax benefit for a past period, where the particular day occurs within the past period.
Request for cessation of instalment determination
21(3)
A determination in force under section
16 on a particular day ceases to be in force if:
(a)
under the determination, the claimant is entitled to be paid family tax benefit on the particular day or any later day; and
(b)
on the particular day, the claimant is not receiving a social security pension, social security benefit, service pension, income support supplement or veteran payment; and
(c)
on the particular day, the claimant advises the Secretary, in the form and manner required by the Secretary, that the claimant wishes the determination:
(i)
to cease to be in force from the particular day or from a specified later day; or
(ii)
to have ceased to be in force at the end of the most recent instalment period before the particular day.
The determination ceases to be in force in accordance with the advice.
History
S 21(3) amended by No 17 of 2018, s 3 and Sch 2 item 36, by substituting ", income support supplement or veteran payment" for "or income support supplement" in para (b), effective 1 May 2018.
S 21(3) amended by No 63 of 2008, s 3 and Sch 6 item 13, by substituting ", service pension or income support supplement" for "or service pension" in para (b), effective 30 June 2008.
SECTION 22
Notice of determination
22(1)
The Secretary must give notice of a determination under this Subdivision (except subsection
23(3B)) to the claimant, stating:
(a)
whether the claimant is entitled to be paid family tax benefit under the determination; and
(b)
if the claimant is so entitled:
(i)
if the claimant is entitled to be paid family tax benefit by instalment-the daily rate of the benefit, the days on which the entitlement arises and how it is to be paid; or
(ii)
in any other case-the amount of the benefit and how it is to be paid; and
(c)
that the claimant may apply for review of the determination in the manner set out in Part
5.
History
S 22(1) amended by No 45 of 2010, s 3 and Sch 1 item 1, by inserting "(except subsection 23(3B))" after "under this Subdivision", effective 14 April 2010.
22(2)
The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.
History
S 22(2) amended by No 45 of 2000, s 3 Sch 2 item 18, by substituting "by reason only that" for "to any extent if", effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 23
Payment of family tax benefit by instalment
23(1)
Subject to this section, if the claimant is entitled to be paid family tax benefit by instalment, the Secretary must, after each instalment period ending after the determination is made, pay the instalment amount to the claimant, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
History
S 23(1) amended by No 45 of 2000, s 3 Sch 2 item 19, by substituting "as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant" for "and in such manner as the Secretary considers appropriate", effective 1 July 2000. For transitional provisions see note under s 7A.
Instalment amount and instalment period
23(2)
In subsection (1):
instalment amount
means the amount accruing for the days in the instalment period for which an entitlement to be paid family tax benefit arose under the determination.
instalment period
means, subject to subsection (3):
(a)
the period of 14 days beginning on the day the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included, and each successive period of 14 days; or
(b)
if the claimant:
(i)
is included in a class of persons specified under subsection (3A); and
(ii)
is the subject of a determination in force under subsection (3B);
the period of 7 days beginning on the day the Secretary considers appropriate, and each successive period of 7 days.
History
S 23(2) amended by No 45 of 2010, s 3 and Sch 1 item 2, by substituting paras (a) and (b), effective 14 April 2010. Paras (a) and (b) formerly read:
(a)
the period of 14 days beginning on such day as the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included; and
(b)
each successive period of 14 days.
Changing the day on which later instalment periods begin
23(3)
The Secretary may change the day on which successive instalment periods are to begin in relation to a claimant or class of claimants. If the Secretary does so, the last instalment period before the first day on which the new instalment periods are to begin is shortened so that it ends immediately before that day.
Persons who may have 7-day instalment periods
23(3A)
The Minister may by legislative instrument specify a class of persons any of whom the Secretary may determine to have 7-day instalment periods.
History
S 23(3A) inserted by No 45 of 2010, s 3 and Sch 1 item 3, effective 14 April 2010.
23(3B)
The Secretary may determine that a claimant who is a member of a class of persons specified under subsection (3A) has instalment periods of 7 days.
History
S 23(3B) inserted by No 45 of 2010, s 3 and Sch 1 item 3, effective 14 April 2010.
23(3C)
The Secretary must revoke a determination made under subsection (3B) if he or she is satisfied that the claimant is no longer a member of a class of persons specified under subsection (3A).
History
S 23(3C) inserted by No 45 of 2010, s 3 and Sch 1 item 3, effective 14 April 2010.
23(3D)
Subsection (3C) does not limit the operation of subsection
33(3) of the
Acts Interpretation Act 1901 in relation to subsection (3B) of this section.
History
S 23(3D) inserted by No 45 of 2010, s 3 and Sch 1 item 3, effective 14 April 2010.
23(4)
(Repealed by No 95 of 2002)
History
S 23(4) repealed by No 95 of 2002, s 3 Sch 2 item 1, effective 1 July 2003. S 23(4) formerly read:
Making of payments to third parties
23(4)
The Secretary may pay the whole or a part of an amount, that would otherwise be required by subsection (1) to be paid to the claimant, to someone other than the claimant, on behalf of the claimant. The payment may be made at such time and in such manner as the Secretary considers appropriate.
Act No 95 of 2002, s 3 Sch 2 item 14, contains the following continuation provisions:
(1)
In this item:
Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
benefit recipient
means the person to whom a relevant benefit is payable.
payment recipient
means a person to whom, immediately before the commencement of this Schedule, the whole or part of a relevant benefit was being paid under a relevant provision.
relevant benefit
has the same meaning as in Part 8B of the Administration Act, as amended by this Schedule.
relevant provision
means subsection 23(4), 24(2), 47(2), 56(2) or 56A(2) of the Administration Act, as in force immediately before the commencement of this Schedule.
(2)
If, immediately before the commencement of this Schedule, the whole or part of a relevant benefit was being paid, under a relevant provision, to a person other than the benefit recipient, the following paragraphs have effect:
(a)
the payment recipient is taken, for the purposes of the Administration Act, as amended by this Schedule, to have consented in writing to appointment under section 219TB of that Act as the payment nominee of the benefit recipient;
(b)
the payment recipient is taken, for the purposes of the Administration Act, as amended by this Schedule, to have been appointed, on the day of commencement of this Schedule, under section 219TB of that Act as the payment nominee of the benefit recipient;
(c)
if, immediately before the commencement of this Schedule, the whole of the relevant benefit was being paid to the payment recipient, the Secretary is taken, for the purposes of the Administration Act, as amended by this Schedule, to have given, on the day of commencement of this Schedule, a direction under section 219TB of that Act that the whole of the relevant benefit be paid to the payment nominee of the benefit recipient;
(d)
if, immediately before the commencement of this Schedule, part of the relevant benefit was being paid to the payment recipient, the Secretary is taken, for the purposes of the Administration Act, as amended by this Schedule, to have given, on the day of commencement of this Schedule, a direction under section 219TB of that Act that the same part of the relevant benefit be paid to the payment nominee of the benefit recipient.
S 23(4) amended by No 45 of 2000, s 3 Sch 2 item 20, by adding "The payment may be made at such time and in such manner as the Secretary considers appropriate." at the end, effective 1 July 2000. For transitional provisions see note under s 7A.
Secretary may make direction as to the manner of making payments
23(5)
The Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.
History
S 23(5) substituted by No 45 of 2000, s 3 Sch 2 item 21, effective 1 July 2000. For transitional provisions see note under s 7A. S 23(5) formerly read:
Regulations may provide for timing and manner of making payments
23(5)
The regulations may make provision for the time at which, and the manner in which, an amount is to be paid for the purposes of this section. If such regulations are made, the Secretary must pay the amount in accordance with the regulations.
Early payment of FTB instalment in particular cases
23(5A)
If the Secretary is satisfied that an instalment amount that would, apart from this subsection, be paid under this section on a particular day cannot reasonably be paid on that day, the Secretary may direct that the instalment amount be paid on an earlier day.
History
S 23(5A) inserted by No 45 of 2000, s 3 Sch 2 item 22, effective 1 July 2000. For transitional provisions see note under s 7A.
Section subject to other provisions
23(6)
This section is subject to Subdivision
CA of this Division, Part
4, Division
3 of Part
8B and sections
225 and
226.
History
S 23(6) amended by No 49 of 2009, s 3 and Sch 2 item 1, by inserting "Subdivision CA of this Division," after "subject to", effective 1 July 2009.
S 23(6) substituted by No 95 of 2002, s 3 Sch 2 item 2, effective 1 July 2003. S 23(6) formerly read:
Section subject to other provisions
23(6)
This section is subject to Part 4 (Overpayments and debt recovery), sections 225 and 226 (which deal with tax debts) and section 227 (which deals with child support debts).
S 23(6) amended by No 75 of 2001, s 3 and Sch 1A item 22, by substituting ", sections 225 and 226 (which deal with tax debts) and section 227 (which deals with child support debts)" for "and sections 225 and 226 (which deal with tax debts)", effective 1 July 2001.
S 23(6) amended by No 45 of 2000, s 3 Sch 2 item 23, by substituting "and 226 (which deal with tax debts)" for "to 228 (which deal with other debts etc)", effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 24
Payments of family tax benefit for a past period or by single payment/in substitution because of the death of another individual
24(1)
If the claimant is entitled to be paid family tax benefit under a determination on aclaim for payment of family tax benefit:
(a)
for a past period; or
(b)
by single payment/in substitution because of the death of another individual;
the Secretary must pay the amount to the claimant, at such time and in such manner as the Secretary considers appropriate.
24(2)
(Repealed by No 95 of 2002)
History
S 24(2) repealed by No 95 of 2002, s 3 Sch 2 item 3, effective 1 July 2003. For continuation provisions see history note under S 23(4).
S 24(2) formerly read:
Making of payments to third parties
24(2)
The Secretary may instead pay the whole or a part of the amount to someone other than the claimant, on behalf of the claimant. The payment may be made at such time and in such manner as the Secretary considers appropriate.
History
S 24(2) amended by No 45 of 2000, s 3 Sch 2 item 24, by adding "The payment may be made at such time and in such manner as the Secretary considers appropriate." at the end, effective 1 July 2000. For transitional provisions see note under s 7A.
24(3)
(Repealed by No 45 of 2000)
History
S 24(3) repealed by No 45 of 2000, s 3 Sch 2 item 25, effective 1 July 2000. For transitional provisions see note under s 7A. S 25(3) formerly read:
Regulations may provide for timing and manner of making payments
24(3)
The regulations may make provision for the time at which, and the manner in which, an amount is to be paid for the purposes of this section. If such regulations are made, the Secretary must pay the amount in accordance with the regulations.
Section subject to other provisions
24(4)
This section is subject to Subdivision
CA of this Division, Part
4, Division
3 of Part
8B and sections
225 and
226.
History
S 24(4) amended by No 49 of 2009, s 3 and Sch 2 item 2, by inserting "Subdivision CA of this Division," after "subject to", effective 1 July 2009.
S 24(4) substituted by No 95 of 2002, s 3 Sch 2 item 4, effective 1 July 2003. S 24(4) formerly read:
Section subject to other provisions
24(4)
This section is subject to Part 4 (Overpayments and debt recovery), sections 225 and 226 (which deal with tax debts) and section 227 (which deals with child support debts).
History
S 24(4) amended by No 75 of 2001, s 3 and Sch 1A item 22, by substituting ", sections 225 and 226 (which deal with tax debts) and section 227 (which deals with child support debts)" for "and sections 225 and 226 (which deal with tax debts)", effective 1 July 2002.
S 24(4) amended by No 45 of 2000, s 3 Sch 2 item 26, by substituting "and 226 (which deal with tax debts)" for "to 228 (which deal with other debts etc)", effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 24A
Other payments of family tax benefit
24A(1)
If an individual is entitled to be paid an amount of family tax benefit under section
58AA of the Family Assistance Act, the Secretary must pay the amount to the individual in a single lump sum, at such time and in such manner as the Secretary considers appropriate.
24A(2)
This section is subject to Subdivision
CA of this Division, Part
4, Division
3 of Part 8B and sections
225 and
226.
History
S 24A inserted by No 70 of 2013, s 3 and Sch 2A item 14, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
SECTION 25
Obligation to notify change of circumstances
25(1)
If, after a claimant becomes entitled to be paid family tax benefit by instalment:
(a)
anything happens that causes the claimant to cease to be eligible for family tax benefit on the days for which the claimant will become entitled to be paid the benefit under the determination concerned, or to become eligible for a daily rate of family tax benefit that is less than that specified in the determination; or
(b)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
25(2)
Strict liability applies to the element of an offence against subsection (1) that a notice is a notice given under section
25A.
History
S 25(2) inserted by No 137 of 2001, s 3 and Sch 1 item 4, effective 1 October 2001.
25(3)
If, after the Secretary determines under subsection
23(3B) that a claimant has instalment periods of 7 days:
(a)
anything happens that causes the claimant to cease to be a member of a class of persons specified under subsection
23(3A); or
(b)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
History
S 25(3) inserted by No 45 of 2010, s 3 and Sch 1 item 4, effective 14 April 2010.
25(4)
If a thing that is described in both subsections (1) and (3) happens or is likely to happen, subsection (1) applies in relation to the thing but subsection (3) does not.
History
S 25(4) inserted by No 45 of 2010, s 3 and Sch 1 item 4, effective 14 April 2010.
History
S 25 amended by No 45 of 2000, s 3 Sch 2 item 27, by substituting "a written notice given to the claimant under section 25A" for "the regulations", effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 25A
Secretary's power to approve a manner of notification
25A(1)
The Secretary must approve a manner of notification that a claimant is to use when notifying the Secretary of a thing under section
25.
25A(2)
The Secretary must, by written notice, notify the claimant of the approved manner of notification.
History
S 25A inserted by No 45 of 2000, s 3 Sch 2 item 28, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 26
Secretary's power to request tax file numbers
26(1)
If:
(a)
a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; or
(b)
a determination is in force under which the claimant is entitled to be paid family tax benefit for a past period;
the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, a written statement, in relation to a specified TFN determination person, of whichever of the kinds set out in subsection (2), (3) or (4) the claimant chooses.
History
S 26(1) amended by No 30 of 2003, s 3 and Sch 2 item 17, by substituting ``written statement'' for ``statement'', effective 15 April 2003.
Statement of tax file number
26(2)
The first kind of statement that can be made is a statement of the TFN determination person's tax file number. Regardless of who the TFN determination person is, this kind of statement can be made by the claimant only.
Statement that TFN person does not know what his or her tax file number is etc
26(3)
The second kind of statement that can be made is a statement by the TFN determination person 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 ispending
26(4)
The third kind of statement that can be made is a statement by the TFN determination person 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.
Subdivision C - Variation of determinations
SECTION 26A
26A
Secretary's power to require bank account details
If:
(a)
a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and
(b)
the claimant has not nominated a bank account into which instalments of family tax benefit are to be paid;
the Secretary may require the claimant to give the Secretary, within 28 days of the requirement being made, details of a bank account maintained by the claimant alone, or jointly or in common with someone else, into which instalments of family tax benefit are to be paid.
History
S 26A inserted by No 45 of 2000, s 3 Sch 2 item 29, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 27
Variation of instalment and past period determinations where failure to provide tax file number
Non-compliance with request
27(1)
If:
(a)
the Secretary makes a request under subsection
26(1); and
(b)
the claimant does not comply with the request within 28 days of the request being made;
then, subject to subsection (2), the consequence in subsection (5) applies.
Exemption from request under subsection 26(1)
27(2)
The Secretary may determine that the consequence in subsection (5) does not apply if:
(a)
the TFN determination person concerned is or was the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection 26(3) or (4).
Statement made by TFN determination person under subsection 26(3)
27(3)
If:
(a)
the Secretary makes a request under subsection
26(1); and
(b)
by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(3); and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has no tax file number;
the consequence in subsection (5) applies.
History
S 27(3) amended by No 45 of 2000, s 3 Sch 2 item 30, by substituting paras (b) and (c) for para (b), effective 1 July 2000. For transitional provisions see note under s 7A. Para (b) formerly read:
(b)
by the end of 28 days after the request is made:
(i)
the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(3); and
(ii)
the Commissioner of Taxation tells the Secretary that the person has no tax file number;
Statement made by TFN determination person under subsection 26(4)
27(4)
If:
(a)
the Secretary makes a request under subsection
26(1); and
(b)
by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(4); and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;
the consequence in subsection (5) applies.
History
S 27(4) amended by No 45 of 2000, s 3 Sch 2 item 31, by substituting paras (b) and (c) for para (b), effective 1 July 2000. For transitional provisions see note under s 7A. Para (b) formerly read:
(b)
by the end of 28 days after the request is made:
(i)
the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(4); and
(ii)
the Commissioner of Taxation tells the Secretary that the person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;
Statement made by TFN claim person under subsection 8(4)
27(4A)
If:
(a)
a TFN claim person has made a statement of the kind set out in subsection
8(4); and
(b)
a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment or for a past period; and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;
the consequence in subsection (5) applies.
History
S 27(4A) inserted by No 45 of 2000, s 3 Sch 2 item 32, effective 1 July 2000. For transitional provisions see note under s 7A.
Statement made by TFN claim person under subsection 8(5)
27(4B)
If:
(a)
a TFN claim person has made a statement of the kind set out in subsection
8(5); and
(b)
a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment or for a past period; and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;
the consequence in subsection (5) applies.
History
S 27(4B) inserted by No 45 of 2000, s 3 Sch 2 item 32, effective 1 July 2000. For transitional provisions see note under s 7A.
Variation of determination
27(5)
For the purposes of subsection (1), (3), (4), (4A) or (4B), the consequence is that the Secretary may:
(a)
if the determination is one under which the claimant is entitled to be paid family tax benefit by instalment-vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place; or
(b)
if the determination is one under which the claimant is entitled to be paid family tax benefit for a past period - vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day in the past period.
History
S 27(5) amended by No 45 of 2000, s 3 Sch 2 item 33, by substituting ``, (4), (4A) or (4B)'' for ``or (4)'', effective 1 July 2000. For transitional provisions see note under s 7A.
Consequence of Secretary later becoming aware of tax file number
27(6)
If:
(a)
under subsection (5), the Secretary varies the determination; and
(b)
the Secretary finds out the tax file number of the TFN determination person or TFN claim person, as the case requires:
(i)
if paragraph (5)(a) applies-before the end of the income year following the one in which the variation took effect; or
(ii)
if paragraph (5)(b) applies-at any time after the variation tookplace;
the Secretary must vary the determination to undo the effect mentioned in subsection (5).
History
S 27(6) amended by No 45 of 2000, s 3 Sch 2 item 34, by substituting ``or TFN claim person, as the case requires'' for ``concerned'' in para (b), effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 27A
Variation of instalment entitlement determination where failue to provide bank account details
Non-compliance with requirement
27A(1)
If:
(a)
the claimant is subject to a requirement under section 26A; and
(b)
the claimant does not comply with the requirement within 28 days of the requirement being made;
then, subject to subsection (2), the consequence in subsection (3) applies.
Exemption from requirement under section 26A.
27A(2)
The Secretary may determine that the consequence in subsection (3) does not apply if the Secretary considers that it is appropriate to exempt the claimant from the consequence.
Variation of determination
27A(3)
For the purposes of subsection (1), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.
Consequence of Secretary later becoming aware of bank account details
27A(4)
If:
(a)
under subsection (3), the Secretary varies the determination; and
(b)
the Secretary finds out the bank account details of the claimant concerned before the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (3).
History
S 27A inserted by No 45 of 2000, s 3 Sch 2 item 35, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 28
Variation of instalment and past period entitlement determinations where income tax return not lodged
28(1)
This section applies if:
(a)
a determination under section
16 or
17 is in force at, or was in force before, a particular time; and
(b)
there are one or more days (the
cancellation days
) before the particular time in respect of which the following conditions are satisfied:
(i)
the cancellation days occur in the income year (the
cancellation income year) that began 2 years before the beginning of the income year in which the particular time occurs;
(ii)
the claimant is entitled to be paid family tax benefit under the determination for the cancellation days;
(iii)
the claimant, or the claimant's partner at the particular time (if he or she was also the claimant's partner at some time in the cancellation income year), or both, are required to lodge an income tax return for the cancellation income year but have not done so by the particular time;
(iv)
by the particular time, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income for the cancellation income year of everyone to whom subparagraph (iii) applies.
Consequence of section applying
28(2)
If this section applies, the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.
Consequence where income tax returns are later lodged
28(3)
If:
(a)
after the Secretary varies the determination under subsection (2) or (6), an assessment is made under the
Income Tax Assessment Act 1936 for the cancellation income year for everyone (the
taxpayers involved
):
(i)
who was required to lodge an income tax return as mentioned in subparagraph (1)(b)(iii); and
(ii)
in respect of whom an assessment had not been made before the determination was varied; and
(b)
the Secretary is satisfied that the claimant was eligible for an amount (the
recalculated amount
) of family tax benefit for the cancellation days; and
(ba)
subsection (4) (which is about when the claimant and the claimant's partner separate after the determination is varied) does not apply;
the Secretary must again vary the determination so that it has the effect that, for the cancellation days, the claimant is entitled to be paid:
(c)
if each of the taxpayers involved lodged an income tax return with the Commissioner of Taxation:
(i)
before the end of the income year after the cancellation income year; or
(ii)
within such further period as the taxpayer is allowed under Subdivision D of Division 1 of this Part;
the recalculated amount; or
(d)
in any other case - the lesser of:
(i)
the recalculated amount; and
(ii)
the amount that the claimant was entitled to be paid before the variation under subsection (2) was made.
History
S 28(3) amended by No 70 of 2013, s 3 and Sch 2B item 18, by substituting para (c), applicable in relation to a past period falling in the 2012-13 income year or a later income year. Para (c) formerly read:
(c)
if income tax returns for the cancellation income year for the taxpayers involved were lodged with the Commissioner of Taxation during the income year that began 2 years after the beginning of the cancellation income year - the recalculated amount; or
S 28(3) amended by No 61 of 2005, s 3 and Sch 3 items 5 to 7, by inserting "or (6)" after "subsection (2)" in para (a), inserting para (ba) and substituting "cancellation income year" for "cancellation year" after "returns for the" in para (c), effective 1 January 2006. No 61 of 2005, s 3 and Sch 3 contains the following application and transitional provisions:
9 Application and transitional provisions relating to items 5, 6 and 8
(1)
Application of items 5, 6 and 8
The amendments made by items 5, 6 and 8 apply in respect of a cancellation income year that is the 2001-2002 income year or a later income year.
(2)
Transitional provisions
If a claimant has received an act of grace payment under section 33 of the Financial Management and Accountability Act 1997 of the difference between:
(a)
the recalculated amount; and
(b)
the amount that the claimant was entitled to be paid before a variation under subsection 28(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 was made for the cancellation income year;
then the claimant is not entitled to be paid that amount again under subsection 28(5) of that Act.
(3)
Sections 107 and 109E of the A New Tax System (Family Assistance) (Administration) Act 1999 do not limit the date of effect of a review decision that is made on or before 30 June 2006 that results in a decision under subsection 28(4) of that Act, in respect of the 2001-2002, 2002-2003 or 2003-2004 income year.
S 28(3) substituted by No 33 of 2004, s 3 and Sch 1 items 2 and 6, applicable in respect of cancellation days occurring in the income year beginning on 1 July 2001 or any later income year. S 28(3) formerly read:
Consequence where income tax returns are later lodged
28(3)
If:
(a)
after the Secretary varies the determination under subsection (2), an assessment is made under the Income Tax Assessment Act 1936 for the cancellation income year for everyone:
(i)
who was required to lodge an income tax return as mentioned in subparagraph (1)(b)(iii); and
(ii)
in respect of whom an assessment had not been made before the determination was varied; and
(b)
the Secretary is satisfied that the claimant was eligible for an amount of family tax benefit for the cancellation days;
the Secretary must again vary the determination so that it has the effect that, for the cancellation days, the claimant is entitled to be paid the lesser of:
(c)
that amount of family tax benefit; and
(d)
the amount that the claimant was entitled to be paid before the variation under subsection (2) was made.
Consequence where claimant and partner separate after determination varied
28(4)
After the Secretary varies the determination under subsection (2) or (6), the Secretary must again vary the determination if the following conditions are met:
(a)
the claimant and the partner mentioned in subparagraph (1)(b)(iii) (the
ex-partner
) ceased to be members of the same couple during the further period that the Secretary has allowed, under Subdivision
D of Division
1 of this Part, within which the ex-partner may lodge an income tax return;
(b)
at the time when the Secretary would vary the determination under this subsection, the claimant and the ex-partner are not members of the same couple;
(c)
if the claimant was required to lodge an income tax return for the cancellation income year:
(i)
the claimant has lodged an income tax return for the cancellation income year before the end of the first income year after the cancellation income year, or of the further period that the Secretary has allowed, under Subdivision D of Division 1 of this Part, within which the claimant may lodge an income tax return; and
(ii)
an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant's taxable income for the cancellation income year;
(d)
in any case - the ex-partner was required to lodge an income tax return for the cancellation income year but still had not done so by:
(i)
if paragraph (c) applies - the later of the time when the claimant and the ex-partner last ceased to be members of the same couple and the time when the assessment of the claimant's taxable income is made; or
(ii)
otherwise - the time when the claimant and the ex-partner last ceased to be members of the same couple;
(e)
the Secretary is satisfied that the claimant was eligible for an amount (the
recalculated amount
) of family tax benefit for the cancellation days.
History
S 28(4) amended by No 70 of 2013, s 3 and Sch 2B items 19 and 20, by substituting "during the further period that the Secretary has allowed, under Subdivision D of Division 1 of this Part, within which the ex-partner may lodge an income tax return" for all the words after "couple" in para (a) and substituting para (c), applicable in relation to a past period falling in the 2012-13 income year or a later income year.
The words after "couple" in para (a) formerly read:
during the income year (the
later income year
) that began 2 years after the beginning of the cancellation income year;
Para (c) formerly read:
(c)
if the claimant was required to lodge an income tax return for the cancellation income year - an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant's taxable income for the cancellation income year;
S 28(4) inserted by No 61 of 2005, s 3 and Sch 3 item 8, effective 1 January 2006. For application and transitional provisions, see note under s 28(3).
28(5)
The Secretary must vary the determination under subsection (4) so that it has the effect that, for the cancellation days, the claimant is entitled to be paid the recalculated amount.
History
S 28(5) amended by No 70 of 2013 (as amended by No 5 of 2015), s 3 and Sch 2B item 21, by substituting "paid the recalculated amount" for all the words after "entitled to be" (first occurring), applicable in relation to a past period falling in the 2012-13 income year or a later income year. The words after "entitled to be" formerly read:
paid:
(a)
if:
(i)
the claimant was required to lodge an income tax return for the cancellation income year and the claimant lodged the return with the Commissioner of Taxation before the end of the later income year; or
(ii)
the claimant was not required to lodge an income tax return for the cancellation income year;
the recalculated amount; or
(b)
in any other case - the lesser of:
(i)
the recalculated amount; and
(ii)
the amount that the claimant was entitled to be paid before the variation under subsection (2) or (6) was made.
S 28(5) inserted by No 61 of 2005, s 3 and Sch 3 item 8, effective 1 January 2006. For application and transitional provisions, see note under s 28(3).
Consequence where claimant and ex-partner reconcile after separation
28(6)
If:
(a)
after the Secretary varies the determination under subsection (4), the claimant and the ex-partner become members of the same couple again; and
(b)
the ex-partner has still not lodged an income tax return for the cancellation income year by the time when the claimant and the ex-partner become members of the same couple;
the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.
History
S 28(6) inserted by No 61 of 2005, s 3 and Sch 3 item 8, effective 1 January 2006. For application and transitional provisions, see note under s 28(3).
SECTION 28AA
Effect of section 28 on newborn upfront payment of family tax benefit
28AA(1)
If:
(a)
an individual is entitled to be paid an amount (the
upfront amount
) of family tax benefit under section
58AA of the Family Assistance Act because an amount of newborn supplement is added in relation to the individual under Division
1A of Part
5 of Schedule
1 to that Act for one or more days; and
(b)
a variation under subsection
28(2) or
(6) of this Act has the effect that the individual never was entitled to family tax benefit for those days;
then the individual is taken not to have been entitled to the upfront amount.
28AA(2)
If a variation under subsection
28(3) or
(4) of this Act has the effect that the individual is entitled to be paid family tax benefit for those days, then subsection (1) of this section ceases to apply to the individual.
28AA(3)
Subsection (2) does not prevent subsection (1) again applying to the individual.
History
S 28AA inserted by No 14 of 2014, s 3 and Sch 12 item 85, effective 1 March 2014.
SECTION 28A
VARIATION OF INSTALMENT ENTITLEMENT DETERMINATION WHERE ESTIMATE OF AN AMOUNT IS NOT REASONABLE
28A(1)
This section applies if:
(a)
a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and
(b)
the claimant gives the Secretary an estimate of the amount of adjusted taxable income needed by the Secretary to determine the claimant's eligibility for, or rate of, family tax benefit; and
(c)
the Secretary does not consider the estimate to be reasonable.
History
S 28A(1) amended by No 30 of 2003, s 3and Sch 2 item 18, by substituting ``determine the claimant's eligibility for, or rate of,'' for ``calculate the claimant's rate of'' in para (b), effective 15 April 2003.
Consequence of section applying
28A(2)
If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.
History
S 28A(2) amended by No 36 of 2006, s 3 and Sch 2 item 7, by substituting "may" for "must", applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
Consequence of later provision of reasonable estimate or Secretary finding out the actual amount
28A(3)
If:
(a)
under subsection (2), the Secretary varies the determination; and
(b)
either:
(i)
the claimant provides an estimate of the amount that the Secretary considers reasonable by the end of the income year following the one in which the variation took effect; or
(ii)
the Secretary finds out the actual amount needed to determine the claimant's eligibility for, or rate of, family tax benefit (whether from the claimant or someone else) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (2).
History
S 28A(3) amended by No 30 of 2003, s 3 and Sch 2 item 19, by substituting ``determine the claimant's eligibility for, or rate of,'' for ``calculate the claimant's rate of'' in para (b)(ii), effective 15 April 2003.
S 28A inserted by No 45 of 2000, s 3 Sch 2 item 36, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 28B
Variation of instalment entitlement determination where claim made for another payment type
28B(1)
This section applies if:
(a)
a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment in respect of an individual; and
(b)
the individual is any of the following:
(i)
an FTB child of the claimant;
(ii)
a regular care child who is also a rent assistance child of the claimant;
(iii)
an individual in respect of whom an approved care organisation is the claimant; and
(c)
the individual makes a claim for one of the following:
(i)
a social security pension;
(ii)
a social security benefit;
(iii)
payments under a program included in the programs known as Labour Market Programs;
(iv)
if the individual is aged 16 or more - payments under a prescribed educational scheme, unless subsection (1A) applies to the individual.
History
S 28B(1) amended by No 73 of 2019, s 3 and Sch 1 item 6, by inserting ", unless subsection (1A) applies to the individual" in para (c)(iv), applicable in relation to a claim referred to in paragraph 28B(1)(c) of A New Tax System (Family Assistance) (Administration) Act 1999 that is made on or after 1 January 2020.
S 28B(1) amended by No 146 of 2006, s 3 and Sch 8 item 92, by substituting para (b), effective 1 July 2008. Para (b) formerly read:
(b)
the individual is either:
(i)
an FTB child of the claimant; or
(ii)
an individual in respect of whom an approved care organisation is the claimant; and
28B(1A)
This subsection applies to an individual if:
(a)
the claim is for payments under the ABSTUDY scheme; and
(b)
the individual is seeking the payments to be paid on the basis of the individual:
(i)
undertaking full-time study at a secondary school (within the meaning of the Student Assistance Act 1973); and
(ii)
being, in accordance with the ABSTUDY scheme, a student approved to live away from home; and
(iii)
boarding away from home for the purposes of attending the school.
Note:
For
undertaking full-time study
, see subsection 3(1) of the Family Assistance Act.
History
S 28B(1A) inserted by No 73 of 2019, s 3 and Sch 1 item 7, applicable in relation to a claim referred to in paragraph 28B(1)(c) of A New Tax System (Family Assistance) (Administration) Act 1999 that is made on or after 1 January 2020.
Consequence of section applying if the individual is the claimant's only FTB or regular care child or the claimant is an approved care organisation
28B(2)
If:
(a)
this section applies because the individual is an individual in respect of whom the claimant is an approved care organisation; or
(b)
this section applies because the individual is the only individual who is either an FTB child, or a regular care child who is a rent assistance child, of the claimant;
the Secretary must vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day on which the determination was or will be in force, after the end of the last instalment period before the variation takes place or from a later day determined by the Secretary.
History
S 28B(2) amended by No 146 of 2006, s 3 and Sch 8 item 93, by substituting "the only individual who is either an FTB child, or a regular care child who is a rent assistance child," for "the only FTB child" in para (b) and altering the heading by inserting "or regular care" after "FTB", effective 1 July 2008.
Consequence of section applying if the individual is not the claimant's only FTB or regular care child
28B(3)
If:
(a)
this section applies because the individual is an FTB child, or a regular care child who is also a rent assistance child, of the claimant; and
(b)
the individual is not the claimant's only FTB child, or regular care child who is also a rent assistance child;
the Secretary must vary the determination so that it has the effect that the daily rate of family tax benefit for which the claimant is entitled under the determination does not take into account the child who has made a claim for a payment listed in paragraph (1)(c). The determination takes effect from the day after the end of the claimant's last instalment period before the variation takes place or from a later day determined by the Secretary.
History
S 28B(3) amended by No 146 of 2006, s 3 and Sch 8 items 94 and 95, by substituting "an FTB child, or a regular care child who is also a rent assistance child," for "the FBT child" in para (a), inserting ", or regular care child who is also a rent assistance child" after "FTB child" in para (b) and altering the heading by inserting "or regular care" after "FTB", effective 1 July 2008.
Consequence of later rejection etc. of individual's claim
28B(4)
If:
(a)
under subsection (2) or (3), the Secretary varies the determination; and
(b)
the individual's claim for the payment is rejected, withdrawn or taken not to have been made;
the Secretary must vary the determination to undo the effect mentioned in subsection (2) or (3), as the case may be.
History
S 28B inserted by No 45 of 2000, s 3 Sch 2 item 36, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 29
Variation of instalment entitlement determination where failure to provide information
29(1)
This section applies if:
(a)
a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and
(b)
the Secretary, in order to make a decision about the eligibility, or daily rate of eligibility, of the claimant for family tax benefit on either or both of the following:
(i)
the particular day or any later day;
(ii)
any day or days in the past when the determination was in force;
requires the claimant or the claimant's partner under Division 1 of Part 6 to give information or produce documents; and
(c)
the claimant or the claimant's partner refuses or fails to comply with the requirements.
Consequences of section applying
29(2)
If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.
29(2A)
Without limiting subsection (2), if the information or documents required relate to:
(a)
the claimant's eligibility for rent assistance; or
(b)
the amount of rent assistance to be added in calculating the claimant's rate of family tax benefit;
the Secretary may vary the determination so as to establish a different rate of family tax benefit that does not have the amount of rent assistance added for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place or from a later day determined by the Secretary.
History
S 29(2A) inserted by No 61 of 2005, s 3 and Sch 4 item 31, effective 1 July 2005.
29(2B)
Without limiting subsection (2), if the Secretary considers that the information or document is relevant to whether an individual is a senior secondary school child, the Secretary may vary the determination so as to disregard the individual for the purposes of working out whether the claimant is entitled to be paid family tax benefit, and it so the rate at which it is to be paid:
(a)
for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place; or
(b)
for any later day on which the determination was or will be in force specified by the Secretary in the variation.
History
S 29(2B) amended by No 14 of 2014, s 3 and Sch 3 item 31, by substituting "is a senior secondary school child" for "satisfies or is exempt from the FTB activity test", applicable on and after that commencement in relation to a day occurring before 1 May 2014.
S 29(2B) inserted by No 129 of 2009, s 3 and Sch 1 item 11, effective 1 January 2010. No 129 of 2009, s 3 and Sch 1 items 13 and 14 (as amended by No 45 of 2010, s 3 and Sch 3 items 1 to 3, effective 1 January 2010) contain the following application and transitional provisions:
13 Application
(1)
If a claim for the payment of family tax benefit by instalment is made on or after 1 January 2010, the amendments made by this Schedule apply for the purposes of working out the claimant's entitlement to the payment of family tax benefit by instalment.
(2)
If a claim for the payment of family tax benefit by instalment is made before 1 January 2010, the amendments made by this Schedule apply for the purposes of working out the claimant's entitlement to the payment of family tax benefit by instalment for a day that falls on or after 1 July 2010.
(3)
The amendments made by this Schedule apply to the payment of family tax benefit for a past period to the extent that the period falls on or after 1 January 2010.
14 Obtaining information during the transition period
(1)
If the Secretary considers that information or a document that is in a person's custody or under a person's control may be relevant to whether an individual will satisfy or be exempt from the FTB activity test on 1 July 2010, the Secretary may require the person to give the information or produce the document during the transition period to a specified agency.
(2)
The A New Tax System (Family Assistance) Act 1999 and the A New Tax System (Family Assistance) (Administration) Act 1999 apply as if this item were a requirement under Division 1 of Part 6 of the A New Tax System (Family Assistance) (Administration) Act 1999.
(3)
The
transition period
is the period beginning at the start of 1 January 2010 and ending at the end of 30 June 2010.
Consequences of later provision of information or documents
29(3)
If:
(a)
under subsection (2), (2A) or (2B), the Secretary varies the determination; and
(b)
the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (2), (2A) or (2B).
History
S 29(3) amended by No 129 of 2009, s 3 and Sch 1 item 12, by substituting "subsection (2), (2A) or (2B)" for "subsection (2) or (2A)" (wherever occurring), effective 1 January 2010. For application and transitional provisions, see note under s 29(2B).
S 29(3) amended by No 61 of 2005, s 3 and Sch 4 item 32, by inserting "or (2A)" after "subsection (2)" (wherever occurring), effective 1 July 2005.
SECTION 30
Variation of instalment entitlement determination where failure to notify change of address
30(1)
This section applies if:
(a)
a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and
(b)
the Secretary has reason to believe that the claimant's address has changed since it was last known to the Secretary but the Secretary does not know the claimant's new address; and
(c)
the Secretary, after taking reasonable steps, is not able to find out whether the claimant's address has changed or, if it has, what the claimant's new address is.
Consequence of section applying
30(2)
If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.
Consequence of Secretary later becoming aware of address etc
30(3)
If:
(a)
under subsection (2), the Secretary varies the determination; and
(b)
before the end of the income year following the one in which the variation took effect, the Secretary finds out:
(i)
that the claimant's address has not changed; or
(ii)
what the claimant's new address is;
the Secretary must vary the determination to undo the effect mentioned in subsection (2).
SECTION 30A
Variation of instalment entitlement determination where failure to notify claimant's departure from Australia
30A(1)
This section applies if:
(a)
a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and
(b)
the claimant leaves Australia without having notified the Secretary that the claimant proposed to leave or is leaving; and
(c)
less than 6 weeks have passed since the claimant left Australia.
History
S 30A(1) amended by No 17 of 2016, s 3 and Sch 1 item 27, by substituting "6 weeks" for "56 weeks" in para (c), effective 1 July 2016. For application and saving provision, see note under s 31(1C).
S 30A(1) amended by No 14 of 2014, s 3 and Sch 10 item 6, by substituting "56 weeks" for "3 years" in para (c), applicable in relation to an individual's eligibility for family tax benefit on and from 1 July 2014. For this purpose, it does not matter whether an absence from Australia began before, on or after 1 July 2014.
30A(2)
The Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place.
30A(3)
If the Secretary varies the determination under subsection (2), and later obtains information relating to the question whether the claimant is entitled to be paid family tax benefit for a day described in that subsection, the Secretary must vary the determination to undo the effect mentioned in that subsection.
History
S 30A inserted by No 122 of 2003, s 3 and Sch 4 item 3, applicable in relation to departures from Australia before, on or after 1 July 2004 by persons who are absent from Australia on or after that commencement as a result of those departures.
SECTION 30B
Variation of instalment entitlement determination where failure to notify FTB or regular care child's departure from Australia
30B(1)
This section applies if:
(a)
a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and
(b)
an FTB child, or a regular care child who is also a rent assistance child, of the claimant leaves Australia without the claimant having notified the Secretary that the child will leave or is leaving; and
(c)
less than 6 weeks have passed since the child left Australia.
History
S 30B(1) amended by No 17 of 2016, s 3 and Sch 1 item 28, by substituting "6 weeks" for "56 weeks" in para (c), effective 1 July 2016. For application and saving provision, see note under s 31(1C).
S 30B(1) amended by No 14 of 2014, s 3 and Sch 10 item 7, by substituting "56 weeks" for "3 years" in para (c), applicable in relation to an individual's eligibility for family tax benefit on and from 1 July 2014. For this purpose, it does not matter whether an absence from Australia began before, on or after 1 July 2014.
S 30B(1) amended by No 146 of 2006, s 3 and Sch 8 items 96 and 97, by inserting ", or a regular care child who is also a rent assistance child," after "an FTB child" in para (b), substituting "the child" for "the FTB child" in paras (b) and (c) and altering the s 30B heading by inserting "or regular care" after "FTB" , effective 1 July 2008.
30B(2)
The Secretary may vary the determination so that, for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place, the determination:
(a)
has the effect that the claimant is not entitled to be paid family tax benefit, if the conditions in paragraphs (1)(b) and (c) are met in relation to:
(i)
each FTB child of the claimant; and
(ii)
each regular care child who is also a rent assistance child of the claimant; or
(b)
has the effect that the daily rate of family tax benefit for which the claimant is entitled under the determination does not take into account the FTB child or regular care child, if the conditions in paragraphs (1)(b) and (c) are not met in relation to:
(i)
each FTB child of the claimant; and
(ii)
each regular care child who is also a rent assistance child of the claimant.
History
S 30B(2) amended by No 146 of 2006, s 3 and Sch 8 item 98, by substituting paras (a) and (b), effective 1 July 2008. Paras (a) and (b) formerly read:
(a)
has the effect that the claimant is not entitled to be paid family tax benefit, if the conditions in paragraphs (1)(b) and (c) are met in relation to each FTB child of the claimant; or
(b)
has the effect that the daily rate of family tax benefit for which the claimant is entitled under the determination does not take into account the FTB child, if the conditions in paragraphs (1)(b) and (c) are not met in relation to each FTB child of the claimant.
30B(3)
If the Secretary:
(a)
varies the determination under subsection (2); and
(b)
later obtains information relating to the question whether the claimant is entitled to be paid family tax benefit for the FTB child or regular care child for a day described in that subsection or the question what is the claimant's daily rate of family tax benefit for the day;
the Secretary must vary the determination to undo the effect mentioned in that subsection relating to the day.
History
S 30B(3) amended by No 146 of 2006, s 3 and Sch 8 item 99, by inserting "or regular care child" after "FTB child" in para (b), effective 1 July 2008.
S 30B inserted by No 122 of 2003, s 3 and Sch 4 item 3, applicable in relation to departures from Australia before, on or after 1 July 2004 by persons who are absent from Australia on or after that commencement as a result of those departures.
SECTION 31
Variation of instalment entitlement determination to reflect changes in eligibility
31(1)
If:
(a)
a determination is made under section 16 that a claimant is entitled to be paid family tax benefit by instalment; and
(b)
after the determination is made an event occurs; and
(c)
when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination immediately after the occurrence, he or she would conclude:
(i)
that the claimant was no longer eligible for family tax benefit; or
(ii)
that the claimant was still so eligible but that the rate of family tax benefit should be a different rate to the rate previously determined;
the Secretary must, subject to subsection (2):
(d)
if subparagraph (c)(i) applies - vary the determination so that the claimant is not entitled to be paid family tax benefit with effect from the date of occurrence; and
(e)
if subparagraph (c)(ii) applies - vary the determination so as to establish the different rate with effect from the date of occurrence.
History
S 31(1) substituted by No 45 of 2000, s 3 Sch 2 item 37, effective 1 July 2000. For transitional provisions see note under s 7A. S 31(1) formerly read:
31(1)
If:
(a)
a determination is made under section 16; and
(b)
after the determination is made, a change in the claimant's circumstances occurs; and
(c)
the claimant is entitled to be paid family tax benefit under the determination at some time after the change; and
(d)
when the Secretary becomes aware of the change, the Secretary considers that, if he or she were making the determination immediately after the change, he or she would make it with different effect than the actual determination would have from that time;
the Secretary must, subject to subsection (2), vary the determination so that it had, and will have, that different effect at all times after the change.
31(1A)
For the purpose of subsection (1), the occurrence of an event includes the expiration of a period of time if the expiration of that period is relevant to the operation of this Act.
History
S 31(1A) inserted by No 45 of 2000, s 3 Sch 2 item 37, effective 1 July 2000. For transitional provisions see note under s 7A.
31(1B)
The reference in subsection (1) to the occurrence does not include the occurrence of any event:
(a)
that causes the claimant to provide a revised estimate of the claimant's adjusted taxable income to the Secretary; or
(b)
that causes the Secretary to revise an estimate of the claimant's maintenance income;
unless:
(c)
the event also affects the claimant's eligibility for family tax benefit, or the rate of family tax benefit payable to the claimant, for a reason other than the amount of the claimant's adjusted taxable income or maintenance income; or
(d)
the event is the claimant's becoming, or ceasing to be, a member of a couple.
History
S 31(1B) inserted by No 45 of 2000, s 3 Sch 2 item 37, effective 1 July 2000. For transitional provisions see note under s 7A.
31(1C)
If:
(a)
the Secretary under paragraph (1)(d) varies a determination in relation to an individual because of subsection
24(1) of the Family Assistance Act; and
(b)
the child concerned comes to Australia within the period of 13 weeks beginning on the day after the end of:
(i)
the 6-week period referred to in subsection 24(1) of the Family Assistance Act; or
(ii)
if that 6-week period has been extended under subsection 24(7) or (9) of the Family Assistance Act - that period as so extended; and
(c)
the Secretary is satisfied that the individual is eligible for family tax benefit on the day the child comes to Australia;
then the Secretary must vary the determination so that the individual is entitled to be paid family tax benefit with effect from the date of the child coming to Australia.
Note:
The individual does not have to make another claim for family tax benefit.
History
S 31(1C) inserted by No 17 of 2016, s 3 and Sch 1 item 29, effective 1 July 2016. No 17 of 2016, s 3 and Sch 1 item 31 contains the following application and saving provision:
31 Application and saving provisions
(1)
Subject to this item, the amendments made by this Schedule apply in relation to absences from Australia starting on or after the commencement of this item.
Absence of FTB child or regular care child
(2)
If:
(a)
in relation to a child, the 56-week period mentioned in subsection 24(1) of the A New Tax System (Family Assistance) Act 1999 (as in force immediately before the commencement of this item) began before that commencement; and
(b)
the child leaves Australia on or after that commencement; and
(c)
if section 24 of that Act, as in force immediately before that commencement, were still in force at the time of that leaving - subsection 24(2) or (3) of that Act would have applied in relation to the child;
then the amendments made by this Schedule do not apply in relation to the child's absence from Australia referred to in paragraph (b).
Absence of individual
(3)
If:
(a)
in relation to an individual, the 56-week period mentioned in subsection 24(4) of the A New Tax System (Family Assistance) Act 1999 (as in force immediately before the commencement of this item) began before that commencement; and
(b)
the individual leaves Australia on or after that commencement; and
(c)
if section 24 of that Act, as in force immediately before that commencement, were still in force at the time of that leaving - subsection 24(5) or (6) of that Act would have applied in relation to the individual;
then the amendments made by this Schedule do not apply in relation to the individual's absence from Australia referred to in paragraph (b).
31(1D)
If:
(a)
the Secretary under paragraph (1)(d) varies a determination in relation to an individual because of subsection
24(4) of the Family Assistance Act; and
(b)
the individual returns to Australia within the period of 13 weeks beginning on the day after the end of:
(i)
the 6-week period referred to in subsection 24(4) of the Family Assistance Act; or
(ii)
if that 6-week period has been extended under subsection 24(7), (9) or (10) of the Family Assistance Act - that period as so extended; and
(c)
the Secretary is satisfied that the individual is eligible for family tax benefit on the day the individual returns to Australia;
then the Secretary must vary the determination so that the individual is entitled to be paid family tax benefit with effect from the date of the individual's return to Australia.
Note:
The individual does not have to make another claim for family tax benefit.
History
S 31(1D) inserted by No 17 of 2016, s 3 and Sch 1 item 29, effective 1 July 2016. For application and saving provision, see note under s 31(1C).
31(1E)
Subsections (1C) and (1D) do not limit any later application of subsection (1) in relation to the determination.
Example:
The Secretary under subsection (1D) varies the determination so that the individual is entitled to be paid family tax benefit.
The individual remains in Australia for 8 weeks, but then leaves Australia again for more than 6 weeks.
Because of subsection 24(4) of the Family Assistance Act, the Secretary may, under paragraph (1)(d) of this section, vary the determination again so that the individual is not entitled to be paid family tax benefit.
History
S 31(1E) inserted by No 17 of 2016, s 3 and Sch 1 item 29, effective 1 July 2016. For application and saving provision, see note under s 31(1C).
Beneficial variations only to have limited effect
31(2)
If:
(a)
the Secretary does not become aware of the occurrence of the event until after the end of the income year (the
second income year
) following the one in which the event occurred; and
(b)
the claimant did not notify the Secretary of the occurrence of the event before the end of the second income year; and
(c)
apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant's entitlement to family tax benefit under the determination;
the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.
History
S 31(2) amended by No 45 of 2000, s 3 Sch 2 items 38 to 41, by substituting "occurrence of the event" for "change in the claimant's circumstances" and "event" for "change" (second occurring) in para (a); substituting "occurrence of the event" for "change" in para (b); and substituting "event" for "change" (last occurring), effective 1 July 2000. For transitional provisions see note under s 7A.
Sections 27, 27A, 28, 28A, 28B, 30, 30A and 30B and subsection 29(2) variations prevail
31(3)
If:
(a)
when the variation under this section takes place, a variation of the determination is in force under section
27, 27A,
28, 28A, 28B,
30, 30A or 30B or subsection 29(2); and
(b)
the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;
the variation under that section or subsection prevails over the variation under this section.
History
S 31(3) substituted by No 61 of 2005, s 3 and Sch 4 item 33, effective 1 July 2005. S 31(3) formerly read:
Sections27, 27A, 28, 28A, 28B, 29, 30, 30A and 30B variations prevail
31(3)
If:
(a)
when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 29, 30, 30A or 30B; and
(b)
the variation under that section has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;
the variation under that section prevails over the variation under this section.
S 31(3) amended by No 122 of 2003, s 3 and Sch 4 item 4, by substituting ", 30, 30A or 30B" for "or 30" in para (a), applicable in relation to departures from Australia before, on or after 1 July 2004 by persons who are absent from Australia on or after that commencement as a result of those departures.
S 31(3) amended by No 45 of 2000, s 3 Sch 2 item 42, by substituting "27A, 28, 28A, 28B," for "28," in para (a), effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 31A
VARIATION OF INSTALMENT ENTITLEMENT DETERMINATION TO REFLECT REVISED ADJUSTED TAXABLE INCOME ESTIMATES
31A(1)
If:
(a)
a determination is in force on a particular day under which a claimant is entitled to be paid family tax benefit by instalment; and
(b)
the determination includes a determination of the claimant's rate of family tax benefit worked out on the basis of a reasonable estimate of the claimant's adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant; and
(c)
the claimant provides the Secretary with a revised estimate of the claimant's adjusted taxable income for the current income year or the next income year that is not attributable to an event mentioned in paragraph 31(1B)(c) or (d); and
(d)
the Secretary considers the revised estimate to be reasonable; and
(e)
if the claimant's rate of family tax benefit were calculated using the revised estimate - a new rate of family tax benefit would be required;
the Secretary must vary the determination so that the claimant's rate of family tax benefit is determined on the basis of that revised estimate.
Note:
Section 20C affects the meaning of paragraph (1)(b) for couples.
History
S 31A(1) amended by No 36 of 2006, s 3 and Sch 2 items 8 and 9, by substituting paras (b) and (c) and inserting the note at the end, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
Paras (b) and (c) formerly read:
(b)
that determination includes a determination of the claimant's rate of family tax benefit worked out on the basis of an estimate of the claimant's adjusted taxable income in a particular income year; and
(c)
the claimant, at any time before or during that income year, provides the Secretary with a revised estimate of that amount that is attributable to the occurrence of an event other than an event to which paragraph 31(1B)(c) or (d) applies; and
31A(2)
A variation of a determination under subsection (1) has effect:
(a)
if it results in an increase in the claimant's rate of family tax benefit:
(i)
unless subparagraph (ii) applies - from the day on which the revised estimate was provided to the Secretary; or
(ii)
if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i) - from that first day; and
(b)
if it results in a decrease (including a decrease to nil) in the claimant's rate of family tax benefit:
(i)
unless subparagraph (ii) or (iii) applies - from the day on which the revised estimate was provided to the Secretary; or
(ii)
if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i) and subparagraph (iii) does not apply - from that first day; or
(iii)
if the day after the end of the last instalment period before the variation takes place occurs after the days identified in subparagraphs (i) and (ii) - from the day first-mentioned in this subparagraph.
31A(3)
If:
(a)
when the variation under this section takes place, a variation of the determination is in force under section
27, 27A,
28, 28A, 28B,
30, 30A or 30B or subsection 29(2); and
(b)
the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;
the variation under that section or subsection prevails over the variation under this section.
History
S 31A(3) substituted by No 61 of 2005, s 3 and Sch 4 item 34, effective 1 July 2005. S 31A(3) formerly read:
31A(3)
If:
(a)
when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 29, 30, 30A or 30B; and
(b)
the variation under that section has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;
the variation under that section prevails over the variation under this section.
S 31A(3) amended by No 122 of 2003, s 3 and Sch 4 item 4, by substituting ``, 30, 30A or 30B'' for ``or 30'' in para (a), applicable in relation to departures from Australia before, on or after 1 July 2004 by persons who are absent from Australia on or after that commencement as a result of those departures.
S 31A inserted by No 45 of 2000, s 3 Sch 2 item 43, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 31B
Variation of instalment entitlement determination to reflect revised maintenance income estimates
31B(1)
If:
(a)
a determination is in force on a particular day under which a claimant is entitled to be paid family tax benefit by instalment; and
(b)
that determination includes a determination of the claimant's rate of family tax benefit worked out on the basis of an estimate of the claimant's maintenance income in a particular income year; and
(c)
the Secretary, at any time before or during that income year, makes a revised estimate of that amount that is attributable to the occurrence of an event other than an event to which paragraph 31(1B)(c) or (d) applies; and
(d)
if the claimant's rate of family tax benefit were calculated using the revised estimate - a new rate of family tax benefit would be required;
the Secretary must vary the determination so that the claimant's rate of family tax benefit is determined on the basis of that revised estimate.
31B(2)
A variation of a determination under subsection (1) has effect from a day determined by the Secretary, which must not be earlier than either of the following:
(a)
the day after the end of the last instalment period before the variation takes place;
(b)
the first day of the income year to which the revised estimate relates.
31B(3)
If:
(a)
when the variation under this section takes place, a variation of the determination is in force under section
27, 27A,
28, 28A, 28B,
30, 30A or 30B or subsection 29(2); and
(b)
the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;
the variation under that section or subsection prevails over the variation under this section.
History
S 31B(3) substituted by No 61 of 2005, s 3 and Sch 4 item 35, effective 1 July 2005. S 31B(3) formerly read:
31B(3)
If:
(a)
when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 29, 30, 30A or 30B; and
(b)
the variation under that section has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;
the variation under that section prevails over the variation under this section.
S 31B(3) amended by No 122 of 2003, s 3 and Sch 4 item 4, by substituting ``, 30, 30A or 30B'' for ``or 30'' in para (a), applicable in relation to departures from Australia before, on or after 1 July 2004 by persons who are absent from Australia on or after that commencement as a result of those departures.
S 31B inserted by No 45 of 2000, s 3 Sch 2 item 43, effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 31C
VARIATION OF INSTALMENT ENTITLEMENT DETERMINATION TO REFLECT INDEXATION OF ESTIMATE OR ADJUSTED TAXABLE INCOME
31C(1)
If:
(a)
a determination is in force under which a claimant is entitled to be paid family tax benefit by instalment; and
(b)
the Secretary gives the claimant a notice under subsection
20A(2); and
(c)
the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable; and
(d)
if the claimant's rate of family tax benefit were calculated using the indexed estimate stated in the notice - a new rate of family tax benefit would be required;
the Secretary may vary the determination so that the claimant's rate of family tax benefit is determined on the basis of the indexed estimate stated in the notice.
Note:
Section 20C affects the meaning of this provision for members of couples.
31C(2)
The variation has effect:
(a)
from the start day specified in the notice for the indexed estimate; or
(b)
if the variation is made after that start day - from the later of the start day and the first day of the instalment period in which the variation is made.
History
S 31C inserted by No 36 of 2006, s 3 and Sch 2 item 10, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 31D
VARIATION OF INSTALMENT ENTITLEMENT DETERMINATION TO REFLECT INDEXATION OF ADJUSTED TAXABLE INCOME
31D(1)
If:
(a)
a determination is in force under which a claimant is entitled to be paid family tax benefit by instalment; and
(b)
the Secretary gives the claimant a notice under subsection
20B(2); and
(c)
the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable; and
(d)
if the claimant's rate of family tax benefit were calculated using the indexed actual income stated in the notice - a new rate of family tax benefit would be required;
the Secretary may vary the determination so that the claimant's rate of family tax benefit is determined on the basis of the indexed actual income stated in the notice.
Note:
Section 20C affects the meaning of this provision for members of couples.
31D(2)
The variation has effect:
(a)
from the start day specified in the notice for the indexed actual income; or
(b)
if the variation is made after that start day - from the later of the start day and the first day of the instalment period in which the variation is made.
History
S 31D inserted by No 36 of 2006, s 3 and Sch 2 item 10, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 31E
Continuous adjustment of daily rate of family tax benefit
31E(1)
This section applies if:
(a)
a determination is in force in an income year under which a claimant is entitled to be paid family tax benefit by instalment; and
(b)
one of the following applies:
(i)
a variation of the determination under subsection 31A(1) has effect on a day in the income year that is after 1 July;
(ii)
a variation of the determination under subsection 31B(1) has effect on a day in the income year that is after 1 July;
(iii)
a variation of the determination under subsection 31C(1) has effect on a day in the income year that is after 1 July;
(iv)
a variation of the determination under subsection 31D(1) has effect on a day in the income year that is after 1 July;
(v)
on a day in the income year, the claimant provides the Secretary with a revised estimate of the claimant's adjusted taxable income for the income year that does not result in a variation of the determination under subsection 31A(1);
(vi)
on a day in the income year that is after 1 July, the Secretary makes a revised estimate of the claimant's maintenance income that does not result in a variation of the determination under subsection 31B(1);
(vii)
the determination ceases to be in force in the income year and another determination comes into force in that income year under which the claimant is entitled to be paid family tax benefit by instalment or family tax benefit for a past period that falls wholly within that income year.
History
S 31E(1) amended by No 53 of 2011, s 3 and Sch 5 item 20, by inserting para (b)(vii) at the end, effective 1 July 2011.
31E(2)
The Secretary must apply the following method statement to work out if there is a daily overpayment rate:
Method statement
Step 1.
Work out the total amount of family tax benefit the claimant is or was entitled to be paid during the period beginning at the start of the income year and ending at the end of the day before the applicable day.
Step 2.
Work out the total amount of family tax benefit the claimant would have been entitled to be paid during that period if the claimant's rate of family tax benefit were calculated using:
(a) if subparagraph (1)(b)(i) applies - the revised estimate concerned; or
(b) if subparagraph (1)(b)(ii) applies - the revised estimate concerned; or
(c) if subparagraph (1)(b)(iii) applies - the indexed estimate concerned; or
(d) if subparagraph (1)(b)(iv) applies - the indexed actual income concerned; or
(e) if subparagraph (1)(b)(v) applies - the revised estimate concerned; or
(f) if subparagraph (1)(b)(vi) applies - the revised estimate concerned; or
(g) if subparagraph (1)(b)(vii) applies - the estimate of the claimant's adjusted taxable income for the income year, and the estimate of the claimant's maintenance income in that income year, that were used in determining the claimant's rate of family tax benefit under the other determination referred to in that subparagraph.
Step 3.
Take the amount worked out at step 2 away from the amount worked out at step 1.
Step 4.
If the amount worked out at step 3 is greater than zero, work out the number of days during the period beginning on the applicable day and ending at the end of the last day in the income year.
Step 5.
Work out the
daily overpayment rate
by dividing the amount worked out at step 3 by the number of days worked out at step 4, and rounding the result of the division to the nearest cent (rounding 0.5 cents upwards).
History
S 31E(2) amended by No 53 of 2011, s 3 and Sch 5 items 21 and 22, by inserting para (g) at the end of step 2 of the method statement and inserting ", and rounding the result of the division to the nearest cent (rounding 0.5 cents upwards)" at the end of step 5 of the method statement, effective 1 July 2011.
31E(3)
If there is a daily overpayment rate, the Secretary must vary the applicable determination so that the claimant's daily rate of family tax benefit for the period beginning on the applicable day and ending at the end of the last day in the income year is reduced (but not below nil) by that daily overpayment rate.
History
S 31E(3) amended by No 53 of 2011, s 3 and Sch 5 item 23, by inserting "applicable" after "vary the", effective 1 July 2011.
31E(3A)
For the purposes of subsection (3), the
applicable determination
is:
(a)
if subparagraph (1)(b)(i), (ii), (iii), (iv), (v) or (vi) applies - the determination referred to in paragraph (1)(a); or
(b)
if subparagraph (1)(b)(vii) applies - the other determination referred to in that subparagraph.
History
S 31E(3A) inserted by No 53 of 2011, s 3 and Sch 5 item 24, effective 1 July 2011.
31E(4)
This section may have more than one application in relation to the claimant during the income year.
31E(5)
In this section:
"applicable day"
means:
(a)
if subparagraph (1)(b)(i), (ii), (iii) or (iv) applies - the day on which the variation concerned has effect; and
(b)
if subparagraph (1)(b)(v) or (vi) applies - the first day of the instalment period in which the Secretary applies the method statement because of that subparagraph applying; and
(c)
if subparagraph (1)(b)(vii) applies - the first day in the income year for which the claimant's entitlement to be paid family tax benefit arose under the other determination referred to in that subparagraph.
History
Definition of "applicable day" amended by No 53 of 2011, s 3 and Sch 5 item 25, by inserting para (c), effective 1 July 2011.
S 31E inserted by No 49 of 2009, s 3 and Sch 1 item 1, effective 1 July 2009. No 49 of 2009, s 3 and Sch 1 item 2 contains the following application provision:
Application
(1)
Subparagraphs 31E(1)(b)(i) to (iv) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, apply in relation to variations made under subsection 31A(1), 31B(1), 31C(1) or 31D(1) of that Act on or after 1 July 2009 (regardless of whether the determination referred to in paragraph 31E(1)(a) was made before, on or after 1 July 2009).
(2)
Subparagraphs 31E(1)(b)(v) and (vi) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, apply in relation to revised estimates provided or made on or after 1 July 2009 (regardless of whether the determination referred to in paragraph 31E(1)(a) of that Act was made before, on or after 1 July 2009).
SECTION 32
Notice of variation of determination
32(1)
The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part
5.
32(2)
The variation is not ineffective by reason only that the requirements of subsection (1) are not complied with.
History
S 32(2) amended by No 45 of 2000, s 3 Sch 2 item 44, by substituting ``by reason only that'' for ``to any extent if'', effective 1 July 2000. For transitional provisions see note under s 7A.
Subdivision CA - Non-payment of family tax benefit for non-lodgment of tax returns
History
Subdiv CA inserted by No 49 of 2009, s 3 and Sch 2 item 3, effective 1 July 2009. No 49 of 2009, s 3 and Sch 2 item 7 contains the following application provision:
Application - amendment commencing on 1 July 2009
(1)
The amendment made by item 3 applies in relation to a variation made under subsection 28(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 before, on or after 1 July 2009 (regardless of whether the determination being varied was made before, on or after 1 July 2009).
(2)
However, subitem (1) does not apply in relation to a variation made before 1 July 2009 if each person mentioned in subparagraph 28(1)(b)(iii) of the A New Tax System (Family Assistance) (Administration) Act 1999 and required to lodge an income tax return for the cancellation income year concerned had lodged the return before 1 July 2009.
(3)
In relation to a variation made before 1 July 2009 to which subitem (1) applies, the period referred to in paragraph (a) of the definition of
grace period
in subsection 32AB(8) or 32AC(10) of the A New Tax System (Family Assistance) (Administration) Act 1999 is taken to begin on 1 July 2009 (instead of the day the variation is made).
SECTION 32AA
Non-payment of family tax benefit for non-lodgment of tax returns
32AA(1)
If the Secretary varies a determination under subsection
28(2) in relation to a claimant, the Secretary must not make a payment of family tax benefit (worked out on an estimated income basis) to:
(a)
the claimant during a prohibited period for the claimant (see section
32AB); and
(b)
the claimant's partner (if any) (the
relevant partner
) mentioned in subparagraph
28(1)(b)(iii) during a prohibited period for that partner (see section
32AC).
History
S 32AA(1) amended by No 49 of 2012, s 3 and Sch 3 item 5, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3)", effective 1 July 2012.
S 32AA(1) renumbered from s 32AA by No 49 of 2009, s 3 and Sch 2 item 4, by inserting "(1)" before "If", effective 1 July 2010.
S 32AA inserted by No 49 of 2009, s 3 and Sch 2 item 3, effective 1 July 2009. For application provision, see note under Subdiv CA heading.
32AA(2)
This section is subject to section
32AE.
History
S 32AA(2) inserted by No 49 of 2009, s 3 and Sch 2 item 5, effective 1 July 2010.
SECTION 32AB
Prohibited periods for claimant
First kind of prohibited period
32AB(1)
There is a prohibited period for the claimant if:
(a)
the claimant was required to lodge an income tax return for the cancellation income year concerned but the claimant has not done so by the end of the grace period; or
(b)
the claimant and the relevant partner are members of the same couple at the end of the grace period, and that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.
Note:
For
relevant partner
see section 32AA. For
grace period
see subsection (8).
32AB(1A)
However, there is not a prohibited period for the claimant under subsection (1) because of a variation mentioned in section
32AA if:
(a)
no debt arose under section
71 as a result of that variation; or
(b)
a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.
History
S 32AB(1A) inserted by No 65 of 2010, s 3 and Sch 3 item 1, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AB(2)
The prohibited period referred to in subsection (1):
(a)
begins on the day after the end of the grace period; and
(b)
ends when subsection (3), (4), (4A) or (7) applies (whichever occurs first).
History
S 32AB(2) amended by No 65 of 2010, s 3 and Sch 3 item 2, by inserting ", (4A)" after "(4)" in para (b), effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AB(3)
This subsection applies if:
(a)
if the claimant was required to lodge an income tax return for the cancellation income year concerned - the claimant lodges or has lodged the return; and
(b)
if the relevant partner was required to lodge an income tax return for the cancellation income year concerned - that partner lodges or has lodged the return.
32AB(4)
This subsection applies if:
(a)
the claimant and the relevant partner cease to be members of the same couple at any time after the end of the grace period; and
(b)
if the claimant was required to lodge an income tax return for the cancellation income year concerned - the claimant lodges or has lodged the return.
32AB(4A)
This subsection applies if:
(a)
a debt arose under section
71 as a result of the variation mentioned in section
32AA; and
(b)
an amount of that debt was outstanding at the end of the grace period; and
(c)
at a time after the end of the grace period, no amount of that debt is outstanding.
History
S 32AB(4A) inserted by No 65 of 2010, s 3 and Sch 3 item 3, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
Second kind of prohibited period
32AB(5)
There is a prohibited period for the claimant if:
(a)
the claimant and the relevant partner cease to be members of the same couple on or after the day the variation mentioned in section
32AA is made; and
(b)
the claimant and that partner become members of the same couple again on a day (the
applicable day
) that is after the end of the period applicable under paragraph (a) of the definition of
grace period
in subsection (8); and
(c)
that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.
32AB(5A)
However, there is not a prohibited period for the claimant under subsection (5) because of a variation mentioned in section
32AA if:
(a)
no debt arose under section
71 as a result of that variation; or
(b)
a debt arose under section
71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).
History
S 32AB(5A) inserted by No 65 of 2010, s 3 and Sch 3 item 4, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AB(6)
The prohibited period referred to in subsection (5):
(a)
begins on the day determined by the Secretary (which must not be earlier than the applicable day); and
(b)
ends when:
(i)
the relevant partner lodges an income tax return for the cancellation income year concerned; or
(ii)
the claimant and the relevant partner cease to be members of the same couple again; or
(iii)
subsection (6A) or (7) applies;
whichever occurs first.
History
S 32AB(6) amended by No 65 of 2010, s 3 and Sch 3 item 5, by inserting "(6A) or" after "subsection" in para (b)(iii), effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AB(6A)
This subsection applies if:
(a)
a debt arose under section
71 as a result of the variation mentioned in section
32AA; and
(b)
an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and
(c)
at a time on or after that day, no amount of that debt is outstanding.
History
S 32AB(6A) inserted by No 65 of 2010, s 3 and Sch 3 item 6, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
Prohibited period may end in special circumstances
32AB(7)
This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
Grace period
32AB(8)
In this section:
grace period
means:
(a)
the period of 75 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the variation mentioned in section
32AA is made; or
(b)
if subsection (7) has applied in relation to a previous prohibited period - the period of 14 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the determination mentioned in subsection (7) is made.
Note:
The effect of paragraph (b) of the definition is that there may be another prohibited period for the claimant under subsection (1).
32AB(9)
The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of
grace period
in subsection (8) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
Determinations are not legislative instruments
32AB(10)
A determination made under paragraph (6)(a) or subsection (7) or (9) is not a legislative instrument.
History
S 32AB inserted by No 49 of 2009, s 3 and Sch 2 item 3, effective 1 July 2009. For application provision, see note under Subdiv CA heading.
SECTION 32AC
Prohibited periods for relevant partner
First kind of prohibited period
32AC(1)
There is a prohibited period for the relevant partner if:
(a)
the claimant and that partner are members of the same couple at the end of the grace period; and
(b)
either or both of the following apply:
(i)
the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period;
(ii)
that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.
Note:
For
relevant partner
see section 32AA. For
grace period
see subsection (10).
32AC(1A)
However, there is not a prohibited period for the relevant partner under subsection (1) because of a variation mentioned in section
32AA if:
(a)
no debt arose under section
71 as a result of that variation; or
(b)
a debt arose under section
71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.
History
S 32AC(1A) inserted by No 65 of 2010, s 3 and Sch 3 item 7, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AC(2)
The prohibited period referred to in subsection (1):
(a)
begins on the day after the end of the grace period; and
(b)
ends when subsection (3), (4), (4A) or (9) applies (whichever occurs first).
History
S 32AC(2) amended by No 65 of 2010, s 3 and Sch 3 item 8, by inserting ", (4A)" after "(4)" in para (b), effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AC(3)
This subsection applies if:
(a)
if that partner was required to lodge an income tax return for the cancellation income year concerned - that partner lodges or has lodged the return; and
(b)
if the claimant was required to lodge an income tax return for the cancellation income year concerned - the claimant lodges or has lodged the return.
32AC(4)
This subsection applies if the claimant and that partner cease to be members of the same couple at any time after the end of the grace period.
32AC(4A)
This subsection applies if:
(a)
a debt arose under section
71 as a result of the variation mentioned in section
32AA; and
(b)
an amount of that debt was outstanding at the end of the grace period; and
(c)
at a time after the end of the grace period, no amount of that debt is outstanding.
History
S 32AC(4A) inserted by No 65 of 2010, s 3 and Sch 3 item 9, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
Second kind of prohibited period
32AC(5)
There is a prohibited period for the relevant partner if:
(a)
the claimant and that partner cease to be members of the same couple on or after the day the variation mentioned in section
32AA is made; and
(b)
the claimant and that partner become members of the same couple again on a day (the
applicable day
) that is after the end of the period applicable under paragraph (a) of the definition of
grace period
in subsection (10); and
(c)
either or both of the following apply:
(i)
the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day;
(ii)
that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.
32AC(5A)
However, there is not a prohibited period for the relevant partner under subsection (5) because of a variation mentioned in section
32AA if:
(a)
no debt arose under section
71 as a result of that variation; or
(b)
a debt arose under section
71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).
History
S 32AC(5A) inserted by No 65 of 2010, s 3 and Sch 3 item 10, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AC(6)
The prohibited period referred to in subsection (5):
(a)
begins on the day determined by the Secretary (which must not be earlier than the applicable day); and
(b)
ends when subsection (7), (8), (8A) or (9) applies (whichever occurs first).
History
S 32AC(6) amended by No 65 of 2010, s 3 and Sch 3 item 11, by inserting ", (8A)" after "(8)" effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
32AC(7)
This subsection applies if:
(a)
if that partner was required to lodge an income tax return for the cancellation income year concerned - that partner lodges or has lodged the return; and
(b)
if the claimant was required to lodge an income tax return for the cancellation income year concerned - the claimant lodges or has lodged the return.
32AC(8)
This subsection applies if the claimant and that partner cease to be members of the same couple again.
32AC(8A)
This subsection applies if:
(a)
a debt arose under section
71 as a result of the variation mentioned in section
32AA; and
(b)
an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and
(c)
at a time on or after that day, no amount of that debt is outstanding.
History
S 32AC(8A) inserted by No 65 of 2010, s 3 and Sch 3 item 12, effective 1 July 2010 and applicable in relation to variations made before, on or after 1 July 2010.
Prohibited period may end in special circumstances
32AC(9)
This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
Grace period
32AC(10)
In this section:
grace period
means:
(a)
the period of 75 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the variation mentioned in section
32AA is made; or
(b)
if subsection (9) has applied in relation to a previous prohibited period - the period of 14 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the determination mentioned in subsection (9) is made.
Note:
The effect of paragraph (b) of the definition is that there may be another prohibited period for the relevant partner under subsection (1).
32AC(11)
The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of
grace period
in subsection (10) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
Determinations are not legislative instruments
32AC(12)
A determination made under paragraph (6)(a) or subsection (9) or (11) is not a legislative instrument.
History
S 32AC inserted by No 49 of 2009, s 3 and Sch 2 item 3, effective 1 July 2009. For application provision, see note under Subdiv CA heading.
SECTION 32AD
32AD
Prohibited periods for new partner
If:
(a)
on or after the day the variation mentioned in section
32AA is made, the claimant becomes a member of a couple and the claimant's partner (the
new partner
) is not the relevant partner; and
(b)
the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so when the claimant becomes a member of that couple;
then, during a prohibited period for the claimant and while the claimant and the new partner are members of the same couple, the Secretary must not make a payment of family tax benefit (worked out on an estimated income basis) to the new partner.
History
S 32AD amended by No 49 of 2012, s 3 and Sch 3 item 6, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3)", effective 1 July 2012.
S 32AD inserted by No 49 of 2009, s 3 and Sch 2 item 3, effective 1 July 2009. For application provision, see note under Subdiv CA heading.
SECTION 32AE
Non-entitlement to payment of family tax benefit after 3 or more variations under subsection 28(2)
32AE(1)
This section applies if 3 or more variations under subsection
28(2) have been made in relation to a claimant.
History
S 32AE(1) amended by No 65 of 2010, s 3 and Sch 3 item 13, by insering "or more" after "3", effective 1 July 2010. Act No 65 of 2010 contains the following further application provision:
15 Application and transitional
…
(2)
Subsection 32AE(1) of the A New Tax System (Family Assistance) (Administration) Act 1999, as amended by this Act, does not apply in relation to a variation made before 1 July 2010 if:
(a)
no debt arose under section 71 of that Act as a result of that variation; or
(b)
a debt arose under section 71 of that Act as a result of that variation, but no amount of that debt is outstanding immediately before that commencement.
Claimant
32AE(2)
The claimant is not entitled to be paid family tax benefit (worked out on an estimated income basis) for a period if, throughout that period, both subsections (3) and (4) of this section apply in relation to one or more of the cancellation income years concerned.
Note 1:
For
cancellation income year
see subsection 28(1).
Note 2:
Subsection (8) creates an exception to subsection (2).
History
S 32AE(2) amended by No 49 of 2012, s 3 and Sch 3 item 7, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3)", effective 1 July 2012.
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010. S 32AE(2) formerly read:
32AE(2)
The claimant is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) in respect of a period in which either or both of the following apply:
(a)
if the claimant was required to lodge an income tax return for one or more of the cancellation income years concerned - the claimant has not lodged each of those returns;
(b)
if the claimant is a member of a couple and the claimant's partner is a relevant partner in relation to one or more of the cancellation income years concerned and that partner was required to lodge an income tax return for one or more of those years - that partner has not lodged each of those returns.
Note:
For
relevant partner
see section 32AA.
32AE(3)
This subsection applies in relation to a cancellation income year if either or both of the following apply:
(a)
if the claimant was required to lodge an income tax return for that year - the claimant has not lodged that return;
(b)
if the claimant is a member of a couple and the claimant's partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year - that partner has not lodged that return.
Note:
For
relevant partner
see section 32AA.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010. S 32AE(3) formerly read:
Partner
32AE(3)
If the claimant is a member of a couple, the claimant's partner is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) in respect of a period in which either or both of the following apply:
(a)
if the claimant was required to lodge an income tax return for one or more of the cancellation income years concerned - the claimant has not lodged each of those returns;
(b)
if the claimant's partner is a relevant partner in relation to one or more of the cancellation income years concerned and that partner was required to lodge an income tax return for one or more of those years - that partner has not lodged each of those returns.
32AE(4)
This subsection applies in relation to a cancellation income year if a debt arose under section
71 as a result of the variation concerned and an amount of that debt is outstanding.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
Partner
32AE(5)
If the claimant is a member of a couple, the claimant's partner is not entitled to be paid family tax benefit (worked out on an estimated income basis) for a period if, throughout that period, both subsections (6) and (7) of this section apply in relation to one or more of the cancellation income years concerned.
Note 1:
For
cancellation income year
see subsection 28(1).
Note 2:
Subsection (9) creates an exception to subsection (5).
History
S 32AE(5) amended by No 49 of 2012, s 3 and Sch 3 item 7, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3)", effective 1 July 2012.
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
32AE(6)
This subsection applies in relation to a cancellation income year if either or both of the following apply:
(a)
if the claimant was required to lodge an income tax return for that year - the claimant has not lodged that return;
(b)
if the claimant's partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year - that partner has not lodged that return.
Note:
For
relevant partner
see section 32AA.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
32AE(7)
This subsection applies in relation to a cancellation income year if a debt arose under section
71 as a result of the variation concerned and an amount of that debt is outstanding.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
Exceptions
32AE(8)
The Secretary may, by writing, determine that subsection (2) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
32AE(9)
The Secretary may, by writing, determine that subsection (5) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
32AE(10)
A period specified in a determination under subsection (8) or (9) may be a period beginning before, on or after the day the determination is made.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
32AE(11)
A determination made under subsection (8) or (9) is not a legislative instrument.
History
S 32AE(2) to (11) substituted for s 32AE(2) and (3) by No 65 of 2010, s 3 and Sch 3 item 14, effective 1 July 2010.
History
S 32AE inserted by No 49 of 2009, s 3 and Sch 2 item 6, effective 1 July 2010. No 49 of 2009, s 3 and Sch 2 item 8 contains the following application provision:
Application - amendment commencing on 1 July 2010
(1)
The amendment made by item 6 applies in relation to a variation made under subsection 28(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 before, on or after 1 July 2010 (regardless of whether the determination being varied was made before, on or after 1 July 2010).
(2)
However, subitem (1) does not affect a person's entitlement to be paid family tax benefit before that commencement.
(3)
If more than 3 variations had been made before 1 July 2010 in relation to a claimant, section 32AE of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, applies in relation to all of those variations (instead of 3 of those variations).
(4)
Subitems (1) and (3) do not apply in relation to a variation made before 1 July 2010 if each person mentioned in subparagraph 28(1)(b)(iii) of the A New Tax System (Family Assistance) (Administration) Act 1999 and required to lodge an income tax return for the cancellation income year concerned had lodged the return before 1 July 2010.
SECTION 32AEA
32AEA
Effect of this Subdivision on newborn upfront payment of family tax benefit
If this Subdivision has the effect that:
(a)
the Secretary must not make a payment of family tax benefit (worked out on an estimated income basis) to an individual during a period; or
(b)
an individual is not entitled to be paid family tax benefit (worked out on an estimated income basis) for a period;
then the individual is not entitled to be paid an amount of family tax benefit under section 58AA of the Family Assistance Act during that period.
History
S 32AEA inserted by No 14 of 2014, s 3 and Sch 12 item 86, effective 1 March 2014.
Subdivision CB - Non-entitlement to FTB on estimated income basis
History
Subdiv CB inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AF
Non-entitlement to FTB on estimated income basis-review of income during 2 consecutive income years
Scope of Subdivision
32AF(1)
This Subdivision applies in relation to an individual if:
(a)there are 2 consecutive income years (each of which is a
consecutive year
) in which there are one or more days for which the individual was entitled to be paid family tax benefit worked out on an estimated income basis; and
(b)
in respect of each consecutive year, the Secretary, under section
105, reviews the rate of family benefit the individual was entitled to be paid for those days on the basis of the individual's adjusted taxable income as finally determined in respect of the consecutive year by the Secretary; and
(c)
as a result of the review and in respect of each consecutive year, the Secretary determines either or both of the following:
(i)
the individual's Part A rate of family tax benefit is nil for those days because of the individual's adjusted taxable income, and there are no other days in either consecutive year for which the individual was entitled to be paid the Part A rate;
(ii)
the individual's Part B rate of family tax benefit is nil for those days because of subclause 28B(1) of Schedule 1 to the Family Assistance Act.
Note:
Family tax benefit may be worked out on an estimated income basis under subsection 20(1), (2A) or (3) (see definition of estimated income basis in subsection 3(1)).
[
CCH Note:
No 49 of 2012, s 3 and Sch 3 item 10 contains the following application provision:
10 Application
10(1)
Paragraph 32AF(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted by this Schedule, applies in relation to the 2009-10 income year and later income years.
(2)
Paragraph 32AF(1)(c) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted by this Schedule, applies in relation to determinations made before, on or after the commencement of this item.
]
Basic non-entitlement rule
32AF(2)
Subject to this Subdivision:
(a)
if subparagraph (1)(c)(i) applies-the individual is not entitled, on and after the exclusion day, to be paid the Part A rate of family tax benefit worked out on an estimated income basis; and
(b)
if subparagraph (1)(c)(ii) applies-the individual is not entitled, on and after the exclusion day, to be paid the Part B rate of family tax benefit worked out on an estimated income basis.
32AF(3)
For the purposes of this Subdivision, the
exclusion day
, in relation to an individual, is:
(a)
either:
(i)
if the later of the consecutive years is 2010-11-1 July 2012; or
(ii)
in any other case-1 July of the first income year after the later of the consecutive years; or
(b)
if the Secretary determines a later day in relation to the individual-the later day.
32AF(4)
A determination under paragraph (3)(b) is not a legislative instrument.
Position of individual's partner
32AF(5)
While paragraph (2)(a) applies in relation to the individual, the individual's partner (if any) is not entitled to be paid the Part A rate of family tax benefit worked out on an estimated income basis.
32AF(6)
While paragraph (2)(b) applies in relation to the individual, the individual's partner (if any) is not entitled to be paid the Part B rate of family tax benefit worked out on an estimated income basis.
Multiple applications of section
32AF(7)
Sections
32AG to
32AM do not prevent this section applying again in relation to the individual in respect of 2 consecutive income years, either or both of which are different from the 2 consecutive income years the subject of the previous application of this section.
History
S 32AF inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AG
Exception-greater than nil rate of FTB for later income year
Scope
32AG(1)
This section applies if, in respect of an income year (the
payment year
) after the later of the consecutive years, the Secretary, taking into account the individual's adjusted taxable income as finally determined in respect of the payment year by the Secretary, determines either or both of the following on a day (the
payment day
):
(a)
the individual's Part A rate of family tax benefit is greater than nil on one or more days in the payment year;
(b)
the individual's Part B rate of family tax benefit is greater than nil on one or more days in the payment year.
Payment day is in same income year as exclusion day
32AG(2)
If the payment day is in the income year in which the exclusion day occurs, then:
(a)
if this section applies in relation to the Part A rate of family tax benefit-paragraph
32AF(2)(a) is taken not to have applied in relation to the individual; and
(b)
if this section applies in relation to the Part B rate of family tax benefit-paragraph
32AF(2)(b) is taken not to have applied in relation to the individual.
Example:
Assume that under section 32AF the consecutive years are 2009-10 and 2010-11. Assume that the individual is not entitled, on and after 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.
Assume that on 1 November 2012 the Secretary determines, under subsection (1), that the individual's Part A rate and Part B rate of family tax benefit are greater than nil on one or more days in 2011-12. The payment day is 1 November 2012.
Under subsection (2), subsection 32AF(2) is taken not to have prevented the individual from being entitled, on and after 1 July 2012, to be paid family tax benefit worked out on an estimated income basis.
Payment day is in income year later than that of exclusion day
32AG(3)
If the payment day is in an income year that is later than the income year in which the exclusion day occurs, then:
(a)
if this section applies in relation to the Part A rate of family tax benefit-paragraph
32AF(2)(a) ceases to apply in relation to the individual on 1 July of the later income year; and
(b)
if this section applies in relation to the Part B rate of family tax benefit-paragraph
32AF(2)(b) ceases to apply in relation to the individual on 1 July of the later income year.
Example:
Assume that under section 32AF the consecutive years are 2009-10 and 2010-11. Assume that the individual is not entitled, on and after 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.
Assume that on 1 November 2013 the Secretary determines, under subsection (1), that the individual's Part A rate and Part B rate of family tax benefit are greater than nil on one or more days in 2011-12. The payment day is 1 November 2013.
Under subsection (3), subsection 32AF(2) ceases to prevent the individual from being entitled, on and after 1 July 2013, to be paid family tax benefit worked out on an estimated income basis.
Note:
For the meaning of
consecutive year
, see subsection 32AF(1). For the meaning of
exclusion day
, see subsection 32AF(3).
History
S 32AG inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AH
Exception-resumption of eligibility for FTB
Scope
32AH(1)
This section applies if:
(a)
the individual is not eligible for family tax benefit for the whole of an income year (the
applicable year
) that is after the later of the consecutive years (other than because of the individual's income or the individual's partner's income); and
(b)
after the applicable year, the individual makes a claim for family tax benefit in relation to the income year (the
current year
) in which the claim is made; and
(c)
the Secretary has finally determined the individual's adjusted taxable income in respect of the applicable year; and
(d)
the Secretary is satisfied that, if the Secretary were to take into account that adjusted taxable income, either or both of the following would apply in respect of one or more days in the current year:
(i)
the individual's Part A rate of family tax benefit would be greater than nil;
(ii)
the individual's Part B rate of family tax benefit would be greater than nil, or would be nil (other than because of subclause 28B(1) of Schedule 1 to the Family Assistance Act).
Exclusion day is in current year
32AH(2)
If the exclusion day is in the current year, then:
(a)
if this section applies in relation to the Part A rate of family tax benefit-paragraph
32AF(2)(a) is taken not to have applied in relation to the individual; and
(b)
if this section applies in relation to the Part B rate of family tax benefit-paragraph
32AF(2)(b) is taken not to have applied in relation to the individual.
Example:
Assume that under section 32AF the consecutive years are 2009-10 and 2010-11. Assume that the individual is not entitled, on and after 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.
Assume that the individual is not eligible for family tax benefit for the whole of 2011-12 (the applicable year). Assume that in 2012-13 (the current year) the individual makes a claim for family tax benefit for 2012-13.
Assume that the Secretary is satisfied that, if the Secretary were to take into account the individual's final adjusted taxable income for 2011-12, the individual's Part A rate and Part B rate of family tax benefit would be greater than nil on one or more days in 2012-13.
Under subsection (2), subsection 32AF(2) is taken not to have prevented the individual from being entitled, on and after 1 July 2012, to be paid family tax benefit worked out on an estimated income basis.
Current year is later than that of exclusion day
32AH(3)
If the current year is later than the income year in which the exclusion day occurs, then:
(a)
if this section applies in relation to the Part A rate of family tax benefit-paragraph
32AF(2)(a) ceases to apply in relation to the individual on 1 July of the current year; and
(b)
if this section applies in relation to the Part B rate of family tax benefit-paragraph
32AF(2)(b) ceases to apply in relation to the individual on 1 July of the current year.
Example:
Assume that under section 32AF the consecutive years are 2010-11 and 2011-12. Assume that the individual is not entitled, on and after 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.
Assume that the individual is not eligible for family tax benefit for the whole of 2012-13 (the applicable year). Assume that in 2013-14 (the current year) the individual makes a claim for family tax benefit for 2013-14.
Assume that the Secretary is satisfied that, if the Secretary were to take into account the individual's final adjusted taxable income for 2012-13, the individual's Part A rate and Part B rate of family tax benefit would be greater than nil on one or more days in 2013-14.
Under subsection (3), subsection 32AF(2) ceases to prevent the individual from being entitled, on and after 1 July 2013, to be paid family tax benefit worked out on an estimated income basis.
Note:
For the meaning of
consecutive year
, see subsection 32AF(1). For the meaning of
exclusion day
, see subsection 32AF(3).
History
S 32AH inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AI
Exception - income support payments
Scope
32AI(1)
This section applies if, on a day (the
income support day
) after the later of the consecutive years, the individual, or the individual's partner (if any), is receiving support (
income support
), in the form of a social security pension, a social security benefit, a service pension, income support supplement or a veteran payment.
History
S 32AI(1) amended by No 17 of 2018, s 3 and Sch 2 item 37, by substituting ", income support supplement or a veteran payment" for "or income support supplement", effective 1 May 2018.
Trigger day is on or before exclusion day
32AI(2)
If the trigger day is on or before the exclusion day, subsection
32AF(2) is taken not to apply to the individual.
Trigger day is after exclusion day
32AI(3)
If the trigger day is after the exclusion day, subsection
32AF(2) ceases to apply to the individual on and from the trigger day.
Trigger day for income support payments
32AI(4)
In this section:
trigger day
means the later of:
(a)
the earliest income support day; and
(b)
1 July of the income year the Secretary becomes aware that the individual, or the individual's partner, is receiving the income support.
Note:
For the meaning of
consecutive year
, see subsection 32AF(1). For the meaning of
exclusion day
, see subsection 32AF(3).
History
S 32AI inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AJ
Exception-new FTB child
Scope
32AJ(1)
This section applies if, on a day (the
FTB child day
) after the later of the consecutive years:
(a)
the individual has an FTB child; and
(b)
the child was not an FTB child of the individual at any time during the consecutive years.
Trigger day is on or before exclusion day
32AJ(2)
If the trigger day is on or before the exclusion day, subsection
32AF(2) is taken not to apply to the individual.
Trigger day is after exclusion day
32AJ(3)
the trigger day is after the exclusion day, subsection
32AF(2) ceases to apply to the individual on and from the trigger day.
Trigger day for new FTB child
32AJ(4)
In this section:
trigger day
means the later of:
(a)
the earliest FTB child day; and
(b)
1 July of the income year the Secretary becomes aware of the existence of the FTB child.
Note:
For the meaning of
consecutive year
, see subsection 32AF(1). For the meaning of
exclusion day
, see subsection 32AF(3).
History
S 32AJ inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AK
Exception-couple separates
Scope
32AK(1)
This section applies if:
(a)
at the end of the later of the consecutive years, the individual is a member of a couple; and
(b)
on any later day (a
separation day
) the individual ceases to be a member of that couple.
Note:
Paragraph (b) may apply more than once, for example if the couple separates, then reconciles, then again separates.
Trigger day is on or before exclusion day
32AK(2)
If the trigger day is on or before the exclusion day, subsection
32AF(2) is taken not to apply to the individual.
Trigger day is after exclusion day
32AK(3)
If the trigger day is after the exclusion day, subsection
32AF(2) ceases to apply to the individual on and from the trigger day.
Reconciliation of separated couple
32AK(4)
However, if on any day (the
reconciliation day
) after a separation day, the individual again becomes a member of that couple, then subsection
32AF(2) applies in relation to the individual as if the reconciliation day were the exclusion day.
Note:
This subsection may apply more than once, for example if the couple separates, then reconciles, then again separates and reconciles.
Trigger day for separation
32AK(5)
In this section:
trigger day
, in relation to a particular separation day, means the later of:
(a)
the separation day; and
(b)
1 July of the income year the Secretary becomes aware that the individual has (on that separation day) ceased to be a member of that couple.
Note:
For the meaning of
consecutive year
, see subsection 32AF(1). For the meaning of
exclusion day
, see subsection 32AF(3).
History
S 32AK inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AL
Exception-special circumstances
Scope
32AL(1)
This section applies if the Secretary is satisfied that:
(a)
on a day (the
special circumstances day
) after the later of the consecutive years, special circumstances exist in relation to the individual, the individual's partner (if any) or both; and
(b)
those circumstances did not exist at the end of the later of the consecutive years; and
(c)
those circumstances make it inappropriate to prevent the individual from being entitled to be paid the Part A rate and the Part B rate of family tax benefit worked out on an estimated income basis.
Trigger day is on or before exclusion day
32AL(2)
If the trigger day is on or before the exclusion day, the Secretary must determine that subsection
32AF(2) is taken not to apply to the individual.
Trigger day is after exclusion day
32AL(3)
If the trigger day is after the exclusion day, the Secretary must determine that subsection
32AF(2) ceases to apply to the individual on and from the trigger day.
Secretary's determinations-general
32AL(4)
A determination under subsection (2) or (3):
(a)
has effect in accordance with its terms; and
(b)
is not a legislative instrument.
Trigger day for special circumstances
32AL(5)
In this section:
trigger day
means the later of:
(a)
the special circumstances day; and
(b)
1 July of the income year the Secretary becomes aware of the existence of the special circumstances.
Note:
For the meaning of
consecutive year
, see subsection 32AF(1). For the meaning of
exclusion day
, see subsection 32AF(3).
History
S 32AL inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
SECTION 32AM
Exception-determined circumstances
Scope
32AM(2)
This section applies if the Secretary is satisfied that:
(a)
on a day (the
determined circumstances day
) after the later of the consecutive years, circumstances determined in an instrument under subsection (2) exist in relation to the individual, the individual's partner (if any) or both; and
(b)
the determined circumstances make it inappropriate to prevent the individual from being entitled to be paid the Part A rate and the Part B rate of family tax benefit worked out on an estimated income basis.
32AM(2)
The Minister may, by legislative instrument, determine circumstances for the purposes of paragraph (1)(a).
Trigger day is on or before exclusion day
32AM(3)
If the trigger day is on or before the exclusion day, the Secretary must determine that subsection
32AF(2) is taken not to apply to the individual.
Trigger day is after exclusion day
32AM(4)
If the trigger day is after the exclusion day, the Secretary must determine that subsection
32AF(2) ceases to apply to the individual on and from the trigger day.
Secretary's determinations-general
32AM(5)
A determination under subsection (3) or (4):
(a)
has effect in accordance with its terms; and
(b)
is not a legislative instrument.
Trigger day for determined circumstances
32AM(6)
In this section:
trigger day
means the later of:
(a)
the determined circumstances day; and
(b)
1 July of the income year the Secretary becomes aware of the existence of the determined circumstances.
Note:
For the meaning of
consecutive year
, see subsection 32AF(1). For the meaning of
exclusion day
, see subsection 32AF(3).
History
S 32AM inserted by No 49 of 2012, s 3 and Sch 3 item 8, effective 1 July 2012.
Subdivision D - FTB reconciliation conditions
History
Subdiv D inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32A
FTB Part A supplement and FTB Part B supplement to be disregarded unless and until individual has satisfied the FTB reconciliation conditions
32A(1)
This section applies to a decision of the Secretary to make or vary a section
16 or
17 determination if, as a result of the decision, an individual (the
first individual
) is entitled to be paid family tax benefit at a particular rate in respect of a period (the
same-rate benefit period
) that consists of, or is included in, a particular income year (the
relevant income year
).
32A(2)
In making or varying the determination, the Secretary must disregard the following provisions:
(a)
paragraph (ca) of step 1 of the method statement in clause 3 of Schedule 1 to the Family Assistance Act;
(b)
paragraph (d) of step 1 of the method statement in clause 25 of Schedule
1 to the Family Assistance Act;
(ba)
paragraph 29(1)(b) of Schedule
1 to the Family Assistance Act;
(bb)
paragraph (b) of step 1 of the method statement in subclause 29(2) of Schedule
1 to the Family Assistance Act;
(bba)
paragraph 29A(2)(b) of Schedule 1 to the Family Assistance Act;
(bc)
subclause 31A(1) of Schedule
1 to the Family Assistance Act;
(c)
subclause 38A(1) of Schedule
1 to the Family Assistance Act;
unless and until:
(d)
if the same-rate benefit period to which the decision relates is the only same-rate benefit period for the first individual for the relevant income year - the first individual has satisfied the FTB reconciliation conditions for the same-rate benefit period; or
(e)
if the same-rate benefit period to which the decision relates is one of 2 or more same-rate benefit periods for the first individual for the relevant income year - the first individual has satisfied the FTB reconciliation conditions for each of those same-rate benefit periods.
Note 1:
If those provisions are disregarded, they will be taken into account when the determination or variation is reviewed under section 105 - see section 105A.
Note 2:
To work out when the first individual has satisfied the FTB reconciliation conditions, see section 32B.
History
S 32A(2) amended by No 61 of 2005, s 3 and Sch 1 item 10, by inserting para (bba), applicable in respect of the 2005-2006 income year and later income years.
S 32A(2) amended by No 29 of 2004, s 3 and Sch 1 item 8, by inserting paras (ba), (bb) and (bc), applicable in relation to FTB Part B supplement included, on or after 1 January 2005, in family tax benefit for the 2004-2005 income year or a later income year.
S 32A inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
32A(3)
Subsection (2) does not apply for the purposes of working out the amount of a clean energy advance.
History
S 32A(3) substituted by No 122 of 2014, s 3 and Sch 1 item 189, effective 20 September 2014. S 32A(3) formerly read:
32A(3)
Subsection (2) does not apply for the purposes of working out the following:
(a)
the amount of a clean energy advance;
(b)
the amount of the clean energy supplement (Part A) under Subdivision A or B of Division 2AA of Part 5 of Schedule 1 to the Family Assistance Act;
(c)
the amount of the clean energy supplement (Part B) under Division 2B of Part 4 of that Schedule.
S 32A(3) inserted by No 141 of 2011, s 3 and Sch 2 item 47, effective 14 May 2012.
SECTION 32B
32B
When FTB reconciliation conditions are satisfied
For the purposes of this Act, the first individual satisfies the FTB reconciliation conditions for a same-rate benefit period:
(a)
if only one of sections 32C to 32Q applies to the first individual for the same-rate benefit period - at the relevant reconciliation time; or
(b)
if 2 or more of sections 32C to 32Q apply to the first individual for the same-rate benefit period - at whichever of the relevant reconciliation times is the latest.
History
S 32B inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32C
Relevant reconciliation time - first individual must lodge tax return
32C(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual is or was required to lodge an income tax return for the relevant income year; and
(b)
clause
38L of Schedule
1 to the
Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.
32C(2)
Disregard paragraph (1)(b) if the first individual was a member of a couple at any time during the same-rate benefit period.
32C(3)
The relevant reconciliation time is the time when an assessment is made under the
Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of:
(a)
the first income year after the relevant income year; or
(b)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.
32C(4)
The further period under paragraph (3)(b) must end no later than the end of the second income year after the relevant income year.
History
S 32C substituted by No 14 of 2014, s 3 and Sch 12 item 16, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year. S 32C formerly read:
SECTION 32C Relevant reconciliation time - member of a couple, income tax return lodged within 2 years
32C(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was a member of a couple throughout the same-rate benefit period; and
(b)
the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and
(c)
the first individual continues to be a member of the couple until the end of the latest of the following:
(i)
the first income year after the relevant income year;
(ii)
such further period (if any) as the Secretary allows for the first individual to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year;
(iii)
such further period (if any) as the Secretary allows for the other member of the couple to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the other member from lodging the return before the end of that first income year.
History
S 32C(1) amended by No 70 of 2013, s 3 and Sch 2B item 22, by substituting paras (a), (b) and (c) for paras (a)and (b), applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. Paras (a) and (b) formerly read:
(a)
both:
(i)
the first individual was a member of a couple throughout the same-rate benefit period; and
(ii)
the first individual continues to be a member of the couple until the end of the second income year following the relevant income year; and
(b)
the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year.
32C(2)
If only one member of the couple was required to lodge an income tax return for the relevant income year, the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the member's taxable income for the relevant income year, so long as the member's income tax return for the relevant income year was lodged before the end of:
(a)
the first income year after the relevant income year; or
(b)
such further period as the Secretary allows for that member under subparagraph (1)(c)(ii) or (iii), as the case requires.
History
S 32C(2) substituted by No 70 of 2013, s 3 and Sch 2B item 23, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. S 32C(2) formerly read:
32C(2)
If only one member of the couple was required to lodge an income tax return for the relevant income year, the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the member's taxable income for the relevant income year, so long as the member's income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.
32C(3)
If:
(a)
both members of the couple were required to lodge an income tax return for the relevant income year; and
(b)
each member of the couple lodged an income tax return for the relevant income year before the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period as the Secretary allows for that member under subparagraph (1)(c)(ii) or (iii), as the case requires;
the relevant reconciliation time is whichever is the later of the following:
(c)
the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year;
(d)
the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member's taxable income for the relevant income year.
History
S 32C(3) amended by No 70 of 2013, s 3 and Sch 2B item 24, by substituting para (b), applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. Para (b) formerly read:
(b)
both members of the couple lodged an income tax return for the relevant income year before the end of the second income year following the relevant income year;
32C(4)
The further period under subparagraph (1)(c)(ii) or (iii) must end no later than the end of the second income year after the relevant income year.
History
S 32C(4) inserted by No 70 of 2013, s 3 and Sch 2B item 25, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
Former s 32C inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32D
Relevant reconciliation time - no separation of couple and partner must lodge tax return
32D(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was a member of a couple throughout that period; and
(b)
the other member of the couple (the
partner
) is or was required to lodge an income tax return for the relevant income year; and
(c)
the first individual continues to be a member of the couple until the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the partner from lodging the return before the end of that first income year.
32D(2)
The relevant reconciliation time is the time when an assessment is made under the
Income Tax Assessment Act 1936 of the partner's taxable income for the relevant income year, so long as the partner's income tax return for the relevant income year was lodged before the end of:
(a)
the first income year after the relevant income year; or
(b)
such further period (if any) as the Secretary allows under subparagraph (1)(c)(ii).
32D(3)
The further period under subparagraph (1)(c)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 32D substituted by No 14 of 2014, s 3 and Sch 12 item 16, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year. S 32D formerly read:
SECTION 32D Relevant reconciliation time - individual not member of a couple, income tax return lodged within 2 years
32D(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was not a member of a couple at any time during the same-rate benefit period; and
(b)
the first individual is or was required to lodge an income tax return for the relevant income year; and
(c)
clause 38L of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.
History
S 32D(1) amended by No 146 of 2006, s 3 and Sch 8, by substituting "clause 38L" for "clause 17" in para (c), effective 1 July 2008.
32D(2)
The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of:
(a)
the first income year after the relevant income year; or
(b)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.
History
S 32D(2) substituted by No 70 of 2013, s 3 and Sch 2B item 26, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. S 32D(2) formerly read:
32D(2)
The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.
32D(3)
The further period referred to in paragraph (2)(b) must end no later than the end of the second income year after the relevant income year.
History
S 32D(3) inserted by No 70 of 2013, s 3 and Sch 2B item 27, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
Former s 32D inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32E
Relevant reconciliation time - couple separates during next income year and partner must lodge tax return
32E(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was a member of a couple throughout that period; and
(b)
the other member of the couple (the
partner
) is or was required to lodge an income tax return for the relevant income year; and
(c)
the first individual ceased to be a member of the couple during the first income year after the relevant income year.
32E(2)
The relevant reconciliation time is:
(a)
if the partner lodged the return before the end of the first income year after the relevant income year - when an assessment is made under the
Income Tax Assessment Act 1936 of the partner's taxable income for the relevant income year; or
(b)
otherwise - the end of the first income year after the relevant income year.
History
S 32E substituted by No 14 of 2014, s 3 and Sch 12 item 16, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year. S 32E formerly read:
SECTION 32E Relevant reconciliation time - couple separates before the end of the relevant income year, individual lodges income tax return
32E(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was a member of a couple throughout the same-rate benefit period; and
(b)
the first individual is not a member of the couple just before the end of the relevant income year; and
(c)
the first individual is or was required to lodge an income tax return for the relevant income year.
32E(2)
The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of:
(a)
the first income year after the relevant income year; or
(b)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.
History
S 32E(2) substituted by No 70 of 2013, s 3 and Sch 2B item 28, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. S 32E(2) formerly read:
32E(2)
The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.
32E(3)
The further period referred to in paragraph (2)(b) must end no later than the end of the second income year after the relevant income year.
History
S 32E(3) inserted by No 70 of 2013, s 3 and Sch 2B item 29, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
Former s 32E inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32F
Relevant reconciliation time - couple separates after end of next income year and partner must lodge tax return
32F(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was a member of a couple throughout that period; and
(b)
the other member of the couple (the
partner
) is or was required to lodge an income tax return for the relevant income year; and
(c)
the partner did not lodge the return before the end of the first income year after the relevant income year; and
(d)
the Secretary allowed a further period for the partner to lodge the return because the Secretary was satisfied that there were special circumstances that prevented the partner from lodging the return before the end of that first income year; and
(e)
the first individual ceased to be a member of the couple during the period beginning at the start of the second income year after the relevant income year and ending at the end of that further period allowed by the Secretary.
32F(2)
The relevant reconciliation time is:
(a)
if the partner lodged the return while the first individual and the partner were members of the same couple - when an assessment is made under the
Income Tax Assessment Act 1936 of the partner's taxable income for the relevant income year; or
(b)
otherwise - when the first individual ceased to be a member of the couple.
32F(3)
The further period under paragraph (1)(d) must end no later than the end of the second income year after the relevant income year.
History
S 32F substituted by No 14 of 2014, s 3 and Sch 12 item 16, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year. S 32F formerly read:
SECTION 32F Relevant reconciliation time - couple separates after the end of the relevant income year, at least one member of the couple lodges income tax return
32F(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the firstindividual was a member of a couple throughout the same-rate benefit period; and
(b)
the first individual ceased to be a member of the couple during the period:
(i)
beginning at the start of the next income year; and
(ii)
ending at the end of the designated date in the next income year; and
(c)
the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and
(d)
at least one of the members of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year.
32F(2)
If both members of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year, the relevant reconciliation time is whichever is the later of the following:
(a)
the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year;
(b)
the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member's taxable income for the relevant income year.
32F(3)
If:
(a)
the first individual lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and
(b)
the other member of the couple was not required to lodge an income tax return for the relevant income year;
the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year.
32F(4)
If:
(a)
the first individual lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and
(b)
the other member of the couple is or was required to lodge an income tax return for the relevant income year, but did not lodge an income tax return for the relevant income year before the end of the designated date in the next income year;
the relevant reconciliation time is whichever is the later of the following:
(c)
the end of the designated date in the next income year;
(d)
the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year.
History
S 32F(4) amended by No 70 of 2013, s 3 and Sch 2B item 30, by substituting "is whichever is the later of the following: (c) the end of the designated date in the next income year; (d) the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year." for all the words after "relevant reconciliation time", applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. The words after "relevant reconciliation time" formerly read:
is the end of the designated date in the next income year.
32F(5)
If:
(a)
the other member of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and
(b)
the first individual was not required to lodge an income tax return for the relevant income year;
the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member's taxable income for the relevant income year.
32F(6)
If:
(a)
the other member of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and
(b)
the first individual is or was required to lodge an income tax return for the relevant income year, but did not lodge an income tax return for the relevant income year before the end of the designated date in the next income year;
the relevant reconciliation time is whichever is the later of the following:
(c)
the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member's taxable income for the relevant income year;
(d)
the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of such further period (if any) as the Secretary allows.
Note:
For
designated date
, see section 32R.
History
S 32F(6) substituted by No 70 of 2013, s 3 and Sch 2B item 31, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. S 32F(6) formerly read:
32F(6)
If:
(a)
the other member of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and
(b)
the first individual is or was required to lodge an income tax return for the relevant income year, but did not lodge an income tax return for the relevant income year before the end of the designated date in the next income year;
the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.
Note:
For
designated date
, see section 32R.
32F(7)
The Secretary must not allow a further period under paragraph (6)(d) unless the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that next income year.
History
S 32F(7) inserted by No 70 of 2013, s 3 and Sch 2B item 31, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
32F(8)
The further period referred to in paragraph (6)(d) must end no later than the end of the second income year after the relevant income year.
History
S 32F(8) inserted by No 70 of 2013, s 3 and Sch 2B item 31, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
Former s 32F inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32G
32G
Relevant reconciliation time - couple separates after the end of the relevant income year, neither have lodged a tax return by the end of the designated date
(Repealed by No 14 of 2014)
History
S 32G repealed by No 14 of 2014, s 3 and Sch 12 item 16, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year. S 32G formerly read:
SECTION 32G Relevant reconciliation time - couple separates after the end of the relevant income year, neither have lodged a tax return by the end of the designated date
32G(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was a member of a couple throughout the same-rate benefit period; and
(b)
the first individual ceased to be a member of the couple during the period:
(i)
beginning at the start of the next income year; and
(ii)
ending at the end of the designated date in the next income year; and
(c)
the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and
(d)
neither the first individual, nor the other member of the couple, have lodged an income tax return for the relevant income year at a time before the end of the designated date in the next income year; and
(e)
if the first individual is or was required to lodge an income tax return - the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that next income year.
History
S 32G(1) amended by No 70 of 2013, s 3 and Sch 2B item 32, by inserting para (e), applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
32G(2)
If the first individual is or was required to lodge an income tax return, the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of such further period as the Secretary allows.
History
S 32G(2) substituted by No 70 of 2013, s 3 and Sch 2B item 33, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that isthe 2012-13 income year or a later income year. S 32G(2) formerly read:
32G(2)
The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.
Note:
For
designated date
, see section 32R.
32G(3)
If the first individual is not or was not required to lodge an income tax return, the relevant reconciliation time is the end of the designated date in the next income year.
Note:
For designated date, see section 32R.
History
S 32G(3) inserted by No 70 of 2013, s 3 and Sch 2B item 33, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
32G(4)
The further period referred to in subsection (2) must end no later than the end of the second income year after the relevant income year.
History
S 32G(4) inserted by No 70 of 2013, s 3 and Sch 2B item 33, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
Former s 32G inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32H
32H
Relevant reconciliation time - couple separates after the end of the designated date
(Repealed by No 14 of 2014)
History
S 32H repealed by No 14 of 2014, s 3 and Sch 12 item 16, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year. S 32H formerly read:
SECTION 32H Relevant reconciliation time - couple separates after the end of the designated date
32H(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was a member of a couple throughout the same-rate benefit period; and
(b)
the first individual is or was required to lodge an income tax return for the relevant income year; and
(c)the first individual ceases to be a member of the couple during the period:
(i)
beginning just after the designated date in the next income year; and
(ii)
ending at the end of such further period as the Secretary allows for the first individual to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that next income year.
History
S 32H(1) amended by No 70 of 2013, s 3 and Sch 2B item 34, by substituting paras (a), (b) and (c), applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. Paras (a), (b) and (c) formerly read:
(a)
the first individual was a member of a couple throughout the same-rate benefit period; and
(b)
the first individual ceased to be a member of the couple during the period:
(i)
beginning just after the designated date in the next income year; and
(ii)
ending at the end of the second income year after the relevant income year; and
(c)
the first individual is or was required to lodge an income tax return for the relevant income year.
32H(2)
The further period referred to in subparagraph (1)(c)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 32H(2) substituted by No 70 of 2013, s 3 and Sch 2B item 35, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. S 32H(2) formerly read:
32H(2)
If the first individual ceased to be a member of the couple before the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, the relevant reconciliation time is the time when the assessment is made, so long as the first individual's income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.
32H(2A)
If the first individual ceased to be a member of the couple before the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, the relevant reconciliation time is the time when the assessment is made, so long as the first individual's income tax return for the relevant income year was lodged before the end of such further period as the Secretary allows.
History
S 32H(2A) inserted by No 70 of 2013, s 3 and Sch 2B item 35, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.
32H(3)
If the first individual ceased to be a member of the couple after the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, the relevant reconciliation time is the time when the first individual ceased to be a member of the couple.
Note:
For
designated date
, see section 32R.
Former s 32H inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32J
Relevant reconciliation time - individual not required to lodge an income tax return
32J(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual; or
(b)
any other individual whose adjusted taxable income is relevant in working out the first individual's entitlement to, or rate of, family tax benefit for the same-rate benefit period;
is not required to lodge an income tax return for the relevant income year.
History
S 32J(1) amended by No 14 of 2014, s 3 and Sch 3 item 32, by omitting "(other than an FTB child, or regular care child, of the first individual)" from para (b), applicable on and after that commencement in relation to a same-rate benefit period to the extent that it occurs before 1 May 2014.
S 32J(1) amended by No 146 of 2006, s 3 and Sch 8 item 101, by inserting ", or regular care child," after "FTB child" in para (b), effective 1 July 2008.
32J(2)
The relevant reconciliation time is whichever is the earlier of the following times:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual's adjusted taxable income for the relevant income year, so long as that notification occurs before the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from making that notification before the end of that first income year;
(b)
the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual's adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.
History
S 32J(2) amended by No 46 of 2016, s 3 and Sch 2 items 4 and 5, by substituting para (a) and inserting ", so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year" in para (b), applicable in relation to a decision referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 made before, on or after 6 May 2016, where the same-rate benefit period consists of, or is included in, the income year in which this Schedule commences or in a later income year. Para (a) formerly read:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual's adjusted taxable income for the relevant income year;
32J(3)
The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 32J(3) inserted by No 46 of 2016, s 3 and Sch 2 item 6, applicable in relation to a decision referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 made before, on or after 6 May 2016, where the same-rate benefit period consists of, or is included in, the income year in which this Schedule commences or in a later income year.
History
S 32J inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32K
32K
Relevant reconciliation time - child aged 5 or more and less than 16
(Repealed by No 14 of 2014)
History
S 32K repealed by No 14 of 2014, s 3 and Sch 3 item 33, applicable on and after that commencement in relation to a same-rate benefit period to the extent that it occurs before 1 May 2014. S 32K formerly read:
SECTION 32K Relevant reconciliation time - child aged 5 or more and less than 16
32K(1)
This section applies to the first individual for a same-rate benefit period if the following conditions are satisfied in relation to another individual:
(a)
the other individual is aged 5 or more and less than 16;
(b)
none of the following subparagraphs applies:
(i)
the other individual is undertaking full-time study;
(ii)
the other individual is studying overseas full-time;
(iii)
the other individual is undertaking primary education;
(c)
before the end of the relevant income year, the first individual gives the Secretary an estimate of the other individual's adjusted taxable income for the relevant income year;
(d)
assuming that the other individual had adjusted taxable income for the relevant income year that is less than the cut-out amount (as defined by subsection 22A(2) of the Family Assistance Act), the other individual would be an FTB child, or a regular care child who is also a rent assistance child, of the first individual.
History
S 32K(1) amended by No 34 of 2011, s 3 and Sch 5 item 16, by substituting para (b), applicable in relation to working out an individual's or approved care organisation's entitlement (if any) to family tax benefit in respect of days occurring on or after 26 May 2011. Para (b) formerly read:
(b)
the other individual is not undertaking full-time study or primary education;
S 32K(1) amended by No 146 of 2006, s 3 and Sch 8 item 102, by inserting ", or a regular care child who is also a rent assistance child," after "FTB child" in para (d), effective 1 July 2008.
32K(2)
The relevant reconciliation time is whichever is the earlier of the following times:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the other individual's adjusted taxable income for the relevant income year;
(b)
the time after the end of the relevant income year when the Secretary becomes satisfied that the amount of the other individual's adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual.
32K(3)
For the purposes of this section, the question whether the other individual is undertaking primary education is to be determined in the same way as that question is determined under section 22A of the Family Assistance Act.
S 32K inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32L
32L
Relevant reconciliation time - child aged 16 or more
(Repealed by No 14 of 2014)
History
S 32L repealed by No 14 of 2014, s 3 and Sch 3 item 33, applicable on and after that commencement in relation to a same-rate benefit period to the extent that it occurs before 1 May 2014. S 32L formerly read:
SECTION 32L Relevant reconciliation time - child aged 16 or more
32L(1)
This section applies to the first individual for a same-rate benefit period if the following conditions are satisfied in relation to another individual:
(a)
the other individual is aged 16 or more;
(aa)
the other individual is not a senior secondary school child;
(b)
before the end of the relevant income year, the first individual gives the Secretary an estimate of the other individual's adjusted taxable income for the relevant income year;
(c)
assuming that the other individual had adjusted taxable income for the relevant income year that is less than the cut-out amount (as defined by subsection 22A(2) of the Family Assistance Act), the other individual would be an FTB child of the first individual.
History
S 32L(1) amended by No 50 of 2011, s 3 and Sch 2 item 13, by inserting para (aa), applicable in relation to same rate benefit periods beginning on or after 1 January 2012.
32L(2)
The relevant reconciliation time is whichever is the earlier of the following times:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the other individual's adjusted taxable income for the relevant income year;
(b)
the time after the end of the relevant income year when the Secretary becomes satisfied that the amount of the other individual's adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual.
S 32L inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32M
Relevant reconciliation time - target foreign income, tax free pension/benefit or child maintenance expenditure
32M(1)
This section applies to the first individual for a same-rate benefit period if any of the following were taken into account in working out the first individual's adjusted taxable income for the relevant income year:
(a)
the first individual's target foreign income for the relevant income year (as defined by clause 5 of Schedule
3 to the Family Assistance Act);
(b)
the first individual's tax free pension or benefit for the relevant income year (as defined by clause 7 of Schedule
3 to the Family Assistance Act);
(c)
the first individual's child maintenance expenditure for the relevant income year (as defined by clause 8 of Schedule
3 to the Family Assistance Act);
(d)
another individual's target foreign income for the relevant income year (as defined by clause 5 of Schedule
3 to the Family Assistance Act);
(e)
another individual's tax free pension or benefit for the relevant income year (as defined by clause 7 of Schedule
3 to the Family Assistance Act);
(f)
another individual's child maintenance expenditure for the relevant income year (as defined by clause 8 of Schedule
3 to the Family Assistance Act);
32M(2)
The relevant reconciliation time is whichever is the earlier of the following times:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual's adjusted taxable income for the relevant income year, so long as that notification occurs before the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from making that notification before the end of that first income year;
(b)
the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual's adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.
History
S 32M(2) amended by No 46 of 2016, s 3 and Sch 2 items 7 and 8, by substituting para (a) and inserting ", so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year" in para (b), applicable in relation to a decision referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 made before, on or after 6 May 2016, where the same-rate benefit period consists of, or is included in, the income year in which this Schedule commences or in a later income year. Para (a) formerly read:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual's adjusted taxable income for the relevant income year;
32M(3)
The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 32M(3) inserted by No 46 of 2016, s 3 and Sch 2 item 9, applicable in relation to a decision referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 made before, on or after 6 May 2016, where the same-rate benefit period consists of, or is included in, the income year in which this Schedule commences or in a later income year.
History
S 32M inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32N
Relevant reconciliation time - individual has maintenance income
32N(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual has an annualised amount of maintenance income (as defined by Division
5 of Part
2 of Schedule
1 to the Family Assistance Act) for the relevant income year; and
(b)
clause 19B of Schedule
1 to the Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.
32N(2)
The relevant reconciliation time is whichever is the earlier of the following times:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of information that is sufficient to work out the first individual's annualised amount of maintenance income for the relevant income year, so long as that notification occurs before the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from making that notification before the end of that first income year;
(b)
the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual's annualised amount of maintenance income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.
History
S 32N(2) amended by No 46 of 2016, s 3 and Sch 2 items 10 and 11, by substituting para (a) and inserting ", so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year" in para (b), applicable in relation to a decision referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 made before, on or after 6 May 2016, where the same-rate benefit period consists of, or is included in, the income year in which this Schedule commences or in a later income year. Para (a) formerly read:
(a)
the time after the end of the relevant income year when the first individual notifies the Secretary of information that is sufficient to work out the first individual's annualised amount of maintenance income for the relevant income year;
32N(3)
The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 32N(3) inserted by No 46 of 2016, s 3 and Sch 2 item 12, applicable in relation to a decision referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 made before, on or after 6 May 2016, where the same-rate benefit period consists of, or is included in, the income year in which this Schedule commences or in a later income year.
History
S 32N inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32P
Relevant reconciliation time - individual not member of a couple, no maintenance income etc.
32P(1)
This section applies to the first individual for a same-rate benefit period if:
(a)
the first individual was not a member of a couple at any time during the same-rate benefit period; and
(b)
clause 38L of Schedule
1 to the Family Assistance Act applied to the first individual throughout the same-rate benefit period; and
(c)
either:
(i)
the first individual did not have an annualised amount of maintenance income (as defined by Division 5 of Part 2 of Schedule 1 to the Family Assistance Act) for the relevant income year; or
(ii)
clause 19B of Schedule 1 to the Family Assistance Act applied to the first individual throughout the same-rate benefit period.
(d)
(Repealed by No 14 of 2014)
History
S 32P(1) amended by No 14 of 2014, s 3 and Sch 3 items 34 and 35, by substituting "period." for "period; and" in para (c)(ii) and by repealing para (d), applicable on and after that commencement in relation to a same-rate benefit period to the extent that it occurs before 1 May 2014. Para (d) formerly read:
(d)
the first individual does not have an FTB child, or a regular care child who is also a rent assistance child, whose adjusted taxable income is relevant in working out the first individual's entitlement to, or rate of, family tax benefit for the same-rate benefit period.
S 32P(1) amended by No 146 of 2006, s 3 and Sch 8 items 103 and 104, by substituting "clause 38L" for "clause 17" in para (b) and inserting ", or a regular care child who is also a rent assistance child," after "FTB child" in para (d), effective 1 July 2008.
32P(2)
The relevant reconciliation time is the end of the relevant income year.
History
S 32P inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32Q
32Q
Relevant reconciliation time - individual covered by determination made by the Secretary
The Secretary may, by legislative instrument, determine that:
(a)
this section applies to a specified class of individuals for a same-rate benefit period in specified circumstances; and
(b)
the relevant reconciliation time applicable to that class for the same-rate benefit period is the time ascertained in accordance with the determination.
History
S 32Q(1) amended by No 108 of 2006, s 3 and Sch 8 item 40, by substituting "The Secretary may, by legislative instrument" for "(1) The Secretary may, by writing", effective 27 September 2006.
32Q(2)
(Repealed by No 108 of 2006)
History
S 32Q(2) repealed by No 108 of 2006, s 3 and Sch 8 item 41, effective 27 September 2006. S 32Q(2) formerly read:
32Q(2)
A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
S 32Q inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 32R
32R
Designated date
(Repealed by No 14 of 2014)
History
Former s 32R substituted by No 70 of 2013, s 3 and Sch 2B item 36, applicable in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year. S 32R formerly read:
SECTION 32R Designated date
32R(1)
The Secretary may, by legislative instrument, determine that a specified date is the
designated date
for the purposes of this Subdivision.
History
S 32R(1) amended by No 108 of 2006, s 3 and Sch 8 item 42, by substituting "by legislative instrument" for "by writing", effective 27 September 2006.
32R(2)
(Repealed by No 108 of 2006)
History
S 32R(2) repealed by No 108 of 2006, s 3 and Sch 8 item 43, effective 27 September 2006. S 32R(2) formerly read:
32R(2)
A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
32R(3)
In subsection (1):
date
means a date that recurs each income year.
Former s 32R inserted by No 59 of 2004, s 3 and Sch 1 item 9, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
Division 2 - Payment of family tax benefit advances
History
Div 2 substituted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. No 53 of 2011, s 3 and Sch 1 item 20 contains the following transitional provision:
20 Transitional advance payment
(1)
This item applies if:
(a)
an individual was paid a family tax benefit advance for the individual's family tax benefit advance period that ended on 30 June 2011; and
(b)
under paragraph 33(3)(b) of the Family Assistance Administration Act as in effect immediately before 1 July 2011, the request for the advance operated for a particular standard advance period and all subsequent standard advance periods; and
(c)
the individual had not withdrawn the request before 30 June 2011; and
(d)
under clause 5 or 25A of Schedule 1 to the Family Assistance Act as in effect immediately before 1 July 2011, the individual's Part A rate was reduced for the period by the FTB advance rate.
(2)
On 1 July 2011, the individual is taken to have made an effective request for a single family tax benefit advance under section 34 of the Family Assistance Administration Act as inserted.
(3)
The individual's advance assessment day is taken to be 1 July 2011.
(4)
The amount of the family tax benefit advance is the smallest of the following amounts:
(a)
$333.06;
(b)
the maximum amount of advance payable to the individual on the advance assessment day worked out under section 35D of the Family Assistance Administration Act as inserted;
(c)
the amount determined by the Secretary under subsection 35C(3) of the Family Assistance Administration Act as inserted.
(5)
Clauses 47 and 49 of Schedule 1 to the Family Assistance Act as inserted do not apply to the advance.
Div 2 formerly read:
Division 2-Payment of family tax benefit advances
SECTION 33 Determination of entitlement to family tax benefit advance
33(1)
The Secretary must determine that an individual is entitled to be paid a family tax benefit advance for a standard advance period if:
(a)
on the advance assessment day, the individual is entitled to be paid family tax benefit by instalment; and
(aa)
on that day, the individual's Part A rate is equal to or exceeds the amount that would, under clause 26 of Schedule 1 to the Family Assistance Act, be the FTB child rate for an FTB child who had not turned 18 if:
(i)
the individual's Part A rate were required to be worked out using Part 3 of that Schedule; and
(ii)
clause 27 of that Schedule did not apply; and
(ab)
the individual has at least one FTB child; and
(b)
the individual has made a request to the Secretary for the payment of a family tax benefit advance for that period; and
(c)
the request is made before the end of that period; and
(d)
the individual is not an individual to whom subsection (1A) applies.
History
S 33(1) amended by No 146 of 2006, s 3 and Sch 8 item 105, by inserting para (ab) after para (aa), effective 1 July 2008.
S 33(1) amended by No 30 of 2003, s 3 and Sch 2 item 83, by substituting para (a) and (aa) for para (a), effective 1 July 2000. Para (a) formerly read:
(a)
on the advance assessment day (see subsection (2)):
(i)
the individual is entitled to be paid family tax benefit by instalment; and
(ii)
(Repealed by No 45 of 2000)
(iii)
the individual's Part A rate is equal to or exceeds twice the individual's FTB advance rate; and
S 33(1) amended by No 45 of 2000, s 3 Sch 2 items 45 and 46, by repealing para (a)(ii) and inserting para (d), effective 1 July 2000. For transitional provisions see note under s 7A. Para (a)(ii) formerly read:
(ii)
the individual's Part A rate is worked out using Part 2 of Schedule 1 to the Family Assistance Act; and
33(1A)
This subsection applies to an individual who, on the advance assessment day, owes a debt to the Commonwealth (whether arising under this Act or not) that is:
(a)
recoverable under Part 4 by means of deductions from the individual's instalments of family tax benefit under section 84; or
(b)
being recovered by deductions from the individual's instalments of family tax benefit under section 227.
History
S 33(1A) substituted by No 61 of 2005, s 3 and Sch 3 item 10, effective 1 January 2006. S 33(1A) formerly read:
33(1A)
This subsection applies to an individual who, on the advance assessment day, owes a debt to the Commonwealth (whether arising under this Act or not) that is recoverable under Part 4 by means of deductions from the individual's instalments of family tax benefit under section 84.
S 33(1A) inserted by No 45 of 2000, s 3 Sch 2 item 47, effective 1 July 2000. For transitional provisions see note under s 7A.
33(2)
Subject to subsection (2A), an individual's
advance assessment day
for a standard advance period is:
(a)
if paragraph (b) does not apply-the first day in the standard advance period; or
(b)
the day on which the individual becomes entitled to be paid family tax benefit by instalment if:
(i)
the individual is not entitled to be paid family tax benefit by instalment on the first day in the standard advance period; and
(ii)
the individual becomes entitled to be paid family tax benefit by instalment during the standard advance period; and
(iii)
the individual becomes so entitled because of the birth of a child.
History
S 33(2) amended by No 61 of 2005, s 3 and Sch 3 item 11, by substituting "Subject to subsection (2A), an individual's" for "An individual's", effective 26 June 2005.
33(2A)
If an individual's request to the Secretary for the payment of a family tax benefit advance for a standard advance period is made after the start of that period, the individual's advance assessment day for that period is the day on which the individual made the request.
History
S 33(2A) inserted by No 61 of 2005, s 3 and Sch 3 item 12, effective 26 June 2005.
33(3)
An individual's request may operate:
(a)
for a particular standard advance period; or
(b)
for a particular standard advance period and all subsequent standard advance periods.
33(4)
If paragraph (3)(b) applies to an individual's request, the individual may withdraw the request at any time for standard advance periods for which the individual has not been paid a family tax benefit advance.
33(5)
An individual cannot become entitled to be paid more than one family tax benefit advance for a standard advance period.
SECTION 34 Amount of family tax benefit advance
34(1)
The amount of the family tax benefit advance is worked out using the formula:
Number of days × |
FTB advance rate
365 |
|
where:
number of days
means the number of days in the individual's family tax benefit advance period.
34(2)
Subject to subsections (3), (4) and (5), an individual's
family tax benefit advance period
is the standard advance period.
34(3)
If:
(a)
an individual makes a request under section 33; and
(b)
it is not practicable on the first day in the standard advance period to adjust the individual's payments of family tax benefit to take account of the family tax benefit advance that will result from the request;
the individual's family tax benefit advance period starts at the beginning of the first instalment period for which it is practicable to adjust the individual's payment of family tax benefit to take account of the family tax benefit advance.
34(4)
The Secretary may determine that an individual's family tax benefit advance period is to end on a particular day that is earlier than the end of the standard advance period if the Secretary is satisfied that it is appropriate for the period to end on that day having regard to:
(a)
circumstances affecting the individual's eligibility for family tax benefit; and
(b)
circumstances affecting the rate of the family tax benefit that the individual is entitled to be paid.
34(5)
If a determination is made under subsection (4), the individual's family tax benefit advance period ends on the day determined by the Secretary.
SECTION 35 Payment of family tax benefit advance
35(1)
If an individual is entitled to be paid a family tax benefit advance, the Secretary must, at such time and in such manner as the Secretary considers appropriate, pay the individual the advance.
35(2)
This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
History
S 35 substituted by No 95 of 2002, s 3 Sch 2 item 5, effective 1 July 2003. S 35 formerly read:
SECTION 35 Payment of family tax benefit advance
35
Subject to Part 4 (Overpayments and debt recovery) and sections 225 and 226 (which deal with tax debts), if an individual is entitled to be paid a family tax benefit advance, the Secretary must, at such time and in such manner as the Secretary considers appropriate, pay the individual the advance.
S 35 amended by No 45 of 2000, s 3 Sch 2 item 48, by substituting "and 226 (which deal with tax debts)" for "to 228 (which deal with other debts etc)", effective 1 July 2000. For transitional provisions see note under s 7A.
Subdivision A - Request for family tax benefit advance
History
Subdiv A inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
SECTION 33
Request
33(1)
An individual may request a family tax benefit advance.
33(2)
If an individual makes a request for a family tax benefit advance (the
first advance
) accompanied by a request under section
35B (regular family tax benefit advances), the individual may also request that entitlement to the first advance be determined on a specified future day.
History
S 33 substituted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision and former reading of s 33, see note under Pt 3 Div 2 heading.
No 53 of 2011, s 3 and Sch 1 item 19 also contains the following transitional provision:
19 Transitional - request for determination on a future day
19
A request under subsection 33(2) of the Family Assistance Administration Act (as inserted) for a family tax benefit advance to be determined on a specified future day may only be made on or after 1 January 2012.
SECTION 34
Form of request
34(1)
To be effective a request:
(a)
must be made in a form and manner, contain any information, and be accompanied by any documents required by the Secretary; and
(b)
must specify the amount of family tax benefit advance sought; and
(c)
the amount of family tax benefit advance sought must be at least the minimum amount.
34(2)
If an effective request is made, the Secretary must determine the request in accordance with this Division. If a request is not effective, it is taken never to have been made.
History
S 34 substituted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision and former reading of s 34, see note under Pt 3 Div 2 heading.
SECTION 35
Request may be withdrawn or varied
35(1)
An individual may withdraw or vary a request before the request is determined.
35(2)
The individual may only do so in a manner determined by the Secretary.
35(3)
If a request is withdrawn, it is taken never to have been made.
History
S 35 substituted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision and former reading of s 35, see note under Pt 3 Div 2 heading.
Subdivision B - Entitlement to family tax benefit advance
History
Subdiv B inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
SECTION 35A
Entitlement to family tax benefit advance
35A(1)
The Secretary must determine that an individual is entitled to be paid a family tax benefit advance if:
(a)
on the advance assessment day, the individual is entitled to be paid family tax benefit by instalment; and
(b)
the individual has made an effective request under section
34 for a family tax benefit advance; and
(c)
on the advance assessment day, the individual's Part A rate (disregarding clauses
5 and
25A of Schedule
1 to the Family Assistance Act) is equal to or exceeds the amount that would, under clause
26 of that Schedule, be the FTB child rate if:
(i)
the individual's Part A rate were required to be worked out using Part 3 of that Schedule; and
(ii)
clause 27 of that Schedule did not apply; and
(d)
on the advance assessment day, the individual has at least one FTB child; and
(e)
on the advance assessment day, the amount of advance that the individual would be entitled to is at least the minimum amount; and
(f)
the Secretary considers, on the basis of information available to the Secretary on the advance assessment day, that the individual will not suffer financial hardship from the individual's Part A rate being reduced as a result of being paid the advance; and
(g)
on the advance assessment day, the individual is not excluded from being paid a family tax benefit advance under subsection (2).
History
S 35A(1) amended by No 98 of 2012, s 3 and Sch 3 item 14, by omitting "for an FTB child who had not turned 18" after "FTB child rate" in para (c), applicable for the purposes of working out eligibility for family tax benefit, and how much family tax benefit is payable, for a day that is on or after 1 January 2013.
35A(2)
An individual is excluded from being paid a family tax benefit advance if:
(a)
an amount of family tax benefit advance paid to the individual more than 12 months before the advance assessment day has not been fully repaid; or
(b)
an amount of family tax benefit advance paid to the individual more than 12 months before the advance assessment day is being repaid as a new advance due to a determination under clause
51 of Schedule
1 to the Family Assistance Act; or
(c)
the individual owes a debt to the Commonwealth (whether arising under this Act or not) that is:
(i)
recoverable under Part 4 by means of deductions from the individual's instalments of family tax benefit under section 84 (unless that debt has been written off because of subsection 95(4A) or (4B)); or
(ii)
being recovered by deductions from the individual's instalments of family tax benefit under section 227; or
(d)
on the advance assessment day, the Secretary is prohibited from making a payment of family tax benefit to the individual under section
32AA or
32AD (non-payment for non-lodgment of tax returns).
35A(3)
An individual's
advance assessment day
is the day the Secretary determines the individual's entitlement to be paid a family tax benefit advance.
35A(4)
If the individual is not entitled to be paid a family tax benefit advance under subsection (1), the Secretary must determine that the individual is not entitled to the family tax benefit advance.
History
S 35A inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
Subdivision C - Regular family tax benefit advances
History
Subdiv C inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
SECTION 35B
Regular family tax benefit advances
35B(1)
An individual who makes a request in accordance with section
34 for a family tax benefit advance of the minimum amount (the
first advance
) may, when making the request, also request that a family tax benefit advance of the minimum amount be paid to the individual at regular intervals of 182 days.
35B(2)
For the request for payment of a family tax benefit advance at regular intervals to be effective, the request must be made in a form and manner, contain any information, and be accompanied by any documents, required by the Secretary.
35B(3)
If an individual makes an effective request under this section:
(a)
the Secretary must make a determination under section
35A, in relation to the individual's eligibility for a family tax benefit advance of the minimum amount, at intervals that would best facilitate payment in accordance with the request; and
(b)
the
advance assessment day
for a determination referred to in paragraph (a) is:
(i)
if the individual has not previously been paid a family tax benefit advance requested under this section - the day that falls immediately after the end of an interval of 182 days that began on the day the first advance was paid; or
(ii)
if the individual has previously been paid a family tax benefit advance requested under this section - the day that falls immediately after the end of the last of the intervals of 182 days, the first of which began on the day the first advance was paid.
35B(4)
The Secretary must, in making a determination referred to in subsection (3), treat paragraph
35A(1)(b) (requirement to make an effective request) as having been satisfied if:
(a)
the individual has made an effective request under this section; and
(b)
the request has not been withdrawn under subsection (6) before the determination is made; and
(c)
the individual has not failed to repay the last family tax benefit advance paid in response to the request under section
34 mentioned in subsection (1), or the request under this section, within 182 days.
35B(5)
A request under subsection (1) ceases to be effective if:
(a)
the Secretary, in making a determination referred to in subsection (3), determines that the individual is not entitled to a family tax benefit advance; or
(b)
the individual withdraws the request under subsection (6).
35B(6)
An individual may, in a manner determined by the Secretary, withdraw the request at any time.
History
S 35B inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
Subdivision D - Amount of family tax benefit advance
History
Subdiv D inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
SECTION 35C
Amount of family tax benefit advance
35C(1)
The amount of the family tax benefit advance is the smaller of the following amounts:
(a)
the amount of advance sought;
(b)
the maximum amount of advance payable to the individual on the advance assessment day worked out under section
35D less the original amount of each family tax benefit advance paid to the individual that is unrepaid on that day.
35C(2)
When working out the original amount of each family tax benefit advance paid to the individual that is unrepaid for the purposes of paragraph (1)(b), disregard clause
51 of Schedule
1 to the Family Assistance Act.
35C(3)
The Secretary may determine that the amount of the family tax benefit advance is a lower amount than the amount that applies under subsection (1) if the Secretary is satisfied that the individual would suffer financial hardship if the individual's Part A rate were reduced as a result of being paid that amount.
History
S 35C inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
SECTION 35D
Maximum amount of family tax benefit advance payable
35D(1)
Subject to subsection (2), the
maximum amount
of family tax benefit advance payable to the individual is set out in the following table:
Maximum amount of family tax benefit advance
|
Item
|
If 7.5% of the individual's adjusted Part A rate is:
|
The individual's maximum amount of family tax benefit advance is:
|
1 |
greater than or equal to 23.3% of the standard rate for a child under 13 |
23.3% of the standard rate for a child under 13 |
2 |
less than 23.3% and greater than 7.5% of the standard rate for a child under 13 |
7.5% of the individual's adjusted Part A rate |
3 |
less than or equal to 7.5% of the standard rate for a child under 13 |
7.5% of the standard rate for a child under 13 |
Member of a couple in a blended family
35D(2)
If a determination under section
28 of the Family Assistance Act that the individual is eligible for a percentage (the
section 28 percentage
) of the family tax benefit for FTB children of the individual is in force, the
maximum amount
of family tax benefit advance payable to the individual is the section
28 percentage of the amount worked out for the individual under subsection (1).
Rounding
35D(3)
Amounts worked out under this section must be rounded to the nearest cent (rounding 0.5 cents upwards).
Definitions
35D(4)
In this section:
adjusted Part A rate
, in relation to an individual, means the individual's Part A rate disregarding:
(a)
clause
38A of Schedule
1 to the Family Assistance Act; and
(b)
any reduction under clause
5 or
25A of that Schedule.
standard rate for a child under 13
means the FTB child rate for one FTB child who is under 13 years of age worked out under clause 7 of Schedule 1 to the Family Assistance Act (disregarding clauses 8 to 11 of that Schedule).
History
S 35D inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading. No 53 of 2011, s 3 and Sch 1 item 18 also contains the following transitional provision:
18 Transitional - percentage of standard rate for a child under 13 for 2011-12
18
For the purpose of subsection 35D(1) of the Family Assistance Administration Act as inserted, 23.3% of the standard rate for a child under 13 is taken to be $1000 for the 2011-12 financial year.
Subdivision E - Payment of family tax benefit advance
History
Subdiv E inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
SECTION 35E
Payment of advance
35E(1)
If an individual is entitled to be paid a family tax benefit advance, the Secretary must, at such time and in such manner as the Secretary considers appropriate, pay the individual the advance.
35E(2)
This section is subject to Part
4, Division
3 of Part
8B and sections
225 and
226.
History
S 35E inserted by No 53 of 2011, s 3 and Sch 1 item 13, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
Division 2A - Schoolkids bonus
History
Div 2A repealed by No 96 of 2014, s 3 and Sch 9 item 15, effective 31 December 2016. No 96 of 2014, s 3 and Sch 9 item 24 contains the following saving provisions:
Part 2 - Saving provisions
24 Saving provisions
(1)
If, before the commencement of this item, an individual was, under Division 1A of Part 3 of the Assistance Act, eligible for schoolkids bonus on a bonus test day occurring before that commencement, then, despite the amendments made by Part 1 of this Schedule, the Assistance Act and the Administration Act, as in force immediately before that commencement, continue to apply on and after that commencement in relation to that eligibility.
…
(4)
In this item:
Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
Div 2A inserted by No 50 of 2012, s 3 and Sch 2 item 13, effective 27 May 2012.
SECTION 35F
35F
Entitlement to schoolkids bonus
(Repealed by No 96 of 2014)
History
S 35F repealed by No 96 of 2014, s 3 and Sch 9 item 15, effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. S 35F formerly read:
SECTION 35F Entitlement to schoolkids bonus
35F
If an individual is eligible under Division 1A of Part 3 of the Family Assistance Act for schoolkids bonus on a bonus test day, the individual is entitled to schoolkids bonus on the bonus test day.
S 35F inserted by No 50 of 2012, s 3 and Sch 2 item 13, effective 27 May 2012.
SECTION 35G
35G
Payment of schoolkids bonus
(Repealed by No 96 of 2014)
History
S 35G repealed by No 96 of 2014, s 3 and Sch 9 item 15, effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. S 35G formerly read:
SECTION 35G Payment of schoolkids bonus
35G(1)
If an individual is entitled to schoolkids bonus on a bonus test day, the Secretary must pay the payment to the individual in a single lump sum:
(a)
on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
35G(2)
If, on the bonus test day, section 32AA or 32AD prevents the Secretary from making a payment of family tax benefit to the individual, or the individual's partner, worked out on an estimated income basis, the Secretary must not pay the schoolkids bonus to the individual at a time that is earlier than the time family tax benefit is paid to the individual, or the individual's partner, in relation to that bonus test day.
History
S 35G(2) amended by No 50 of 2012, s 3 and Sch 2 item 22, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3)", effective 1 July 2012.
S 35G inserted by No 50 of 2012, s 3 and Sch 2 item 13, effective 27 May 2012.
SECTION 35H
35H
Obligation to notify change of circumstances
(Repealed by No 96 of 2014)
History
S 35H repealed by No 96 of 2014, s 3 and Sch 9 item 15, effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. S 35H formerly read:
SECTION 35H Obligation to notify change of circumstances
35H(1)
If:
(a)
an individual is eligible for schoolkids bonus on a bonus test day; and
[
CCH Note:
No 70 of 2013, s 3 and Sch 3 item 35(2) contains the following application provision:
35(2)
Paragraph 35H(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, applies in relation to bonus test days occurring on or after 28 June 2013.]
(b)
there is a change in circumstances that may affect the individual's eligibility for schoolkids bonus on a later bonus test day or the amount of schoolkids bonus for the individual for a later bonus test day;
the individual must, in the manner set out in a written notice given to the individual under subsection (3) and as soon as practicable after the change in circumstances, notify the Secretary of that change.
35H(2)
The Secretary must approve a manner of notification that an individual is to use when notifying the Secretary of a thing under subsection (1).
35H(3)
The Secretary must, by written notice, notify the individual of the approved manner of notification.
S 35H inserted by No 70 of 2013, s 3 and Sch 3 item 34, effective 28 June 2013.
SECTION 35J
35J
Determination of eligibility may be based on estimate
(Repealed by No 96 of 2014)
History
S 35J repealed by No 96 of 2014, s 3 and Sch 9 item 15, effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. S 35J formerly read:
SECTION 35J Determination of eligibility may be based on estimate
35J
If:
(a)
an individual's eligibility under Division 1A of Part 3 of the Family Assistance Act for schoolkids bonus on a bonus test day is required to be determined; and
(b)
information about the amount of adjusted taxable income needed for the determination of the eligibility is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and
(c)
the individual gives the Secretary an estimate of the amount needed; and
(d)
the Secretary considers the estimate to be reasonable;
the Secretary may determine the individual's eligibility on the basis of the estimate.
S 35J inserted by No 96 of 2014, s 3 and Sch 9 item 1N, effective 5 September 2014.
Division 3 - Stillborn baby payment
History
Div 3 heading substituted by No 70 of 2013, s 3 and Sch 2A item 31, effective 1 March 2014. The heading formerly read:
Division 3 - Baby bonus
No 70 of 2013, s 3 and Sch 2A item 67 contains the following application and transitional provisions:
67 Application and transitional provisions - Parts 1 and 2
(1)
Despite the amendments made by this Schedule, the Assistance Act and the Administration Act, as in force immediately before the commencement of this item, to the extent to which they relate to baby bonus, continue to apply on and after that commencement in relation to an individual if the following circumstances exist:
(a)
for subsection 36(2) of the Assistance Act - the child was born before 1 March 2014;
(b)
for subsection 36(3) of the Assistance Act - the child was born before 1 March 2014;
(c)
for subsection 36(4) of the Assistance Act - the child was born as a stillborn child before 1 March 2014;
(d)
for subsection 36(5) of the Assistance Act - the child was entrusted to care before 1 March 2014.
(2)
Subclause 35A(2) of Schedule 1 to the Assistance Act, as inserted by this Schedule, applies in relation to a child who is born on or after 1 March 2014.
(3)
Subclause 35A(5) of Schedule 1 to the Assistance Act, as inserted by this Schedule, applies in relation to a child who is born on or after 1 March 2014.
(4)
Subclause 35A(7) of Schedule 1 to the Assistance Act, as inserted by this Schedule, applies in relation to a child who is entrusted to care on or after 1 March 2014.
(5)
To avoid doubt, for the purposes of paragraph 35B(1)(a) of Schedule 1 to the Assistance Act, as inserted by this Schedule, in working out whether a child is the first child born alive to a woman, take into account children born alive to the woman before, on or after 1 March 2014.
(6)
To avoid doubt, for the purposes of paragraph 35B(1)(b) or (c) of Schedule 1 to the Assistance Act, as inserted by this Schedule, in working out whether a child is the first child entrusted to the care of an individual, or the partner of an individual, take into account children entrusted to the care of the individual, or the partner of the individual, before, on or after 1 March 2014.
(7)
Paragraph 36(1)(a) of the Assistance Act, as inserted by this Schedule, applies in relation to a child who is born as a stillborn child on or after 1 March 2014.
(8)
To avoid doubt, for the purposes of paragraph 66(1)(a) of the Assistance Act, as inserted by this Schedule, in working out whether a child is the first stillborn child of a woman, take into account children born as stillborn children of the woman before, on or after 1 March 2014.
(9)
Despite the amendments made by this Schedule, section 52-150 of the Income Tax Assessment Act 1997 (as in force immediately before the commencement of this item) continues to apply on and after that commencement in relation to payments of baby bonus made before, on or after that commencement.
(10)
Despite the amendments made by this Schedule:
(a)
paragraph (e) of the definition of
category I welfare payment
in section 123TC of the Social Security (Administration) Act 1999 (as in force immediately before the commencement of this item); and
(b)
paragraph (p) of the definition of
category Q welfare payment
in that section as so in force; and
(c)
paragraph (c) of the definition of
category S welfare payment
in that section as so in force; and
(d)
sections 123XJA and 123XJC of that Act as so in force;
continue to apply on and after that commencement in relation to payments of baby bonus made before, on or after that commencement.
(11)
Despite the amendments made by this Schedule, paragraph 31(2)(f) of the Paid Parental Leave Act 2010 (as in force immediately before the commencement of this item) continues to apply on and after that commencement in relation to working out eligibility for parental leave pay for a child before, on or after that commencement.
(12)
In this item:
Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
No 59 of 2004, s 3 and Sch 2 item 25, contains the following saving provision:
25 Saving provision for maternity allowance claims etc.
(1)
Despite the amendments of Division 3 of Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999, that Division applies in relation to the following as if the amendments had not been made:
(a)
claims for maternity allowance;
(b)
determination of claims for maternity allowance;
(c)
payments of maternity allowance.
(2)
It does not matter whether the claims were or are made before, on or after commencement.
SECTION 36
36
Need for a claim
The only way that a person can become entitled to be paid a stillborn baby payment is to make a claim in accordance with this Division.
History
S 36 substituted by No 70 of 2013, s 3 and Sch 2A item 32, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 36 formerly read:
SECTION 36 Need for a claim
36
The only way that a person can become entitled to be paid baby bonus is to make a claim in accordance with this Division.
S 36 amended by No 49 of 2012, s 3 and Sch 1 item 20, by omitting "or maternity immunisation allowance" after "baby bonus", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 36 amended by No 82 of 2007, s 3 and Sch 6 item 28, by substituting "baby bonus" for "maternity payment", applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 36 amended by No 59 of 2004, s 3 and Sch 2 item 16, by substituting "maternity payment" for "maternity allowance", effective 1 July 2004. For saving provision, see note under Div 3 heading.
SECTION 37
37
Who can claim
The only persons who can make a claim in accordance with this Division are individuals.
History
S 37 substituted by No 70 of 2013, s 3 and Sch 2A item 32, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 37 formerly read:
SECTION 37 Who can claim
37
The only persons who can make a claim in accordance with this Division are individuals.
SECTION 38
How to claim
38(1)
An individual (the
claimant
) may make a claim for payment of:
(a)
a stillborn baby payment in normal circumstances; or
(b)
a stillborn baby payment because of the death of another individual.
38(2)
A claim is not effective unless:
(a)
the claim:
(i)
is made in a form and manner; and
(ii)
contains any information; and
(iii)
is accompanied by any documents;
required by the Secretary; and
(b)
in the case of a claim for a stillborn baby payment in normal circumstances - the claim contains an estimate of the sum of:
(i)
the individual's adjusted taxable income; and
(ii)
if the individual is a member of a couple on the day the claim is made - the adjusted taxable income of the individual's partner;
for the 6-month period mentioned in paragraph 36(1)(d) of the Family Assistance Act; and
(c)
in the case of a claim for a stillborn baby payment in normal circumstances - the tax file number requirement in section
38A has been satisfied in relation to the claim; and
(d)
in the case of a claim for a stillborn baby payment because of the death of another individual - the tax file number requirement in section
38B has been satisfied in relation to the claim.
Estimate of adjusted taxable income
38(3)
For the purposes of paragraph (2)(b):
(a)
a reference in Schedule
3 to the Family Assistance Act to an income year is taken to be a reference to the 6-month period referred to in that paragraph; and
(b)
disregard subclause
2(2) and clauses
3 and
3A of that Schedule.
History
S 38 substituted by No 70 of 2013, s 3 and Sch 2A item 32, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 38 formerly read:
SECTION 38 How to claim
38(1)
An individual (the
claimant
) may make a claim for payment of:
(a)
baby bonus in normal circumstances; or
(b)
baby bonus because of the death of another individual.
History
S 38(1) amended by No 49 of 2012, s 3 and Sch 1 item 21, by omitting "or maternity immunisation allowance" after "baby bonus" in para (a) and (b), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 38(1) amended by No 59 of 2004, s 3 and Sch 2 item 16, by substituting "maternity payment" for "maternity allowance" (wherever occurring), effective 1 July 2004. For saving provision, see note under Div 3 heading.
S 38(1) amended by No 30 of 2003, s 3 and Sch 2 item 20, by substituting "individual" for "person", effective 15 April 2003.
38(2)
A claim is not effective unless:
(a)
the claim:
(i)
is made in a form and manner; and
(ii)
contains any information; and
(iii)
is accompanied by any documents;
required by the Secretary; and
(aa)
in the case of a claim for baby bonus - the claim contains an estimate of the sum of:
(i)
the individual's adjusted taxable income; and
(ii)
if the individual is a member of a couple on the day the claim is made - the adjusted taxable income of the individual's partner;
the 6 month period mentioned in paragraph 36(2)(d), (3)(e), (4)(c) or (5)(d) of the Family Assistance Act; and
(b)
in the case of a claim for baby bonus in normal circumstances - the tax file number requirement in section 38A has been satisfied in relation to the claim; and
(c)
in the case of a claim by an individual for baby bonus because of the death of another individual - the tax file number requirement in section 38B has been satisfied in relation to the claim.
History
S 38(2) amended by No 49 of 2012, s 3 and Sch 1 item 21, by omitting "or maternity immunisation allowance" after "baby bonus" in para (b) and (c), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 38(2) amended by No 63 of 2008, s 3 and Sch 2 item 16, by inserting para (aa), effective 1 January 2009.
S 38(2) amended by No 59 of 2004, s 3 and Sch 2 item 16, by substituting "maternity payment" for "maternity allowance" (wherever occurring), effective 1 July 2004. For saving provision, see note under Div 3 heading.
S 38(2) substituted by No 30 of 2003, s 3 and Sch 2 item 21, effective 15 April 2003. S 38(2) formerly read:
Form etc of claim
38(2)
To be effective, a claim must:
(a)
be made in a form and manner; and
(b)
contain any information; and
(c)
be accompanied by any documents;
required by the Secretary.
38(2A)
A claim is not effective if it is made before the early claim day.
History
S 38(2A) inserted by No 105 of 2010, s 3 and Sch 1 item 23, effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
Estimate of adjusted taxable income
38(3)
For the purposes of paragraph (2)(aa):
(a)
a reference in Schedule 3 to the Family Assistance Act to an income year is taken to be a reference to the 6 month period referred to in that paragraph; and
(b)
disregard subclause 2(2) and clauses 3 and 3A of that Schedule.
History
S 38(3) inserted by No 63 of 2008, s 3 and Sch 2 item 17, effective 1 January 2009.
S 38 amended by No 82 of 2007, s 3 and Sch 6 item 29, by substituting "baby bonus" for "maternity payment" (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
SECTION 38A
Tax file number requirement to be satisfied for claims for stillborn baby payment in normal circumstances to be effective
38A(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph
38(2)(b) (which states what is required for certain claims to be effective).
38A(2)
The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN claim person. However, the requirement does not apply in relation to a TFN claim person if a determination is in force under subsection (7) in relation to the person.
Statement of tax file number
38A(3)
The first kind of statement that can be made is a statement of the TFN claim person's tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.
Statement that TFN claim person does not know what his or her tax file number is etc.
38A(4)
The second kind of statement that can be made is a statement by the TFN claim person 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
38A(5)
The third kind of statement that can be made is a statement by the TFN claim person 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.
How statement to be given
38A(6)
A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in adocument, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement
38A(7)
The Secretary may determine that the requirement in subsection (2) does not apply to a TFN claim person if:
(a)
the person is, or was, the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection (4) or (5).
History
S 38A inserted by No 30 of 2003, s 3 and Sch 2 item 22, effective 15 April 2003.
SECTION 38B
Tax file number requirement to be satisfied for claims for stillborn baby payment because of the death of another individual to be effective
38B(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph
38(2)(c) (which states what is required for claims in substitution because of the death of another individual to be effective).
38B(2)
The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN substitution person. However, the requirement does not apply in relation to a TFN substitution person if a determination is in force under subsection (7) or (8) in relation to the person.
Statement of tax file number
38B(3)
The first kind of statement that can be made is a statement of a TFN substitution person's tax file number. Regardless of who the TFN substitution person is, this kind of statement can be made by the claimant only.
Statement that TFN substitution person does not know what his or her tax file number is
38B(4)
The second kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual's partner during the period in respect of which the payment is claimed to the effect that the TFN substitution 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
38B(5)
The third kind of statement that can be made is a statement by the TFN substitution person who was the deceased individual's partner during the period in respect of which the payment is claimed to the effect that the TFN substitution 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.
How statement to be given
38B(6)
A statement madeby the claimant must be made in the claim. A statement made by a TFN substitution person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement
38B(7)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant does not know the person's tax file number.
38B(8)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant cannot obtain a statement by the person under subsection (4) or (5).
History
S 38B inserted by No 30 of 2003, s 3 and Sch 2 item 22, effective 15 April 2003.
SECTION 39
Restrictions on claiming
"Normal circumstances" entitlement must not already have been determined, or be awaiting determination, on a previous claim
39(1)
A claim for payment of a stillborn baby payment in normal circumstances is not effective if the claimant has previously made such a claim based on the same circumstances (whether or not the claim has yet been determined).
Timing of "normal circumstances" stillborn baby payment claim
39(2)
Subject to subsections
(3),
(3A) and
(4), a claim for payment of a stillborn baby payment in normal circumstances is not effective unless it is made before the end of the period of 52 weeks beginning on the day of the birth of the stillborn child.
History
S 39(2) amended by No 14 of 2014, s 3 and Sch 12 item 87, by substituting "subsections (3), (3A) and (4)" for "subsections (3) and (4)", effective 1 March 2014.
39(3)
If the Secretary is satisfied that the claimant was unable to make a claim for payment of a stillborn baby payment in normal circumstances because of severe illness associated with the birth of the stillborn child, the Secretary may extend the period of 52 weeks mentioned in subsection
(2) to such longer period as the Secretary considers appropriate.
39(3A)
If:
(a)
in relation to any day during the period of 52 weeks mentioned in subsection (2), paragraphs
36(2)(a) and
(b) of the Family Assistance Act apply in relation to the claimant or the claimant's partner; and
(b)
after theend of, or during the last 13 weeks of, that 52-week period, the Secretary gives the claimant, or the claimant's partner, a notice specifying that the claimant's or the claimant's partner's rate of family tax benefit consists of or includes a Part A rate greater than nil;
subsection 36(2)(a)(2) of this section does not apply if the claim for payment of a stillborn baby payment is made within the period of 13 weeks after the day on which the notice is given.
History
S 39(3A) inserted by No 14 of 2014, s 3 and Sch 12 item 88, effective 1 March 2014.
39(4)
If:
(a)
the claimant, or the claimant's partner, made a claim in accordance with Part 2-4 of the
Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for payment of a stillborn baby payment relates; and
(b)
the claimant, or the claimant's partner, is given a notice under section 24 of that Act in relation to the claim for parental leave pay that states that parental leave pay is not payable and no determination of the kind mentioned in paragraph 13(6)(b) or 14(4)(b) of that Act has been made; and
(c)
the notice is given:
(i)
after the end of the period of 52 weeks mentioned in subsection (2) of this section; or
(ii)
during the last 13 weeks of that period of 52 weeks;
subsection (2) of this section does not apply if the claim for payment of a stillborn baby payment is made within the period of 13 weeks after the day on which the notice is given.
History
S 39(4) amended by No 4 of 2023, s 3 and Sch 2 item 9, by substituting para (b), effective 26 March 2023. Para (b) formerly read:
(b)
the claimant, or the claimant's partner, is given a notice under section 24 of that Act in relation to the claim for parental leave pay that states that:
(i)
if the claim is a claim for parental leave pay in relation to the maximum PPL period for the child - parental leave pay is not payable and no determination of the kind mentioned in paragraph 13(4)(b), 14(4)(b), 14(7)(b), 15(2)(b), 15(6)(b) or 16(5)(b) of that Act has been made; or
(ii)
if the claim is a claim for parental leave pay for a flexible PPL day for the child - parental leave pay is not payable and no determination of the kind mentioned in paragraph 17A(4)(b) or 17B(5)(b) of that Act has been made; and
S 39(4) amended by No 53 of 2020, s 3 and Sch 1 item 7, by substituting para (b), effective 1 July 2020. Para (b) formerly read:
(b)
the Secretary notifies the claimant, or the claimant's partner, under section 24 of that Act that parental leave pay is not payable for the child; and
"Bereavement" entitlement must not already have been determined, or be awaiting determination, on a previous claim
39(5)
A claim for payment of a stillborn baby payment because of the death of another individual is not effective if the claimant has previously made such a claim because of the death of that individual (whether or not the claim has yet been determined).
History
S 39 substituted by No 70 of 2013, s 3 and Sch 2A item 35, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 39 formerly read:
SECTION 39 Restrictions on claiming
"Normal circumstances" entitlement must not already have been determined, or be awaiting determination, on a previous claim
39(1)
A claim for payment of baby bonus in normal circumstances is not effective if the claimant has previously made such a claim based on the same circumstances (whether or not the claim has yet been determined).
History
S 39(1) amended by No 49 of 2012, s 3 and Sch 1 item 24, by omitting "or maternity immunisation allowance" after "baby bonus", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
39(1A)
However, subsection (1) does not apply to a claim for payment of baby bonus in respect of a child if:
(a)
section 36A of the Family Assistance Act applied in relation to an individual's eligibility for baby bonus in respect of the child, but ceased to apply because of subsection 36A(3) of that Act; and
(b)
the claim is the individual's first claim for payment of baby bonus in respect of the child after that section so ceased to apply.
History
S 39(1A) amended by No 53 of 2011, s 3 and Sch 5 items 26 and 27, by inserting "of the Family Assistance Act" after "section 36A" and "of that Act" after "subsection 36A(3)" in para (a), effective 1 July 2011.
S 39(1A) inserted by No 105 of 2010, s 3 and Sch 1 item 24, effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
"Normal circumstances" baby bonus claim must be made within limited period after birth etc of child
39(2)
Subject to subsections (3) and (3A), a claim for payment of baby bonus in normal circumstances is not effective unless it is made before the end of the period of 52 weeks beginning on:
(a)
if the circumstances covered by the claim involve eligibility under any of subsections 36(2) to (4) of the Family Assistance Act - the day of the birth of the child mentioned in that subsection; or
(b)
if the circumstances covered by the claim involve eligibility under subsection 36(5) of the Family Assistance Act - the day the child becomes entrusted to the care of the claimant.
History
S 39(2) amended by No 70 of 2013, s 3 and Sch 3 item 40, by substituting "becomes entrusted" for "is entrusted" in para (b), applicable in relation to a child becoming entrusted to the care of a person before, on or after 28 June 2013. However, the amendment does not affect the rights or liabilities arising between parties to a proceeding heard and finally determined by a court before 28 June 2013, to the extent that those rights or liabilities arose from, or were affected by, a child being entrusted to the care of a person.
S 39(2) amended by No 70 of 2013, s 3 and Sch 1 items 4 to 6, by substituting "unless it is made before the end of the period of 52 weeks beginning on" for "if it is made later than 52 weeks after", "the day of the birth" for "the birth" in para (a) and "the day" for "the time" in para (b), applicable in relation to claims for payment of baby bonus that are made on or after 28 June 2013.
S 39(2) amended by No 105 of 2010, s 3 and Sch 1 item 25, by substituting "subsections (3) and (3A)" for "subsection (3)", effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
S 39(2) amended by No 63 of 2008, s 3 and Sch 2 item 43, by substituting para (b) for paras (b) and (c), applicable in relation to children who become entrusted to care (within the meaning of the A New Tax System (Family Assistance) Act 1999, as amended by Part 2 of Schedule 3 to the Family Assistance and Other Legislation Amendment Act 2013) on or after 1 January 2009. Para (b) and (c) formerly read:
(b)
if the circumstances covered by the claim involve eligibility under subsection 36(5) of the Family Assistance Act and the child mentioned in that subsection arrives in Australia from overseas as part of the process for the adoption of the child - the time the child arrives in Australia; or
(c)
if the circumstances covered by the claim involve eligibility under subsection 36(5) of the Family Assistance Act and the child mentioned in that subsection does not arrive in Australia from overseas as part of the process for the adoption of the child - the time the child is entrusted to the care of the claimant.
S 39(2) amended by No 63 of 2008, s 3 and Sch 2 item 18, by substituting "52" for "26", effective 1 January 2009.
S 39(2) amended by No 61 of 2005, s 3 and Sch 2 item 3, by substituting paras (b) and (c) for para (b), effective 1 July 2005. No 61 of 2005, s 3 and Sch 2 Part 2 contains the following application, transitional and other provisions:
Definition of
commencement
4
In this Part:
commencement
means the commencement of the amendments made by Part 1 of this Schedule.
Application of amendments made by Part 1
5
The amendments made by Part 1 of this Schedule apply in relation to any child:
(a)
who is, as part of the process for the adoption of the child by an individual, entrusted to the care of the individual on or after 1 July 2004; and
(b)
in respect of whom maternity payment has not already been paid.
6 Transitional extension of claim deadline
(1)
This item applies to a claim for payment of maternity payment in normal circumstances if:
(a)
before commencement, a child is entrusted to the care of the claimant, as part of the process for the adoption of the child by the claimant; and
(b)
if the child arrives in Australia from overseas as part of the process for the adoption - the child arrives in Australia before commencement.
(2)
Paragraphs 39(2)(b) and (c) of the A New Tax System (Family Assistance) (Administration) Act 1999 do not apply in relation to the claim.
(3)
The claim is not effective if made later than 26 weeks after commencement.
(4)
The reference in subsection 39(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 to the period of 26 weeks mentioned in subsection (2) is taken to be a reference to the period of 26 weeks mentioned in subitem (3).
7 No maternity payment if maternity allowance already paid in respect of child
(1)
An individual is not eligible for maternity payment in respect of a child if:
(a)
after this item commences, the child is entrusted to the individual's care, as part of the process for the adoption of the child by the individual; and
(b)
maternity allowance has been paid to any person in respect of the child.
(2)
In this item:
maternity allowance
means maternity allowance under Division 2 of Part 3 of the A New Tax System (Family Assistance) Act 1999, as in force before item 1 of Schedule 2 to the Family Assistance Legislation Amendment (More Help for Families - Increased Payments) Act 2004 commenced.
Para (b) formerly read:
(b)
if the circumstances covered by the claim involve eligibility under subsection 36(5) of that Act - the time the child mentioned in that subsection is entrusted to the care of the claimant.
Extension of 52 week period in subsection (2)
39(3)
If the Secretary is satisfied that the claimant was unable to make a claim for payment of baby bonus in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 52 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.
History
S 39(3) amended by No 63 of 2008, s 3 and Sch 2 item 19, by substituting "52" for "26", effective 1 January 2009.
39(3A)
If:
(a)
the claimant, or the claimant's partner, made a claim in accordance with Part 2-4 of the Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for payment of baby bonus relates; and
(b)
the Secretary notifies the claimant, or the claimant's partner, under section 24 of that Act that parental leave pay is not payable for the child; and
(c)
the notice is given
(i)
after the end of the period of 52 weeks mentioned in subsection (2) of this section; or
(ii)
during the last 13 weeks of that period of 52 weeks;
subsection (2) of this section does not apply if the claim for payment of baby bonus is made within the period of 13 weeks after the day on which the notice is given.
History
S 39(3A) inserted by No 105 of 2010, s 3 and Sch 1 item 26, effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
39(4)
(Repealed by No 49 of 2012)
History
S 39(4) repealed by No 49 of 2012, s 3 and Sch 1 item 25, effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 39(4) formerly read:
"Normal circumstances" maternity immunisation allowance claim
39(4)
A claim for payment of maternity immunisation allowance in normal circumstances is not effective if it is made after the time specified in the following table:
Normal circumstances maternity immunisation allowance claim
|
Item
|
If the claim is based on eligibility for the allowance under:
|
the claim is not effective if it is made after:
|
1 |
Subsection 39(2) of the Family Assistance Act |
2 years after the birth of the child |
2 |
Subsection 39(2A) of the Family Assistance Act |
5 years after the birth of the child |
3 |
Subsection 39(3) of the Family Assistance Act |
5 years after the delivery of the child |
4 |
Subsection 39(4) of the Family Assistance Act |
the later of:
(a) 2 years after the death of the child; and
(b) 5 years after the birth of the child |
5 |
Subsection 39(5) of the Family Assistance Act |
4 years after the birth of the child |
6 |
Subsection 39(6) of the Family Assistance Act |
(a) if subsection 39(7) of that Act applies - 2 years beginning on the day of the arrival mentioned in paragraph 39(6)(d) of that Act; or
(b) if subsection 39(8) of that Act applies - 2 years after the death of the child |
7 |
Subsection 39(9) of the Family Assistance Act |
the later of:
(a) 2 years after the death of the child; and
(b) 5 years after the birth of the child |
S 39(4) substituted by No 143 of 2008, s 3 and Sch 1 item 10, applicable in relation to claims for payment of maternity immunisation allowance made on or after 1 January 2009. S 39(4) formerly read:
"Normal circumstances" maternity immunisation allowance claim must be made within limited period after birth etc of child
39(4)
A claim for payment of maternity immunisation allowance in normal circumstances is not effective if it is made after:
(a)
if the child mentioned in section 39 of the Family Assistance Act is not stillborn but dies before reaching the age of 2 years-the later of:
(i)
13 weeks after the death of the child; and
(ii)
2 years after the birth of the child; or
(b)
in any other case - 2 years after the birth of the child.
"Bereavement" entitlement must not already have been determined, or be awaiting determination, on a previous claim
39(5)
A claim for payment of baby bonus because of the death of another individual is not effective if the claimant has previously made such a claim because of the death of that individual (whether or not the claim has yet been determined).
History
S 39(5) amended by No 49 of 2012, s 3 and Sch 1 item 26, by omitting "or maternity immunisation allowance" after "baby bonus", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 39(5) amended by No 30 of 2003, s 3 and Sch 2 item 23, by substituting "individual" for "person" (wherever occurring), effective 15 April 2003.
S 39 amended by No 82 of 2007, s 3 and Sch 6 item 29, by substituting "baby bonus" for "maternity payment" (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 39 amended by No 59 of 2004, s 3 and Sch 2 item 16, by substituting "maternity payment" for "maternity allowance" (wherever occurring), effective 1 July 2004. For saving provision, see note under Div 3 heading.
SECTION 40
Claim may be withdrawn
40(1)
A claimant may withdraw or vary a claim before the claim is determined.
40(2)
The claimant may only do so in a manner determined by the Secretary.
40(3)
If a claim is withdrawn, it is taken never to have been made.
SECTION 41
Secretary must determine claim
41(1)
If a claim is effective, the Secretary must determine the claim in accordance with this section and sections
42 to
44. If the claim is not effective, it is taken not to have been made.
Information to be taken into account
41(2)
The Secretary is to make the determination:
(a)
having regard only to the information in the claim (and any accompanying documents or information required by the Secretary); or
(b)
having regard to the things in paragraph
(a) and also to any other information or documents (whether or not provided by the claimant).
Deferral of "normal circumstances" stillborn baby payment determination pending resolution of parental leave pay
41(3)
If:
(a)
the claim is one for payment of a stillborn baby payment in normal circumstances; and
(b)
the claimant, or the claimant's partner, has made a claim in accordance with Part 2-4 of the
Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for a stillborn baby payment relates;
the Secretary must not determine the claim for a stillborn baby payment until one of the following occurs:
(c)
if the Secretary determines under that Act that parental leave pay for the child is payable to the person who made the claim for parental leave pay:
(i)
(Repealed by No 4 of 2023)
(ii)
the instalment period (within the meaning of that Act) for the instalment of parental leave pay that relates to the first of those days has ended; or
(iii)
the Secretary revokes the determination under section 25 of that Act;
(d)
the claimant, or the claimant's partner, is given a notice under section 24 of that Act in relation to the claim for parental leave pay that states that parental leave pay is not payable and no determination of the kind mentioned in paragraph 13(6)(b) or 14(4)(b) of that Act has been made;
(e)
the claim for parental leave pay is withdrawn under section 61 of that Act.
History
S 41(3) amended by No 4 of 2023, s 3 and Sch 2 items 10-12, by repealing para (c)(i), omitting "if the person does not have a PPL period for the child but parental leave pay is payable to the person for one or more flexible PPL days for the child specified in the claim-" before "the instalment period" from para (c)(ii) and substituting para (d), effective 26 March 2023. Para (c)(i) and (d) formerly read:
(i)
if the person has a PPL period for the child - the person's PPL period starts; or
(d)
the claimant, or the claimant's partner, is given a notice under section 24 of that Act in relation to the claim for parental leave pay that states that:
(i)
if the claim is a claim for parental leave pay in relation to the maximum PPL period for the child - parental leave pay is not payable and no determination of the kind mentioned in paragraph 13(4)(b), 14(4)(b), 14(7)(b), 15(2)(b), 15(6)(b) or 16(5)(b) of that Act has been made; or
(ii)
if the claim is a claim for parental leave pay for a flexible PPL day for the child - parental leave pay is not payable and no determination of the kind mentioned in paragraph 17A(4)(b) or 17B(5)(b) of that Act has been made;
S 41(3) amended by No 53 of 2020, s 3 and Sch 1 item 8, by substituting para (c) and (d), effective 1 July 2020. Para (c) and (d) formerly read:
(c)
if the Secretary determines under that Act that parental leave pay for the child is payable:
(i)
the PPL period applying to the individual who made the claim for parental leave pay starts; or
(ii)
the Secretary revokes the determination under section 25 of that Act;
(d)
the Secretary determines under that Act that parental leave pay for the child is not payable;
History
S 41 substituted by No 70 of 2013, s 3 and Sch 2A item 36, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 41 formerly read:
SECTION 41 Secretary must determine claim
41(1)
If a claim is effective, the Secretary must determine the claim in accordance with this section and sections 42 to 44. If the claim is not effective, it is taken not to have been made.
Information to be taken into account
41(2)
The Secretary is to make the determination:
(a)
having regard only to the information in the claim (and any accompanying documents or information required by the Secretary); or
(b)
having regard to the things in paragraph (a) and also to any other information or documents (whether or not provided by the claimant).
Deferral of "normal circumstances" baby bonus determination pending birth etc. of child
41(3)
If:
(a)
the claim is one for payment of baby bonus in normal circumstances, based on eligibility for baby bonus under subsection 36(2), (3) or (5) of the Family Assistance Act; and
(b)
at the time the determination would otherwise be made, the child to whom the claim relates is not an FTB child of the claimant; and
(c)
the Secretary is satisfied that, at the time the determination would otherwise be made, the claimant would be likely to be eligible for baby bonus in respect of the child if the child were to become an FTB child of the claimant;
the Secretary must not determine the claim for baby bonus until the earlier of the following:
(d)
the time when the child becomes an FTB child of the claimant, or is stillborn;
(e)
28 days after the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant.
History
S 41(3), (4) and (4A) substituted for s 41(3) and (4) by No 105 of 2010, s 3 and Sch 1 item 27, effective 1 October 2010. S 41(3) formerly read:
Deferral of "normal circumstances" baby bonus determination because of ineligibility
41(3)
If:
(a)
the claim is one for payment of baby bonus in normal circumstances; and
(b)
at the time the determination would otherwise be made, the claimant is not eligible for baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act; and
(c)
the reason the claimant is not eligible is not that there was no child born to whom the claim could relate; and
(d)
the time the determination would otherwise be made is not more than 26 weeks after:
(i)
if the circumstances covered by the claim involve eligibility under any of subsections 36(2) to (4) of the Family Assistance Act-the birth of the child mentioned in that subsection; or
(ii)
if the circumstances covered by the claim involve eligibility under subsection 36(5) of that Act-the time the child mentioned in that subsection is entrusted to the care of the claimant; and
(e)
the Secretary is satisfied, at the time the determination would otherwise be made, that the claimant is likely to become eligible for baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act by the end of the 26 weeks mentioned in paragraph (d);
the Secretary must not determine the claim until after the time mentioned in subsection (4).
For transitional provisions, see note under s 3(1), definition of "early claim day".
S 41(3) amended by No 63 of 2008, s 3 and Sch 2 item 20, by substituting "26" for "13" in para (d) and (e), effective 1 January 2009.
Deferral of "normal circumstances" baby bonus determination pending resolution of parental leave pay
41(4)
If:
(a)
the claim is one for payment of baby bonus in normal circumstances; and
(b)
the claimant, or the claimant's partner, has made a claim in accordance with Part 2-4 of the Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for baby bonus relates;
the Secretary must not determine the claim for baby bonus until one of the following occurs:
(c)
if the Secretary determines under that Act that parental leave pay for the child is payable:
(i)
the PPL period applying to the individual who made the claim for parental leave pay starts; or
(ii)
the Secretary revokes the determination under section 25 of that Act;
(d)
the Secretary determines under that Act that parental leave pay for the child is not payable;
(e)
the claim for parental leave pay is withdrawn under section 61 of that Act.
History
S 41(3), (4) and (4A) substituted for s 41(3) and (4) by No 105 of 2010, s 3 and Sch 1 item 27, effective 1 October 2010. S 41(4) formerly read:
41(4)
The time for the purposes of subsection (3) is:
(a)
if the claimant becomes eligible for baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act in respect of the child to whom the claim relates before the end of the 26 weeks mentioned in paragraph (3)(d) - the time when the claimant becomes so eligible; or
(b)
in any other case - the end of the 26 weeks mentioned in paragraph (3)(d).
For transitional provisions, see note under s 3(1), definition of "early claim day".
S 41(4) amended by No 63 of 2008, s 3 and Sch 2 item 21, by substituting "26" for "13" in para (a) and (b), effective 1 January 2009.
41(4A)
(Repealed by No 49 of 2012)
History
S 41(4A) repealed by No 49 of 2012, s 3 and Sch 1 item 27, effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 41(4A) formerly read:
Deferral of "normal circumstances" maternity immunisation allowance determination pending birth etc. of child
41(4A)
If:
(a)
the claim is one for payment of maternity immunisation allowance in normal circumstances, based on eligibility for the allowance under subsection 39(2), (2A) or (5) of the Family Assistance Act, or subsection 39(6) of that Act (where subsection 39(7) of that Act applies), in respect of a child; and
(b)
at the time the determination would otherwise be made, the child is not an FTB child of the claimant; and
(c)
the Secretary is satisfied that, at the time the determination would otherwise be made, if the child were to become an FTB child of the claimant, the claimant:
(i)
would be likely to be eligible for family tax benefit in respect of the child; or
(ii)
would be likely to be so eligible except that the claimant's rate of family tax benefit, worked out under Division 1 of Part 4 of the Family Assistance Act, would be nil;
the Secretary must not determine the claim for maternity immunisation allowance until the earlier of the following:
(d)
the time when the child becomes an FTB child of the claimant, or is stillborn;
(e)
28 days after the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant.
S 41(3), (4) and (4A) substituted for s 41(3) and (4) by No 105 of 2010, s 3 and Sch 1 item 27, effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
41(5)
(Repealed by No 49 of 2012)
History
S 41(5) repealed by No 49 of 2012, s 3 and Sch 1 item 27, effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 41(5) formerly read:
Deferral of "normal circumstances" maternity immunisation allowance determination because of ineligibility
41(5)
If:
(a)
the claim is one for payment of maternity immunisation allowance in normal circumstances, based on eligibility for the allowance under subsection 39(2), (2A) or (5) of the Family Assistance Act, or subsection 39(6) of that Act (where subsection 39(7) of that Act applies), in respect of a child; and
(b)
at the time the determination would otherwise be made on the claim:
(i)
the claimant is not eligible for maternity immunisation allowance under subsection 39(2), (2A), (5) or (6) of that Act in respect of the child; and
(ii)
the child is an FTB child of the claimant; and
(iii)
the claimant is eligible for family tax benefit in respect of the child or would be so eligible except that the claimant's rate of family tax benefit, worked out under Division 1 of Part 4 of the Family Assistance Act, is nil;
the Secretary must not determine the claim until after the time mentioned in subsection (6).
the Secretary must not determine the claim until after the time mentioned in subsection (6).
S 41(5), (6) and (7) substituted for s 41(5) and (6) by No 143 of 2008, s 3 and Sch 1 item 11, applicable in relation to:
(a) claims for payment of maternity immunisation allowance made on or after 1 January 2009; and
(b) claims for payment of maternity immunisation allowance made before 1 January 2009 that had not been determined by the Secretary before 1 January 2009.
S 41(5) formerly read:
Deferral of "normal circumstances" maternity immunisation allowance determination because of ineligibility
41(5)
If:
(a)
the claim (the
immunisation allowance claim
) is one for payment of maternity immunisation allowance in normal circumstances; and
(b)
the immunisation allowance claim is accompanied by a claim for payment of baby bonus in normal circumstances in respect of the child (the
subject child
) to whom the immunisation allowance claim relates; and
(c)
at the time the determination would otherwise be made on the immunisation allowance claim:
(i)
the claimant is not eligible for maternity immunisation allowance in accordance with Subdivision A of Division 3 of Part 3 of the Family Assistance Act in respect of the subject child; and
(ii)
the claimant is eligible for baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act in respect of the subject child; and
(iii)
the claimant is eligible for family tax benefit in respect of the subject child and the claimant's Part A rate is greater than nil;
41(6)
(Repealed by No 49 of 2012)
History
S 41(6) repealed by No 49 of 2012, s 3 and Sch 1 item 27, effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 41(6) formerly read:
41(6)
The time for the purposes of subsection (5) is:
(a)
if the claim is based on eligibility for the allowance under subsection 39(2) of the Family Assistance Act:
(i)
if the claimant becomes eligible for maternity immunisation allowance under subsection 39(2) of that Act in respect of the child before the end of 2 years after the child was born - the time when the claimant becomes so eligible; or
(ii)
in any other case - 2 years after the child was born; or
(b)
if the claim was based on eligibility for the allowance under subsection 39(2A) of the Family Assistance Act:
(i)
if the claimant becomes eligible for maternity immunisation allowance under subsection 39(2A) of that Act in respect of the child before the end of 5 years after the child was born - the time when the claimant becomes so eligible; or
(ii)
in any other case - 5 years after the child was born; or
(c)
if the claim is based on eligibility for the allowance under subsection 39(5) of the Family Assistance Act:
(i)
if the claimant becomes eligible for maternity immunisation allowance under subsection 39(5) of that Act in respect of the child before the end of 4 years after the child was born - the time when the claimant becomes so eligible; or
(ii)
in any other case - 4 years after the child was born; or
(d)
if the claim is based on eligibility for the allowance under subsection 39(6) of the Family Assistance Act (where subsection 39(7) of that Act applies):
(i)
if the claimant becomes eligible for maternity immunisation allowance under subsection 39(6) of that Act (where subsection 39(7) of that Act applies) in respect of the child before the end of 2 years beginning on the day of the arrival mentioned in paragraph 39(6)(d) of that Act - the time when the claimant becomes so eligible; or
(ii)
in any other case - 2 years beginning on the day of the arrival mentioned in paragraph 39(6)(d) of that Act.
S 41(5), (6) and (7) substituted for s 41(5) and (6) by No 143 of 2008, s 3 and Sch 1 item 11, applicable in relation to:
(a) claims for payment of maternity immunisation allowance made on or after 1 January 2009; and
(b) claims for payment of maternity immunisation allowance made before that commencement that had not been determined by the Secretary before that commencement.
S 41(6) formerly read:
41(6)
The time for the purposes of subsection (5) is:
(a)
if the claimant becomes eligible for maternity immunisation allowance in accordance with Subdivision A of Division 3 of Part 3 of the Family Assistance Act in respect of the subject child before the end of 2 years after the subject child was born - the time when the claimant becomes so eligible; or
(b)
in any other case - 2 years after the subject child was born.
41(7)
(Repealed by No 49 of 2012)
History
S 41(7) repealed by No 49 of 2012, s 3 and Sch 1 item 27, effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 41(7) formerly read:
Effect of section 22A of the Family Assistance Act
41(7)
If the claim is one for payment of maternity immunisation allowance in normal circumstances, based on eligibility for the allowance under subsection 39(6) of the Family Assistance Act (where subsection 39(7) of that Act applies), then, for the purposes of paragraphs (4A)(b), (c) and (d) and subparagraphs (5)(b)(ii) and (iii) of this section, the following provisions are to be disregarded:
(a)
paragraph (a) of item 1 of the table in subsection 22A(1) of the Family Assistance Act;
(b)
paragraphs (a) and (c) of item 2 of that table;
(c)
item 3 of that table.
Note:
Section 22A of the Family Assistance Act sets out exceptions to when an individual can be an FTB child of another individual. This subsection removes some of those exceptions.
S 41(7) amended by No 105 of 2010, s 3 and Sch 1 item 28, by inserting "paragraphs (4A)(b), (c) and (d) and" before "subparagraphs", effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
S 41(5), (6) and (7) substituted for s 41(5) and (6) by No 143 of 2008, s 3 and Sch 1 item 11, applicable in relation to:
(a) claims for payment of maternity immunisation allowance made on or after 1 January 2009; and
(b) claims for payment of maternity immunisation allowance made before that commencement that had not been determined by the Secretary before that commencement.
S 41 amended by No 82 of 2007, s 3 and Sch 6 item 29, by substituting "baby bonus" for "maternity payment" (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 41 amended by No 59 of 2004, s 3 and Sch 2 item 16, by substituting "maternity payment" for "maternity allowance" (wherever occurring), effective 1 July 2004. For saving provision, see note under Div 3 heading.
SECTION 41A
Restriction on determining claim where tax file number not provided etc.
Statement that TFN claim person or TFN substitution person does not know what his or her tax file number is etc.
41A(1)
If:
(a)
a TFN claim person makes a statement of the kind set out in subsection
38A(4); or
(b)
a TFN substitution person makes a statement of the kind set out in subsection
38B(4);
the Secretary can only determine the claim concerned if:
(c)
within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(d)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.
Statement that an application for a tax file number is pending
41A(2)
If:
(a)
a TFN claim person makes a statement of the kind set out in subsection
38A(5); or
(b)
a TFN substitution person makes a statement of the kind set out in subsection
38B(5);
the Secretary can only determine the claim concerned if: (c) within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(d)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:
(i)
the person has not applied for a tax file number; or
(ii)
an application by the person for a tax file number has been refused; or
(iii)
the person has withdrawn an application for a tax file number.
41A(3)
If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.
History
S 41A inserted by No 30 of 2003, s 3 and Sch 2 item 24, effective 15 April 2003.
SECTION 42
42
Determination of "normal circumstances" entitlement claim
If:
(a)
the claim is one for payment of a stillborn baby payment in normal circumstances; and
(b)
the Secretary is satisfied that the claimant is eligible for a stillborn baby payment in accordance with Subdivision
A of Division
2 of Part
3 of the Family Assistance Act in respect of the child to whom the claim relates;
the Secretary must determine that the claimant is entitled to be paid the stillborn baby payment and must determine the amount of the payment that the claimant is entitled to be paid.
History
S 42 substituted by No 70 of 2013, s 3 and Sch 2A item 37, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 42 formerly read:
SECTION 42 Determination of "normal circumstances" entitlement claim
42
If:
(a)
the claim is one for payment of baby bonus in normal circumstances; and
(b)
the Secretary is satisfied that the claimant is eligible for baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act in respect of the child to whom the claim relates;
the Secretary must determine that the claimant is entitled to be paid the baby bonus and must determine the amount of the baby bonus that the claimant is entitled to be paid.
S 42 amended by No 49 of 2012, s 3 and Sch 1 items 28 to 29, by omitting "or maternity immunisation allowance" after "baby bonus" (wherever occurring) and substituting para (b), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Para (b) formerly read:
(b)
the Secretary is satisfied that the claimant is eligible for:
(i)
baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act; or
(ii)
maternity immunisation allowance in accordance with Subdivision A of Division 3 of that Act;
as the case requires, in respect of the child to whom the claim relates;
S 42 amended by No 82 of 2007, s 3 and Sch 6 item 29, by substituting "baby bonus" for "maternity payment" (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 42 amended by No 59 of 2004, s 3 and Sch 2 item 16 and 17, by substituting "maternity payment" for "maternity allowance" and by substituting "maternity payment or maternity immunisation allowance and must determine the amount of the maternity payment or maternity immunisation allowance that the claimant is entitled to be paid" for "allowance" (last occurring), effective 1 July 2004. For saving provision, see note under Div 3 heading.
SECTION 43
43
Determination of "bereavement" entitlement claim
If:
(a)
the claim is one for payment of a stillborn baby payment because of the death of another individual; and
(b)
the Secretary is satisfied that the claimant is, in the circumstances covered by the claim, eligible for a stillborn baby payment in accordance with Subdivision
B of Division
2 of Part
3 of the Family Assistance Act;
the Secretary must determine that the claimant is entitled to be paid the stillborn baby payment and must determine the amount of the payment that the claimant is entitled to be paid.
History
S 43 substituted by No 70 of 2013, s 3 and Sch 2A item 37, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 43 formerly read:
SECTION 43 Determination of "bereavement" entitlement claim
43
If:
(a)
the claim is one for payment of baby bonus because of the death of another individual; and
(b)
the Secretary is satisfied that the claimant is, in the circumstances covered by the claim, eligible for baby bonus in accordance with Subdivision B of Division 2 of Part 3 of the Family Assistance Act;
the Secretary must determine that the claimant is entitled to be paid the baby bonus and must determine the amount of the baby bonus that the claimant is entitled to be paid.
S 43 amended by No 49 of 2012, s 3 and Sch 1 items 31 to 33, by omitting "or maternity immunisation allowance" after "baby bonus" wherever occurring and substituting para (b), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Para (b) formerly read:
(b)
the Secretary is satisfied that the claimant is, in the circumstances covered by the claim, eligible for:
(i)
baby bonus in accordance with Subdivision B of Division 2 of Part 3 of the Family Assistance Act; or
(ii)
maternity immunisation allowance in accordance with Subdivision B of Division 3 of that Act;
as the case requires;
S 43 amended by No 82 of 2007, s 3 and Sch 6 item 29, by substituting "baby bonus" for "maternity payment" (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 43 amended by No 59 of 2004, s 3 and Sch 2 items 18 and 19, by substituting "maternity payment" for "maternity allowance" (wherever occurring) and substituting "maternity payment or maternity immunisation allowance and must determine the amount of the maternity payment or maternity immunisation allowance that the claimant is entitled to be paid" for "allowance'' (last occurring), effective 1 July 2004. For saving provision, see note under Div 3 heading.
S 43 amended by No 30 of 2003, s 3 and Sch 2 item 25, by substituting "individual" for "person" in para (a), effective 15 April 2003.
SECTION 44
44
Determination that no entitlement
If the Secretary is not satisfied as mentioned in section
42 or
43, the Secretary must determine that the claimant is not entitled to be paid a stillborn baby payment in respect of the child to whom the claim relates, or in the circumstances covered by the claim, as the case requires.
History
S 44 substituted by No 70 of 2013, s 3 and Sch 2A item 37, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 44 formerly read:
SECTION 44 Determination that no entitlement
44
If the Secretary is not satisfied as mentioned in section 42 or 43, the Secretary must determine that the claimant is not entitled to be paid baby bonus in respect of the child to whom the claim relates, or in the circumstances covered by the claim, as the case requires.
S 44 amended by No 49 of 2012, s 3 and Sch 1 item 44, by omitting "or maternity immunisation allowance" after "baby bonus", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 44 amended by No 82 of 2007, s 3 and Sch 6 item 30, by substituting "baby bonus" for "maternity payment", applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 44 amended by No 59 of 2004, s 3 and Sch 2 item 20, by substituting "maternity payment" for "maternity allowance", effective 1 July 2004. For saving provision, see note under Div 3 heading.
SECTION 45
45
When determination is in force
A determination comes into force when it is made and remains in force at all times afterwards.
History
S 45 substituted by No 70 of 2013, s 3 and Sch 2A item 37, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 45 formerly read:
SECTION 45 When determination is in force
45
A determination comes into force when it is made and remains in force at all times afterwards.
SECTION 46
Notice of determination
46(1)
The Secretary must give notice of the determination to the claimant, stating:
(a)
whether the claimant is entitled to be paid a stillborn baby payment under the determination; and
(b)
if the claimant is entitled - the amount of the stillborn baby payment and how it is to be paid; and
(c)
that the claimant may apply for review of the determination in the manner set out in Part
5.
46(2)
The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.
History
S 46 substituted by No 70 of 2013, s 3 and Sch 2A item 37, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 46 formerly read:
SECTION 46 Notice of determination
46(1)
The Secretary must give notice of the determination to the claimant, stating:
(a)
whether the claimant is entitled to be paid baby bonus under the determination; and
(b)
if the claimant is entitled - the amount of the baby bonus and how it is to be paid; and
(c)
that the claimant may apply for review of the determination in the manner set out in Part 5.
History
S 46(1) amended by No 49 of 2012, s 3 and Sch 1 item 35, by omitting "or maternity immunisation allowance" after "baby bonus" in para (a) and (b), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 46(1) amended by No 82 of 2007, s 3 and Sch 6 item 31, by substituting "baby bonus" for "maternity payment" in paras (a) and (b), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 46(1) amended by No 59 of 2004, s 3 and Sch 2 items 21 and 22, by substituting "maternity payment" for "maternity allowance" in para (a) and substituting "maternity payment or maternity immunisation allowance" for "allowance" in para (b), effective 1 July 2004. For saving provision, see note under Div 3 heading.
46(2)
The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.
History
S 46(2) amended by No 45 of 2000, s 3 Sch 2 item 49, by substituting "by reason only that" for "to any extent if", effective 1 July 2000. For transitional provisions see note under s 7A.
SECTION 47
Payment of stillborn baby payment
47(1)
If the claimant is entitled to be paid a stillborn baby payment, the Secretary must pay the amount of the payment to the claimant in a single lump sum:
(a)
on the day that the Secretary considers to be the earliest day on which it is reasonably practicable for the amount to be paid; and
(b)
to the credit of a bank account nominated and maintained by the claimant.
Payment not to bank account
47(2)
However, the Secretary may direct that an amount that is to be paid under subsection (1) is to be paid in a way other than by payment to the credit of a bank account nominated and maintained by the claimant. A direction has effect accordingly.
Interaction with other provisions
47(3)
This section is subject to Part
4, Division
3 of Part
8B and sections
225 and
226.
History
S 47 substituted by No 70 of 2013, s 3 and Sch 2A item 37, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 47 formerly read:
SECTION 47 Payment of baby bonus
Payment over 13 fortnightly instalment periods
47(1)
The Secretary must:
(a)
after the first fortnightly instalment period ending after he or she determines the claimant is entitled to be paid baby bonus, pay the claimant the upfront part of the amount of baby bonus the claimant is entitled to; and
(b)
after each of the next 12 fortnightly instalment periods, pay the claimant 1/12 of the amount of baby bonus remaining after the application of paragraph (a).
Note:
Section 47AB provides for rounding of the amounts of payments.
History
S 47(1) substituted by No 50 of 2011, s 3 and Sch 3 item 1, applicable in relation to individuals who become eligible for baby bonus on or after 1 July 2011. S 47(1) formerly read:
47(1)
The Secretary must, after each of the first 13 fortnightly instalment periods ending after he or she determines the claimant is entitled to be paid baby bonus, pay the claimant 1/13 of the amount of baby bonus the claimant is entitled to.
Note:
Section 47AB provides for rounding of the amounts of payments.
Payment over 26 weekly instalment periods
47(2)
However, if the Secretary:
(a)
determines that the claimant has a weekly instalment period; and
(b)
makes that determination before the end of what would, apart from that determination, be the end of the claimant's first fortnightly instalment period ending after the making of the determination that the claimant is entitled to be paid baby bonus;
the Secretary must:
(c)
after each of the first 2 weekly instalment periods ending after the determination of entitlement is made, pay the claimant ½ of the upfront part of the amount of baby bonus the claimant is entitled to; and
(d)
after each of the next 24 weekly instalment periods, pay the claimant
1/24 of the amount of baby bonus remaining after the application of paragraph (c).
Note:
Section 47AB provides for rounding of the amounts of payments.
History
S 47(2) substituted by No 50 of 2011, s 3 and Sch 3 item 1, applicable in relation to individuals who become eligible for baby bonus on or after 1 July 2011. S 47(2) formerly read:
47(2)
However, if the Secretary:
(a)
determines that the claimant has a weekly instalment period; and
(b)
makes that determination before the end of what would, apart from that determination, be the end of the claimant's first fortnightly instalment period ending after the making of the determination that the claimant is entitled to be paid baby bonus;
the Secretary must, after each of the first 26 weekly instalment periods ending after the determination of entitlement is made, pay the claimant 1/26 of the amount of baby bonus the claimant is entitled to.
Note:
Section 47AB provides for rounding of the amounts of payments.
Upfront part
47(2A)
The
upfront part
is the following amount:
(a)
if the claimant becomes eligible for baby bonus between 1 July 2011 and 31 August 2012 - $879.77;
(b)
if the claimant becomes eligible for baby bonus between 1 September 2012 and 30 June 2013 - $846.20;
(c)
if the claimant becomes eligible for baby bonus between 1 July 2013 and 30 June 2015 and the amount of baby bonus is the amount applicable under paragraph
66(1)(a),
(b),
(c) or
(d) or subsection 66(2), (3) or (4) of the Family Assistance Act - $846.20;
(d)
if the claimant becomes eligible for baby bonus between 1 July 2013 and 30 June 2015 and the amount of baby bonus is the amount applicable under paragraph
66(1)(e) of the Family Assistance Act - $692.40;
(e)
if the claimant becomes eligible for baby bonus on or after 1 July 2015 and the amount of baby bonus is the amount applicable under paragraph
66(1)(a),
(b),
(c) or
(d) or subsection 66(2), (3) or (4) of the Family Assistance Act - the amount worked out as follows:
|
16.92% |
× |
The amount of baby bonus
the claimant is entitled to |
|
(f)
if the claimant becomes eligible for baby bonus on or after 1 July 2015 and the amount of baby bonus is the amount applicable under paragraph
66(1)(e) of the Family Assistance Act - the amount worked out as follows:
|
23.08% |
× |
The amount of baby bonus
the claimant is entitled to |
|
History
S 47(2A) amended by No 70 of 2013, s 3 and Sch 1 item 7, by substituting paras (b) to (f) for paras (b) and (c), effective 1 July 2013. Paras (b) and (c) formerly read:
(b)
if the claimant becomes eligible for baby bonus between 1 September 2012 and 30 June 2015 - $846.20;
(c)
if the claimant becomes eligible for baby bonus on or after 1 July 2015 - the amount worked out as follows:
|
16.92% |
× |
The amount of baby bonus the claimant is entitled to |
|
S 47(2A) amended by No 98 of 2012, s 3 and Sch 7 item 15, by substituting "$846.20" for "$846.15" in para (b), effective 30 June 2012.
S 47(2A) amended by No 49 of 2012, s 3 and Sch 2 items 3 and 4, by substituting "between 1 July 2011 and 31 August 2012" for "in the 2011-2012 financial year" in para (a) and substituting para (b) and (c) for para (b), effective 26 May 2012. Para (b) formerly read:
(b)
if the claimant becomes eligible for baby bonus in the 2012-2013 financial year or a later financial year - the amount worked out as follows:
|
16.18% |
× |
The amount of baby bonus the claimant is entitled to |
|
S 47(2A) inserted by No 50 of 2011, s 3 and Sch 3 item 1, applicable in relation to individuals who become eligible for baby bonus on or after 1 July 2011.
Alternative payment arrangements in certain cases
47(3)
The Secretary may direct that the whole or a part of an amount that is to be paid for the purposes of subsection (1) or (2) is to be paid in a way different from that provided for by that subsection if:
(a)
the claimant is entitled to be paid baby bonus because of eligibility under subsection
36(2),
(3) or (5) of the Family Assistance Act and the child dies before the claimant is paid all of the amounts under subsection (1) or (2) of this section; or
(b)
the claimant is entitled to be paid baby bonus because of eligibility under subsection
36(4) of the Family Assistance Act; or
(c)
the Secretary makes a determination under paragraph
37(3)(b) of the Family Assistance Act; or
(d)
after a payment is made to the claimant under subsection (1) of this section, the Secretary determines that the claimant has a weekly instalment period; or
(e)
after a payment is made to the claimant under subsection (2) of this section, the Secretary revokes a determination that the claimant has a weekly instalment period.
Payment to bank account
47(4)
The Secretary must make a payment under subsection (1), (2) or (3) at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
Payment not to bank account
47(5)
However, the Secretary may direct that the whole or a part of an amount that is to be paid under subsection (1), (2) or (3) is to be paid in a way other than by payment to the credit of a bank account nominated and maintained by the claimant.
Early payment
47(6)
If the Secretary is satisfied that an amount that would, apart from this subsection, be paid under subsection (1), (2) or (3) on a particular day cannot reasonably be paid on that day, the Secretary may direct that the amount be paid on an earlier day.
Effect of directions
47(7)
If the Secretary gives a direction under this section about the payment of an amount, the amount is to be paid in accordance with the direction, despite any other subsection of this section.
Persons who may have weekly instalment periods
47(8)
The Minister may by legislative instrument specify a class of persons any of whom the Secretary may determine to have weekly instalment periods.
47(9)
The Secretary may determine that a claimant who is a member of a class of persons specified under subsection (8) has weekly instalment periods.
47(10)
The Secretary must revoke a determination made under subsection (9) if he or she is satisfied that the claimant is no longer a member of a class of persons specified under subsection (8).
47(11)
Subsection (10) does not limit the operation of subsection
33(3) of the
Acts Interpretation Act 1901 in relation to subsection (9) of this section.
Secretary may change beginning of instalment periods
47(12)
The Secretary may change, for the purposes of subsections (1) and (2), the day on which successive instalment periods are to begin in relation to a claimant or class of claimants. If the Secretary does so, the last instalment period before the first day on which the new instalment periods are to begin is shortened so that it ends immediately before that day.
Definitions
47(13)
In this section:
fortnightly instalment period
means, subject to subsection (12):
(a)
the period of 14 days beginning on the day the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included; and
(b)
each successive period of 14 days.
instalment period
means a fortnightly instalment period or a weekly instalment period.
weekly instalment period
means, subject to subsection (12):
(a)
the period of 7 days beginning on the day the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included; and
(b)
each successive period of 7 days.
S 47 substituted by No 45 of 2010, s 3 and Sch 1 item 5, effective 14 April 2010. No 45 of 2010, s 3 and Sch 1 items 7 and 8, contain the following application and transitional provisions:
7 Application provision
(1)
Sections 47 and 47AB of the A New Tax System (Family Assistance) (Administration) Act 1999 as amended by this Schedule apply in relation to claimants who have been determined before, on or after 14 April 2010 to be entitled to be paid baby bonus.
(2)
Sections 47AA and 47AB of the A New Tax System (Family Assistance) (Administration) Act 1999 as amended by this Schedule apply in relation to claimants who have been determined before, on or after 14 April 2010 to be entitled to be paid maternity immunisation allowance.
8 Transitional provisions
(1)
The Secretary may give a direction under subsection 47(3) of the A New Tax System (Family Assistance) (Administration) Act 1999, as amended by this Schedule, in relation to a claimant who:
(a)
has been determined before 14 April 2010 to be entitled to be paid baby bonus; and
(b)
has been determined under subsection 47(9) of that Act (as amended by this Schedule) to have weekly instalment periods.
(2)
Subparagraph 38(c)(ii) of the A New Tax System (Family Assistance) Act 1999 applies on and after 14 April 2010 as if a reference in that subparagraph to subsection 47(1), (2) or (3) of the A New Tax System (Family Assistance) (Administration) Act 1999 included a reference to:
(a)
subsection 47(1AA) or (4A) of that Act as in force immediately before that commencement; and
(b)
subsection 47(1A), (2), (3) or (5) of that Act as in force immediately before 1 January 2009.
(3)
A direction that is described in column 1 of an item of the table and was inforce immediately before 14 April 2010 has effect on and after 14 April 2010 as if it were a direction described in column 2 of the item that had been given on 14 April 2010.
Transitional provision for directions
|
Item
|
Column 1
Direction under section 47 of the
A New Tax System (Family Assistance) (Administration) Act 1999
as in force immediately before commencement
|
Column 2
Direction under the
A New Tax System (Family Assistance) (Administration) Act 1999
as amended by this Part
|
1 |
Direction under subsection 47(1AB) |
Direction under subsection 47(5) |
2 |
Direction under subsection 47(4A), so far as it relates to amounts or timing of payments |
Direction under subsection 47(3) |
3 |
Direction under subsection 47(4A), so far as it relates to the making of a payment by means other than paying to the credit of a bank account nominated and maintained by the claimant |
Direction under subsection 47(5) |
4 |
Direction under subsection 47(5) |
Direction under subsection 47AA(2) |
5 |
Direction under subsection 47(6) |
Direction under subsection 47(6) |
S 47 formerly read:
SECTION 47 Payment of baby bonus or maternity immunisation allowance
Payment of baby bonus
47(1AA)
If the claimant is entitled to be paid baby bonus, the Secretary must, after each of the first 13 instalment periods that end after the determination granting the claim is made, pay to the claimant 1/13 of the amount of baby bonus that the claimant is entitled to be paid. The Secretary must pay it at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
History
S 47(1AA) inserted by No 63 of 2008, s 3 and Sch 2 item 24, effective 1 January 2009. No 63 of 2008, s 3 and Sch 2 item 34 (as amended by No 70 of 2013, s 3 and Sch 3 item 45) contains the following application and transitional provision:
34 Application and transitional
(1)
The amendment applies in relation to:
(a)
for claimants entitled to be paid baby bonus because of eligibility under subsection 36(2) of the A New Tax System (Family Assistance) Act 1999 or section 38 of that Act (so far as it relates to that subsection) - children born on or after 1 January 2009; and
(b)
for claimants entitled to be paid baby bonus because of eligibility under subsection 36(3) of that Act or section 38 of that Act (so far as it relates to that subsection) - children born on or after 1 January 2009; and
(c)
for claimants entitled to be paid baby bonus because of eligibility under subsection 36(4) of that Act or section 38 of that Act (so far as it relates to that subsection) - children delivered on or after 1 January 2009; and
(d)
for claimants entitled to bepaid baby bonus because of eligibility under subsection 36(5) of that Act or section 38 of that Act (so far as it relates to that subsection) - children who become entrusted to care (within the meaning of that Act, as amended by Part 2 of Schedule 3 to the Family Assistance and Other Legislation Amendment Act 2013) on or after 1 January 2009.
(2)
Subparagraph 38(c)(ii) of the A New Tax System (Family Assistance) Act 1999 applies on and after 1 January 2009 as if a reference in that subparagraph to subsection 47(1AA) of the A New Tax System (Family Assistance) (Administration) Act 1999 included a reference to subsection 47(1A), (2) or (3) of the A New Tax System (Family Assistance) (Administration) Act 1999 (as in force immediately before 1 January 2009).
47(1AB)
However, the Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of subsection (1AA) is to be paid in a manner other than by payment to the credit of a bank account nominated and maintained by the claimant. If the Secretary gives the direction, the amount is to be paid in accordance with the direction (despite that subsection).
History
S 47(1AB) inserted by No 63 of 2008, s 3 and Sch 2 item 24, effective 1 January 2009. For application and transitional provision, see note under s 47(1AA).
Payment of maternity immunisation allowance
47(1)
If the claimant is entitled to be paid maternity immunisation allowance, the Secretary must pay it to the claimant, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
History
S 47(1) amended by No 63 of 2008, s 3 and Sch 2 item 25, by omitting "baby bonus or" after "entitled to be paid" and inserting the heading "Payment of maternity immunisation allowance", effective 1 January 2009. For application and transitional provision, see note under s 47(1AA).
47(1A)
(Repealed by No 63 of 2008)
History
S 47(1A) repealed by No 63 of 2008, s 3 and Sch 2 item 26, effective 1 January 2009. For application and transitional provision, see note under s 47(1AA). S 47(1A) formerly read:
Payment of baby bonus by instalment for those 18 and over
47(1A)
Despite subsection (1), if:
(a)
the claimant has turned 18 on the day on which the claimant makes a claim for payment of baby bonus; and
(b)
the claimant is entitled to be paid baby bonus in respect of a child; and
(c)
on the day on which the determination granting the claim is made:
(i)
the claimant is subject to the income management regime(within the meaning of Part 3B of the Social Security (Administration) Act 1999); or
(ii)
the claimant is included in a class of individuals specified in a legislative instrument made by the Minister for the purposes of this subparagraph;
the Secretary must, after each of the first 13 instalment periods that end after the determination granting the claim is made, pay to the claimant 1/13 of the amount of baby bonus that the claimant is entitled to be paid. The Secretary must pay it at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
S 47(1A) inserted by No 130 of 2007, s 3 and Sch 2 item 2, effective 18 August 2007.
47(1B)
(Repealed by No 63 of 2008)
History
S 47(1B) repealed by No 63 of 2008, s 3 and Sch 2 item 26, effective 1 January 2009. For application and transitional provision, see note under s 47(1AA). S 47(1B) formerly read:
47(1B)
However, the Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of subsection (1A) is to be paid in a manner other than by payment to the credit of a bank account nominated and maintained by the claimant. If the Secretary gives the direction, the amount is to be paid in accordance with the direction (despite that subsection).
S 47(1B) inserted by No 130 of 2007, s 3 and Sch 2 item 2, effective 18 August 2007.
47(2)
(Repealed by No 63 of 2008)
History
S 47(2) repealed by No 63 of 2008, s 3 and Sch 2 item 26, effective 1 January 2009. For application and transitional provision, see note under s 47(1AA). S 47(2) formerly read:
47(2)
Despite subsection (1), if:
(aa)
the claimant has turned 18 on the day on which the claimant makes a claim for payment of baby bonus; and
(a)
the claimant is entitled to be paid baby bonus in respect of a child; and
(ab)
subsection (1A) does not apply to the claimant; and
(b)
at a time before the claimant is paid any of the payment, the Secretary is satisfied that it is appropriate to do so;
the Secretary must, after each of the first 6 instalment periods ending after that time, pay to the claimant ⅙ of the amount of baby bonus that the claimant is entitled to be paid. The Secretary must pay it at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
S 47(2) amended by No 130 of 2007, s 3 and Sch 2 items 3 and 4, by substituting "Despite subsection (1)" for "However" and inserting para (ab), applicable to claims for payment of baby bonus made after 18 August 2007.
S 47(2) amended by No 82 of 2007, s 3 and Sch 6 item 2, by inserting para (aa), applicable to claims for payment of baby bonus made after 1 July 2007.
47(3)
(Repealed by No 63 of 2008)
History
S 47(3) repealed by No 63 of 2008, s 3 and Sch 2 item 26, effective 1 January 2009. For application and transitional provision, see note under s 47(1AA). S 47(3) formerly read:
Payment of baby bonus by instalment for those under 18
47(3)
Despite subsection (1), if:
(a)
the claimant has not yet turned 18 on the day on which the claimant makes a claim for payment of baby bonus; and
(b)
the claimant is entitled to be paid baby bonus in respect of a child;
the Secretary must, after each of the first 13 instalment periods that end after the determination granting the claim is made, pay to the claimant 1/13 of the amount of baby bonus that the claimant is entitled to be paid. The Secretary must pay it at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
S 47(3) amended by No 130 of 2007, s 3 and Sch 2 item 5, by substituting "Despite subsection (1), if" for "If", applicable to claims for payment of baby bonus made after 18 August 2007.
S 47(3) and (3A) substituted for s 47(3) by No 82 of 2007, s 3 and Sch 6 item 3, applicable to claims for payment of baby bonus made after 1 July 2007. S 47(3) formerly read:
47(3)
In subsection (2):
instalment period
means, subject to subsection (4):
(a)
the period of 14 days beginning on such day as the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included; and
(b)
each successive period of 14 days.
47(3A)
(Repealed by No 63 of 2008)
History
S 47(3A) repealed by No 63 of 2008, s 3 and Sch 2 item 26, effective 1 January 2009. For application and transitional provision, see note under s 47(1AA). S 47(3A) formerly read:
47(3A)
However, the Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of subsection (3) is to be paid in a manner other than by payment to the credit of a bank account nominated and maintained by the claimant. If the Secretary gives the direction, the amount is to be paid in accordance with the direction (despite that subsection).
S 47(3) and (3A) substituted for s 47(3) by No 82 of 2007, s 3 and Sch 6 item 3, applicable to claims for payment of baby bonus made after 1 July 2007.
Secretary may change beginning of instalment periods
47(4)
The Secretary may change, for the purposes of subsection (1AA), the day on which successive instalment periods are to begin in relation to a claimant or class of claimants. If the Secretary does so, the last instalment period before the first day on which the new instalment periods are to begin is shortened so that it ends immediately before that day.
History
S 47(4) amended by No 63 of 2008, s 3 and Sch 2 item 27, by substituting "(1AA)" for "(1A), (2) or (3)", effective 1 January 2009. For application and transitional provision, see note under s 47(1AA).
S 47(4) amended by No 130 of 2007, s 3 and Sch 2 item 6, by inserting "(1A)," before "(2)", applicable to claims for payment of baby bonus made after 18 August 2007.
S 47(4) amended by No 82 of 2007, s 3 and Sch 6 item 4, by inserting ", for the purposes of subsection (2) or (3)", applicable to claims for payment of baby bonus made after 1 July 2007.
Alternative payment arrangements - baby bonus
47(4A)
If:
(a)
the claimant is entitled to be paid baby bonus because of eligibility under subsection 36(2), (3) or (5) of the Family Assistance Act and the child dies before the claimant is paid all of the amounts for the purposes of subsection (1AA) of this section; or
(b)
the claimant is entitled to be paid baby bonus because of eligibility under subsection 36(4) of the Family Assistance Act; or
(c)
the Secretary makes a determination under paragraph 37(3)(b) of the Family Assistance Act;
the Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of subsection (1AA) of this section is to be paid in a different way from that provided for by that subsection. If the Secretary gives the direction, the amount is to be paid in accordance with the direction (despite that subsection).
History
S 47(4A) inserted by No 63 of 2008, s 3 and Sch 2 item 28, effective 1 January 2009. For application and transitional provision, see note under s 47(1AA).
Alternative payment arrangements - maternity immunisation allowance
47(5)
The Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of subsection (1) is to be paid in a different way from that provided for by that subsection. If the Secretary gives the direction, the amount is to be paid in accordance with the direction (despite that subsection).
History
S 47(5) amended by No 63 of 2008, s 3 and Sch 2 items 29 to 31, by substituting "subsection (1)" for "this section" , inserting " - maternity immunisation allowance" at the end of the heading, substituting "that subsection" for "subsection (1) or (2)" and substituting "that subsection" for "those subsections", effective 1 January 2009. For application and transitional provision, see note under s 47(1AA).
47(6)
If the Secretary is satisfied that an amount that would, apart from this subsection, be paid under subsection (1AA) on a particular day cannot reasonably be paid on that day, the Secretary may direct that the amount be paid on an earlier day.
History
S 47(6) amended by No 63 of 2008, s 3 and Sch 2 item 32, by substituting "(1AA)" for "(1A), (2) or (3)", effective 1 January 2009. For application and transitional provision, see note under s 47(1AA).
S 47(6) amended by No 130 of 2007, s 3 and Sch 2 item 6, by inserting "(1A)," before "(2)", applicable to claims for payment of baby bonus made after 18 August 2007.
S 47(6) amended by No 82 of 2007, s 3 and Sch 6 item 5, by inserting "or (3)" after "(2)", applicable to claims for payment of baby bonus made after 1 July 2007.
Rounding of payments
47(7)
If an amount to be paid under this section is not a whole number of cents, it must be rounded to the nearest cent (rounding 0.5 cents upwards).
Relationship of this section with other provisions
47(8)
This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
Definitions
47(9)
In this section:
instalment period
means, subject to subsection (4):
(a)
the period of 14 days beginning on such day as the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included; and
(b)
each successive period of 14 days.
History
S 47(9) inserted by No 82 of 2007, s 3 and Sch 6 item 6, applicable to claims for payment of baby bonus made after 1 July 2007.
History
S 47 substituted by No 59 of 2004, s 3 and Sch 2 item 23, effective 1 July 2004. For saving provision, see note under Div 3 heading. S 47 formerly read:
Payment of maternity allowance or maternity immunisation allowance
47(1)
If the claimant is entitled to be paid maternity allowance or maternity immunisation allowance, the Secretary must pay the allowance to the claimant, at such time and in such manner as the Secretary considers appropriate.
History
S 47(1) amended by No 95 of 2002, s 3 Sch 2 item 6, by substituting "If" for "Subject to this section, if", effective 1 July 2003.
Making of payments to third parties
47(2)
This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
History
S 47(2) substituted for 47(2) and 47(4), by No 95 of 2002, s 3 Sch 2 item 7, effective 1 July 2003. For continuation provisions see history note under s 23(4). S 47(2) formerly read:
47(2)
The Secretary may instead pay the whole or a part of the allowance to someone other than the claimant, on behalf of the claimant. The payment may be made at such time and in such manner as the Secretary considers appropriate.
S 47(2) amended by No 45 of 2000, s 3 Sch 2 item 50, by adding "The payment may be made at such time and in such manner as the Secretary considers appropriate." at the end, effective 1 July 2000. For transitional provisions see note under s 7A.
47(3)
(Repealed by No 45 of 2000)
History
S 47(3) repealed by No 45 of 2000, s 3 Sch 2 item 51, effective 1 July 2000. For transitional provisions see note under s 7A. S 47(3) formerly read:
Regulations may provide for timing and manner of making payments
47(3)
The regulations may make provision for the time at which, and the manner in which, an allowance is to be paid for the purposes of this section. If such regulations are made, the Secretary must pay the allowance in accordance with the regulations.
47(4)
(Repealed by No 95 of 2002)
History
S 47(2) substituted for 47(2) and 47(4), by No 95 of 2002, s 3 Sch 2 item 7, effective 1 July 2003. For continuation provisions see history note under s 23(4). S 47(4) formerly read:
Section subject to other provisions
47(4)
This section is subject to Part 4 (Overpayments and debt recovery) and sections 225 and 226 (which deal with tax debts).
History
S 47(4) amended by No 45 of 2000, s 3 Sch 2 item 52,by substituting "and 226 (which deal with tax debts)" for "to 228 (which deal with other debts etc)". For transitional provisions see note under s 7A.
S 47 amended by No 82 of 2007, s 3 and Sch 6 item 32, by substituting "baby bonus" for "maternity payment" (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
SECTION 47AA
47AA
Payment of maternity immunisation allowance
(Repealed by No 49 of 2012)
History
S 47AA repealed by No 49 of 2012, s 3 and Sch 1 item 36, effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 47AA formerly read:
SECTION 47AA Payment of maternity immunisation allowance
47AA(1)
If the claimant is entitled to be paid maternity immunisation allowance, the Secretary must pay it to the claimant, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
Note:
Section 47AB provides for rounding of the amounts of payments.
Alternative payment arrangements
47AA(2)
The Secretary may direct that the whole or a part of an amount that is to be paid for the purposes of subsection (1) is to be paid in a way different from that provided for by that subsection. If the Secretary gives the direction, the amount is to be paid in accordance with the direction (despite that subsection).
S 47AA inserted by No 45 of 2010, s 3 and Sch 1 item 5, effective 14 April 2010. For application and transitional provisions, see note under s 47.
SECTION 47AB
47AB
Other rules about payments of baby bonus
(Repealed by No 70 of 2013)
History
S 47AB repealed by No 70 of 2013, s 3 and Sch 2A item 37, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 47AB formerly read:
SECTION 47AB Other rules about payments of baby bonus
47AB
(Repealed by No 70 of 2013)
Rounding of payments
47AB(1)
If an amount to be paid under section 47 is not a whole number of cents, it must be rounded to the nearest cent (rounding 0.5 cents upwards).
History
S 47AB(1) amended by No 49 of 2012, s 3 and Sch 1 item 38, by omitting "or 47AA" after "section 47", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Relationship of section 47 with other provisions
47AB(2)
Section 47 is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
History
S 47AB(2) amended by No 39 of 2012, s 3 and Sch 1 item 40, by substituting "Section 47 is" for "Sections 47 and 47AA are", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 47AB inserted by No 45 of 2010, s 3 and Sch 1 item 5, effective 14 April 2010. For application and transitional provisions, see note under s 47.
SECTION 47A
Variation of determination where certain statements under section 38A made
47A(1)
If:
(a)
a TFN claim person has made a statement of the kind set out in subsection
38A(4); and
(b)
a determination is in force under which the claimant is entitled to be paid a stillborn baby payment allowance in normal circumstances; and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;
the consequence in subsection (3) applies.
History
S 47A(1) amended by No 70 of 2013, s 3 and Sch 2A item 38, by substituting "a stillborn baby payment" for "baby bonus" in para (b), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
S 47A(1) amended by No 49 of 2012, s 3 and Sch 1 item 41, by omitting "or maternity immunisation allowance" after "baby bonus" in para (b), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
47A(2)
If:
(a)
a TFN claim person has made a statement of the kind set out in subsection
38A(5); and
(b)
a determination is in force under which the claimant is entitled to be paid a stillborn baby payment in normal circumstances; and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;
the consequence in subsection (3) applies.
History
S 47A(2) amended by No 70 of 2013, s 3 and Sch 2A item 38, by substituting "a stillborn baby payment" for "baby bonus" in para (b), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
S 47A(2) amended by No 49 of 2012, s 3 and Sch 1 item 41, by omitting "or maternity immunisation allowance" after "baby bonus" in para (b), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
47A(3)
For the purposes of subsection (1) or (2), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid a stillborn baby payment.
History
S 47A(3) amended by No 70 of 2013, s 3 and Sch 2A item 39, by substituting "a stillborn baby payment" for "baby bonus", effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
S 47A(3) amended by No 49 of 2012, s 3 and Sch 1 item 42, by omitting "or maternity immunisation allowance, as the case may be" after "baby bonus", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
47A(4)
If:
(a)
under subsection (3), the Secretary varies the determination; and
(b)
the Secretary finds out the tax file number of the TFN claim person at any time after the variation took place;
the Secretary must vary the determination to undo the effect mentioned in subsection (3).
History
S 47A amended by No 82 of 2007, s 3 and Sch 6 item 33, by substituting "baby bonus" for "maternity payment" (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
S 47A amended by No 59 of 2004, s 3 and Sch 2 item 24, by substituting "maternity payment" for "maternity allowance" (wherever occurring). For saving provision, see note under Div 3 heading.
S 47A inserted by No 30 of 2003, s 3 and Sch 2 item 26, effective 15 April 2003.
SECTION 47B
47B
Claimant for payment of baby bonus to notify changes in care of the child
(Repealed by No 70 of 2013)
History
S 47B repealed by No 70 of 2013, s 3 and Sch 2A item 40, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 47B formerly read:
SECTION 47B Claimant for payment of baby bonus to notify changes in care of the child
47B(1)
This section applies if:
(a)
an individual makes a claim for payment of baby bonus in normal circumstances, based on eligibility for baby bonus under subsection 36(2) or (3) of the Family Assistance Act; and
(b)
there is a change in the care of the child after the individual makes the claim and before the end of the period of:
(i)
if the claim is based on eligibility for baby bonus under subsection 36(2) of that Act - 26 weeks beginning on the day of the child's birth; and
(ii)
if the claim is based on eligibility for baby bonus under subsection 36(3) of that Act - 26 weeks beginning on the day the child becomes entrusted to care as mentioned in paragraph 36(3)(b) of that Act; and
(c)
as a result of that change in care:
(i)
the child ceases to be an FTB child of the individual; or
(ii)
neither the individual nor the individual's partner is the primary carer of the child; and
(d)
before or after that change in care, the Secretary gives the individual a notice (the
entitlement notice
) under section 46 of this Act stating that the individual is entitled to be paid the baby bonus.
History
S 47B(1) amended by No 70 of 2013, s 3 and Sch 3 item 41, by substituting "becomes entrusted" for "is entrusted" in para (b)(ii), applicable in relation to a child becoming entrusted to the care of a person before, on or after 28 June 2013. However, the amendment does not affect the rights or liabilities arising between parties to a proceeding heard and finally determined by a court before 28 June 2013, to the extent that those rights or liabilities arose from, or were affected by, a child being entrusted to the care of a person.
S 47B(1) amended by No 105 of 2010, s 3 and Sch 1 item 29, by substituting para (c), effective 1 January 2011. Para (c) formerly read:
(c)
the child ceases to be an FTB child of the individual as a result of that change in care; and
47B(2)
The individual must notify the Secretary of that change in care:
(a)
in the manner set out in a written notice given to the individual under section 47C; and
(b)
as soon as practicable after:
(i)
if that change in care occurs before the individual receives the entitlement notice - receiving the entitlement notice; and
(ii)
if that change in care occurs after the individual receives the entitlement notice - that change in care.
S 47B inserted by No 38 of 2010, s 3 and Sch 6 item 1, applicable in relation to claims made on or after 1 July 2010.
SECTION 47C
47C
Secretary's power to approve a manner of notification
(Repealed by No 70 of 2013)
History
S 47C repealed by No 70 of 2013, s 3 and Sch 2A item 40, effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. S 47C formerly read:
SECTION 47C Secretary's power to approve a manner of notification
47C(1)
The Secretary must approve a manner of notification that an individual is to use when notifying the Secretary under section 47B of a change in care of a child.
47C(2)
The Secretary must, by written notice, notify the individual of the approved manner of notification.
S 47C inserted by No 38 of 2010, s 3 and Sch 6 item 1, applicable in relation to claims made on or after 1 July 2010.
Division 4 - Child care benefit
History
Div 4 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
History
Div 4 substituted by No 45 of 2000, s 3 Sch 2 item 60.
Act No 45 of 2000 contained the following transitional provisions:
Schedule 6 - Transitional provisions associated with the establishment of a scheme for the payment of child care benefit
SECTION 1 Definitions
1
In this Schedule, unless the contrary intention appears:
approved child care service
has the meaning given in subsection 3(1) of the Family Assistance Administration Act.
childcare assistance
means fee reductions made in respect of care provided before:
(a)
1 July 2000; or
(b)
on or after 1 July 2000, as provided for in this Schedule;
in compliance with:
(c)
the fee relief guidelines; or
(d)
a Commonwealth program, administered by the Commonwealth Department of Family and Community Services or the Commonwealth Services Delivery Agency, that provided for fee reductions, generally known as ``childcare assistance'' or ``fee relief''.
childcare assistance agreement
means an agreement, to which the Commonwealth is a party:
(a)
entered into under section 20 of the
Child Care Act 1972; or
(b)any other agreement, not being an agreement entered into under that Act;
that is made to provide grants to reimburse the costs of fee reductions.
childcare assistance scheme
means the Commonwealth program under which childcare assistance is paid.
child care rebate
means child care rebate payable under the Childcare Rebate Act 1993.
data collection form
means a written request to an individual from the Secretary for information relating to matters associated with the establishment of a scheme for payment of child care benefit.
family allowance
means family allowance payable under the Social Security Act 1991.
Family Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
Family Assistance Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
family assistance law
has the same meaning as in subsection 3(1) of the Family Assistance Administration Act.
fee relief guidelines
means the Childcare Assistance (Fee Relief) Guidelines made under section 12A of the Child Care Act 1972 as in force on 30 June 2000.
Secretary
, in relation to an act or thing done, or a decision or determination made, under particular legislation, means the Secretary of the Department administered by the Minister administering that legislation.
SECTION 2 Special rules relating to individual entitled to childcare assistance before 1 July 2000
2(1)
If, before 1 July 2000:
(a)
a decision has been made in respect of an individual and a child with the effect that the individual is entitled to childcare assistance in respect of the child; and
(b)
the individual has returned a completed data collection form to the Secretary by the date specified in the form;
then:
(c)
section
42 of the Family Assistance Act as amended by this Act and in force on 1 July 2000, is treated as being in force when the completed data collection form was returned; and
(d)
the individual is taken to be conditionally eligible under that section, as so in force, at the time that the form was returned.
2(2)
If:
(a)
determinations of conditional eligibility, CCB %, a weekly limit of hours and schooling %, would, apart from this subitem, come into force on 1 July 2000 in respect of the individual and the child; and
(b)
the individual has not remained entitled to childcare assistance in respect of the child for the period commencing on the day the data collection form is returned to the Secretary and ending on 30 June 2000;
the determinations do not come into force on 1 July 2000.
Note:
Determinations of conditional eligibility, a weekly limit of hours, CCB % and schooling % are made under sections 50F, 50H, 50J and 50K respectively of the Family Assistance Administration Act as amended by this Act and in force on 1 July 2000.
2(3)
If:
(a)
a requirement has been imposed before 1 July 2000 under the childcare assistance scheme in respect of the child of the individual; and
(b)
the requirement is that the child comply with the immunisation requirement; and
(c)
the child does not meet the requirement by 1 July 2000; and
(d)
immediately before 1 July 2000, less than 63 days have elapsed since the requirement was imposed;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(e)
section
57E of the Family Assistance Administration Act as so amended, and paragraph 42(1)(c) of the Family Assistance Act as so amended, are treated as having been in force when the requirement was imposed; and
(f)
the requirement is taken to have been imposed, at the time when it was imposed, under section
57E of the Family Assistance Administration Act as so amended and as so in force; and
(g)
the requirement is taken to have been imposed, at the time when it was imposed, for the purposes of paragraph 42(1)(c) of the Family Assistance Act as so amended and as so in force.
2(4)
If, immediately before 1 July 2000, the child is meeting the immunisation requirements set out in the childcare assistance scheme, then, on 1 July 2000, the child is taken to meet the immunisation requirements in section
6 of the Family Assistance Act, as amended by this Act and in force on that day.
SECTION 3 Special rules if individual claiming child care rebate and receiving family allowance returns data collection form
3(1)
If:
(a)
an individual makes a claim for childcare rebate in respect of a child within the period commencing on 1 January 1998 and ending on 30 June 2000; and
(b)
immediately before 1 July 2000, the individual is receiving family allowance in respect of the child; and
(c)
the individual returns a completed data collection form to the Secretary by the date specified in the form;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(d)
paragraph
49B(a) of the Family Assistance Administration Act, as so amended is treated as being in force when the completed data collection form is returned; and
(e)
the individual is taken to have made an effective claim under that paragraph, as so in force, at the time that the form was returned.
3(2)
If, immediately before 1 July 2000, the child is meeting the immunisation requirements set out in the
Childcare Rebate Act 1993, then, on I July 2000, the child is taken to meet the immunisation requirements in section
6 the Family Assistance Act as amended by this Act and in force on that day.
SECTION 4 Individuals may make a claim for child care benefit by fee reduction before 1 July 2000
4
If an individual makes a claim for child care benefit by fee reduction before 1 July 2000, then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(a)
paragraph
49B(a) of the Family Assistance Administration Act, as so amended is treated as being in force when the claim is made; and
(b)
the claim is taken to have been made, at the time that it was made, under that paragraph of that Act as so amended and in force.
SECTION 5 Minimum CCB % if individual objects to use of tax file number given previously
5(1)
This item applies to an individual referred to in subitems 2(1) and 3(1).
5(2)
If:
(a)
the tax file number of an individual to which this item applies has been provided to the Secretary:
(i)
by the individual; or
(ii)
by the partner of the individual; or
(iii)
by the Commissioner of Taxation on the authority of the individual; under:
(iv)
a provision of the Social Security Act 1991 for a purpose related to a claim for, or entitlement to, family allowance; or
(v)
the childcare assistance scheme for a purpose related to a claim for, or entitlement to, childcare assistance; and
(b)
the individual returns to the Secretary a completed data collection form by the date specified in the form; and
(c)
in that form, the individual objects to the use of the tax file number previously provided to the Secretary;
a determination of CCB % under section 50J of the Family Assistance Administration Act as amended by this Act and that would come into force on 1 July 2000 in respect of the individual, is to be calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %.
SECTION 6 Special rules relating to status of a child
6(1)
If:
(a)
immediately before 1 July 2000, a decision is in force under the childcare assistance scheme that a child is taken to be a dependent child; and
(b)
either:
(i)
under item 2, an individual is taken to be conditionally eligible for child care benefit by fee reduction in respect of the child; or
(ii)
under item 3, an individual is taken to have made an effective claim for child care benefit by fee reduction in respect of the child; or
(iii)
under item 4, an individual makes a claim for child care benefit by fee reduction in respect of the child;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(c)
the Family Assistance Act as so amended is treated as having been in force when the decision under paragraph (a) was made; and
(d)
the decision that the child is taken to be a dependent child is taken to have been a determination that the child is an FTB child of the individual made, at the time referred to in subitem (2), under subsection
42(2) of the Family Assistance Act as so amended and in force.
6(2)
The determination referred to in paragraph (1)(d) is taken to have been made on:
(a)
in the case of subparagraph (b)(i) - the day the individual is taken to be conditionally eligible immediately before the time the individual is taken to be so conditionally eligible; and
(b)
in the case of subparagraph (b)(ii) - the day the effective claim is taken to have been made; and
(c)
in the case of subparagraph (b)(iii) - the day the claim is made.
SECTION 7 Special rules relating to residence
7(1)
If:
(a)
immediately before 1 July 2000, a decision is in force under the childcare assistance scheme that an individual is taken to be a resident for childcare assistance purposes with effect that the individual is a resident on 1 July 2000; and
(b)
either:
(i)
under item 2, the individual is taken to be conditionally eligible for child care benefit by fee reduction; or
(ii)
under item 3, the individual is taken to have made an effective claim for child care benefit by fee reduction; or
(iii)
under item 4, an individual makes a claim for child care benefit by fee reduction;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(c)
the Family Assistance Act as so amended is treated as having been in force when the decision under paragraph (a) was made; and
(d)
the decision that the individual is a resident is taken to have been a determination made, at the time referred to in subitem (2), under section
8 of the Family Assistance Act as so amended and in force.
7(2)
The determination is taken to have been made on:
(a)
in the case of subparagraph (b)(i) - the day the individual is taken to be conditionally eligible, immediately before the time the individual is taken to be so conditionally eligible; and
(b)
in the case of subparagraph (b)(ii) - the day the effective claim is taken to have been made; and
(c)
in the case of subparagraph (b)(iii) - the day the claim is made.
SECTION 8 Special rules relating to tax file numbers provided for another purpose
8
If:
(a)
the tax file number of an individual has been provided to the Secretary:
(i)
by the individual; or
(ii)
by the partner of the individual; or
(iii)
by the Commissioner of Taxation on the authority of the individual; under:
(iv)
a provision of the Social Security Act 1991 for a purpose related to a claim for, or entitlement to, family allowance; or
(v)
the childcare assistance scheme; and
(b)
the individual returns to the Secretar
y a completed data collection form by the date specified in the form; and
(c)
in that form, the individual does not object to the use of the tax file number previously so provided to the Secretary;
that tax file number is taken to have been provided for the purposes of section 50B of the Family Assistance Administration Act, as amended by this Act and in force on 1 July 2000.
SECTION 9 Special rules relating to TFN requirements
9(1)
If:
(a)
an individual has been requested, before 1 July 2000, under section
75 of the
Social Security (Administration) Act 1999 or under the childcare assistance scheme, to provide a tax file number in relation to a claim for, or the receipt of, family allowance or childcare assistance; and
(b)
the individual has not, before that date, provided that tax file number; and
(c)
immediately before 1 July 2000, less than 28 days have elapsed since the request to provide that number;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(d)
the Family Assistance Act as so amended is treated as having been in force when the request was made; and
(e)
the request is taken to have been made, at the time when it was made, under section
57B of the Family Assistance Act as so amended and in force.
9(2)
If, under a decision made under the childcare assistance scheme, an individual has been exempted, before 1 July 2000, from having to meet the tax file number requirements of the scheme, then, for the purposes of the Family Assistance Administration Act, as amended by this Act:
(a)
that Act as so amended is treated as having been in force when the decision that the individual is exempt was made; and
(b)
the decision is taken to have been made, at the time the exemption under the childcare assistance scheme was given, under subsection 57B(6) of that Act as so amended and in force.
SECTION 10 Special rules relating to a childcare assistance agreement in force immediately before 1 July 2000
Agreement to which this item relates
10(1)
This item applies to a childcare assistance agreement that was in force immediately before 1 July 2000.
Agreement ceases to operate for grants for fee reductions after 1 July 2000 except in certain circumstances
10(2)
Except in the limited circumstances set out in subitem (3) or (4), on and after 1 July 2000, an agreement to which this item applies does not operate, in respect of a grant to reimburse the costs of fee reductions, in relation to care provided on or after 1 July 2000.
Matters in respect of which agreement continues to operate
10(3)
An agreement to which this item applies does operate, in respect of a grant to reimburse the costs of fee reductions, in relation to a session of care that started before 1 July 2000 and continued on that date.
Note 1:
Item 17 continues access to fee reductions under the childcare assistance scheme for care provided during a session of care that started immediately before 1 July 200 and continued on that date.
Note 2: In respect of care provided on 1 July 2000, this provision continues the agreement and, in particular, continues the obligations and responsibilities imposed under the agreement, in relation to that care.
10(4)
An agreement to which this item applies does operate, in respect of a grant to reimburse the costs of fee reductions, in relation to care provided on or after 1 July 2000, if the care is provided by an outside school hours care service during the period of a school vacation that starts before 1 July 2000 and continues on and after that day.
Note 1:
Item 18 continues access to fee reductions under the childcare assistance scheme for vacation care provided on and after 1 July 2000 if the vacation started before 1 July 2000.
Note 2: In respect of care provided on and after 1 July 2000, this provision continues the agreement and, in particular, continues the obligations and responsibilities imposed under the agreement, in relation to that care.
10(5)
On and after 1 July 2000, an agreement to which this item applies does operate, in respect of a grant to reimburse the costs of fee reductions, in relation to care provided before 1 July 2000.
Note:
In respect of care provided before 1 July 2000, this provision continues the agreement and, in particular, continues the obligations and responsibilities imposed under the agreement, in relation to that care.
10(6)
On and after 1 July 2000, an agreement to which this item applies operates for the purposes of other grants (if any) provided for in the agreement.
Commonwealth under no obligation to make further grants under agreement
10(7)
The operation of an agreement to which this item applies is limited in that the Commonwealth is under no obligation, on or after 1 July 2000, to make any further grants under the agreement to reimburse the costs of fee reductions.
Child Care Act, guidelines etc. to be treated as in force
10(8)
For the purposes of an agreement to which this item applies in so far as it relates to a grant to reimburse the costs of fee reductions, in relation to care provided as mentioned in subitems (3), (4) and (5):
(a)
on and after 1 July 2000, the
Child Care Act 1972 is treated as being in force as if the amendments made by Schedule <3 to the
A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 1) 1999 had not been made; and
(b)
if:
(i)
a handbook, guidelines or other document that relates to fee reductions created by a Commonwealth Department with the responsibility for administering the agreement is referred to in the agreement; and
(ii)
the handbook, guidelines or other document operates on 30 June 2000; the handbook, guidelines or other document is treated as operating on and after 1 July 2000.
SECTION 11 Childcare assistance agreement services to become approved child care services under section 195 of the Family Assistance Administration Act
Long day care services
11(1)
If:
(a)
a childcare assistance agreement is in force in respect of a long day care service immediately before 1 July 2000; and
(b)
the service is not, immediately before 1 July 2000, subject to a suspension under paragraph 4E(1)(d) of the
Child Care Act 1972;
the service is treated as being an approved centre based long day care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Family day care services
11(2)
If a childcare assistance agreement is in force in respect of a family day care service immediately before 1 July 2000, the service is treated as being an approved family day care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Occasional care services
11(3)
If a childcare assistance agreement is in force in respect of an occasional care service immediately before 1 July 2000, the service is treated as being an approved occasional care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Outside school hours care services
11(4)
If a childcare assistance agreement is in force in respect of an outside school hours care service immediately before 1 July 2000, the service is treated as being an approved outside school hours care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Requirement of subsection 195(3) of the Family Assistance Administration Act need not be complied with
11(5)
For an approved child care service referred to in subitems (1) to (4) (inclusive), the Secretary does not have to comply with the requirement in subsection
195(3) of the Family Assistance Administration Act as amended by this Act to give a certificate in respect of the service.
If long day care services subject to a sanction (other than suspension) on 30 June 2000, sanction carries over to child care benefit scheme
11(6)
If a long day care service is, immediately before 1 July 2000, subject to a sanction, other than suspension, under section 4E of the
Child Care Act 1972, the service is treated, on and after 1 July 2000, as being subject to the sanction under section
200 of the Family Assistance Administration Act as amended by this Act.
SECTION 12 Special condition of continuing approval of approved child care services referred to in item 11
12
If:
(a)
a service is treated, under item 11, as an approved child care service; and
(b)
item 10 applies to an agreement in respect of the service;
it is a condition for the continued approval of the approved child care service under section 195 of the Family Assistance Administration Act, as amended by this Act and in force on 1 July 2000, that the service not contravene an obligation imposed on the service under the agreement in respect of a grant to reimburse the costs of fee reductions, in relation to care mentioned in subitems 10(3), (4) and (5).
SECTION 13 Debts under childcare assistance agreements to be recoverable under the Family Assistance Administration Act
13(1)
If:
(a)
an amount (the
debt
), whether described as a debt or not, is to be repaid:
(i)
under a childcare assistance agreement to which item 10 applies; or
(ii)
under section 20B of the Child Care Act 1972 as in force immediately before 1 July 2000 in respect of an advance on account of a grant to reimburse the costs of fee reductions made for children; and
(b)
the debt relates to a grant to reimburse the costs of fee reductions for care mentioned in subitem (10)(3), (4) or (5);
the debt, whether it arises before, or on or after, 1 July 2000 is recoverable on or after 1 July 2000 under subsection 82(2) of the Family Assistance Administration Act as amended by this Act and in force on 1 July 2000.
13(2)
If the debt has been partially recovered under the childcare assistance scheme before 1 July 2000, the balance of the debt may be recovered under subsection
82(2) of the Family Assistance Administration Act as amended by this Act and in force on and after 1 July 2000.
SECTION 14 Minister may terminate childcare assistance agreements
14(1)
If:
(a)
a childcare assistance agreement was in force immediately before 1 July 2000; and
(b)
the agreement relates solely to a grant to reimburse the costs of fee reductions;
the Minister may, on or after 1 July 2000, determine, in writing, that the agreement is ended from a date specified in the determination.
14(2)
The determination has effect accordingly.
SECTION 15 Old sanctions to be taken into account by Secretary when considering applications under section 194 of the Family Assistance Administration Act
15
If:
(a)
a person applies under section 194 of the Family Assistance Administration Act as amended by this Act for approval of a child care service as an approved child care service for the purposes of the family assistance law; and
(b)
the person, when operating a child care service under the childcare assistance scheme, was subject to sanctions in respect of the service;
the Secretary may refuse to approve the service under subsection 195(2) of that Act as amended by this Act.
SECTION 16 Special rules relating to claims for childcare assistance
Claims for childcare assistance that are undetermined as at 1 July 2000
16(1)
If:
(a)
a person lodged a claim for childcare assistance in respect of care provided before 1 July 2000; and
(b)
that claim was not determined before that date;
the claim is to be determined after 1 July 2000 under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
Claims lodged after 1 July 2000
16(2)
Despite the termination of the childcare assistance scheme on 1 July 2000, a person may lodge a claim for childcare assistance before 8 July 2000 if the claim relates to care provided no more than 7 days before the claim is lodged. The claim is to be determined after 1 July 2000 under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
SECTION 17 Special rules relating to sessions of care
17
If a session of care, within the meaning of the childcare assistance scheme, provided by a child care service starts before 1 July 2000 and continues on 1 July 2000, a claim for childcare assistance in respect of the session is to be determined under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
SECTION 18 Special rules relating to vacation care
18
If a period of vacation care, within the meaning of the childcare assistance scheme, provided by a child care service starts before 1 July 2000 and continues on and after 1 July 2000, a claim for childcare assistance in respect of this care is to be determined under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
SECTION 19 Special rules relating to registered carers under section 49 of the Childcare Rebate Act
Most registered carers to be treated as registered carers under the child care benefits scheme
19(1)
If:
(a)
an individual was a registered carer under section 49 of the
Childcare Rebate Act 1993 immediately before 1 July 2000; and
(b)
the individual did not do any of the following things immediately before 1 July 2000:
(i)
operate a child care service that was the subject of a childcare assistance agreement;
(ii)
operate a child care service that was receiving financial assistance from the Commonwealth in connection with its operational costs, where the provision of that assistance is administered by the Commonwealth Department of Family and Community Services;
(iii)
provide child care under a contract with a family day care service that was the subject of a childcare assistance agreement;
the individual is to be treated as being approved as a registered carer under section 210 of the Family Assistance Administration Act, as amended by this Act and in force on 1 July 2000, with effect from that date.
Applications for registration as a carer under section 49 of the Childcare Rebate Act that are undetermined as at 1 July 2000
19(2)
If:
(a)
a person or body lodged an application for registration as a carer under section 49 of the
Childcare Rebate Act 1993 before 1 July 2000; and
(b)
that application was not determined before that date;
then:
(c)
the application is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if that Act, as so in force, had continued in force; and
(d)
if the registration (if any) relates to a person who is not an individual, the registration remains in force only in relation to care provided before 1 July 2000, or on or after 1 July 2000 as mentioned in subitems 20(3) and (4); and
(e)
for the purposes of subitem (1), if the registration (if any) relates to a person who is an individual, the individual is to be treated as being a registered carer before 1 July 2000.
Applications for registration as a carer under section 49 of the Childcare Rebate Act lodged after 1 July 2000
19(3)
Despite the repeal of the
Childcare Rebate Act 1993 on 1 July 2000
, a person or body may apply, on or after 1 July 2000 and before 1 January 2001, for registration as a carer under section 49 of that Act if the application relates to care provided as mentioned in subitem 20(2), (3) or (4). The application is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
SECTION 20 Special rules relating to claims for child care rebate
Claims for child care rebate that are undetermined as at 1 July 2000
20(1)
If:
(a)
a person lodged a claim for child care rebate before 1 July 2000; and
(b)
that claim was not determined before that date;
the claim is to be determined under the Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
Claims for child care rebate made after 1 July 2000 for care provided before 1 July 2000
20(2)
Despite the repeal of the
Childcare Rebate Act 1993 on 1 July 2000, a person may lodge a claim for child care rebate on or after 1 July 2000 and before 1 January 2001 if the claim relates to care provided during a period commencing 2 years before the claim was lodged and ending on 30 June 2000. The claim is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
20(3)
If a session of care provided by a child care service starts before 1 July 2000 and continues on 1 July 2000, a claim for child care rebate in respect of the session is to be determined under the
Childcare Rebate Act 1993 as in force immediately before 1 July 2000 as if the Act, as so in force, had continued in force.
20(4)
If a period of vacation care provided by an outside school hours care service starts before 1 July 2000 and continues on and after 1 July 2000, a claim for child care rebate in respect of this care is to be determined under the
Childcare Rebate Act 1993 as in force immediately before 1 July 2000 as if the Act, as so in force, had continued in force.
SECTION 21 Special rules relating to registration of families
Applications for registration of a family under section 19 of the Childcare Rebate Act that are undetermined as at 1 July 2000
21(1)
If:
(a)
an individual lodged an application for registration of a family under section 19 of the
Childcare Rebate Act 1993 before 1 July 2000; and
(b)
that application was not determined before that date;
the application is to be determined under the Childcare Rebate Act 1993, as in force before 1 July 2000, as if that Act, as so in force, had continued in force.
Applications for registration of a family under section 19 of the Childcare Rebate Act lodged after 1 July 2000
21(2)
Despite the repeal of the
Childcare Rebate Act 1993 on 1 July 2000, an individual may apply, on or after 1 July 2000 and before 1 January 2001, for a family to be registered under section 19 of that Act if the application relates to care provided as mentioned in subitem 20(2), (3) or (4). The application is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
SECTION 22 Health Insurance Commission's functions and powers in relation to child care rebate to continue for certain matters
22(1)
The Health Insurance Commission must deal with the following matters:
(a)
applications referred to in item 19;
(b)
claims referred to in item 20;
(c)
applications referred to in item 21;
(d)
matters arising in respect of those applications and claims (for example, applications for review);
under the Health Insurance Commission Act 1973 and the Childcare Rebate Act 1993 as if the following amendments to those Acts had not occurred:
(e)
the amendments of the
Health Insurance Commission Act 1973 by Schedule 8 to the
A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999;
(f)
the repeal of the
Childcare Rebate Act 1993.
22(2)
In respect of the Commission's powers under subitem (1), the Commission may, under subsection 55(3) of the
Childcare Rebate Act 1993 as continued in force, extend the period in which an application may be made for reconsideration of a decision listed in section 53 of that Act, but only until 30 June 2001.
SECTION 23 Other transitional matters may be provided for in regulations
23
The Governor-General may make regulations, not inconsistent with this Schedule, the Family Assistance Administration Act and the Family Assistance Act prescribing other transitional matters, apart from transitional matters provided for in this Schedule, that are necessary or convenient for carrying out or giving effect to the introduction of child care benefit under the family assistance law.
Div 4 formerly read:
Subdivision A - Regulations
SECTION 48 Overview
48
Basically, this Division provides for the making of regulations about how individuals and approved child care services can become entitled to have payments of child care benefit made, and how such payments are to be made.
SECTION 49 Determinations about eligibility for child care benefit by instalment for care provided by approved child care services in normal circumstances
49(1)
The regulations may prescribe circumstances in which, and procedures (which may require the making of claims) by which:
(a)
individuals who are conditionally eligible for child care benefit by instalment to an approved child care service in accordance with section 41 of the Family Assistance Act are to be determined by the Secretary to be so conditionally eligible; or
(b)
individuals who are eligible for child care benefit by instalment to an approved child care service in accordance with section 42 of that Act are to be determined by the Secretary to be entitled to have child care benefit paid to the service.
49(2)
If the regulations make provision in accordance with paragraph (1)(a), the regulations may make provision for the conditional eligibility to be removed if the child concerned does not, in specified circumstances, meet the immunisation requirements.
SECTION 50 Determinations about eligibility for child care benefit for past periods for care provided by approved child care services in normal circumstances
50
The regulations may prescribe circumstances in which, and procedures (which may require the making of claims) by which, individuals who are eligible for child care benefit in respect of a session of care provided to a child by an approved child care service in accordance with section 43 of the Family Assistance Act are to be determined by the Secretary to be entitled to be paid child care benefit.
SECTION 51 Determinations about eligibility for child care benefit for care provided by approved child care services in special circumstances
51
The regulations may prescribe circumstances in which, and procedures (which may require the making of claims) by which:
(a)
approved child care services that are eligible for child care benefit for sessions of care provided by the service to a child in accordance with section 45 of the Family Assistance Act are to be determined by the Secretary to be entitled to be paid child care benefit; or
(b)
approved child care services that are conditionally eligible for child care benefit by instalment in accordance with section 46 of that Act are to be determined by the Secretary to be so conditionally eligible; or
(c)
approved child care services that are eligible for child care benefit by instalment in accordance with section 47 of that Act are to be determined by the Secretary to be entitled to be paid child care benefit.
SECTION 52 Determinations about eligibility for child care benefit for past periods of care provided by registered carers
52
The regulations may prescribe circumstances in which, and procedures (which may require the making of claims) by which, individuals who are eligible for child care benefit in accordance with section 49 of the Family Assistance Act are to be determined by the Secretary to be entitled to be paid child care benefit.
SECTION 53 Claims and determinations about eligibility for amounts of child care benefit where death occurs
53
The regulations may:
(a)
prescribe circumstances in which, and procedures by which, individuals may make claims stating that they wish to become eligible for an amount of child care benefit in accordance with section 57 of the Family Assistance Act; and
(b)
prescribe circumstances in which, and procedures by which, individuals who make such claims and become so eligible are to be determined by the Secretary to be entitled to be paid the amount of the child care benefit.
SECTION 54 Estimates of adjusted taxable income
54
The regulations may make provision for the use of estimates of adjusted taxable income in making determinations of entitlements relating to child care benefit.
SECTION 55 Making of payments
55(1)
If the regulations make provision in accordance with sections 49 to 53 for individuals or approved child care services to become entitled to be paid, or to have paid, child care benefit, the regulations may make provision for the amount, timing and manner of making of the payments.
55(2)
Without limiting subsection (1), regulations under that subsection may provide for any individual who becomes entitled to be paid child care benefit to nominate another individual to whom the benefit is to be paid, with the consent of that other individual.
SECTION 56 Variation etc of determinations
56(1)
The regulations may make provision for the variation, suspension or cancellation of determinations made under the regulations.
Reconciliation process etc changes to determinations
56(2)
Without limiting subsection (1), if the regulations make provision in accordance with section 54 for the use of estimates of adjusted taxable income in making determinations of entitlements relating to child care benefit, the regulations may make provision for the variation, suspension or cancellation, as part of a process of reconciliation of amounts after the end of the income year concerned or in other situations, of the determinations once assessments have been made of the taxable income.
Exemptions from reconciliation process etc changes in ``special circumstances'' rate cases
56(3)
Without limiting subsection (2), regulations for the purposes of that subsection may provide, in specified circumstances, for exemptions in the case of entitlements of approved child care services to be paid child care benefit, or of individuals to have child care benefit paid to approved child care services, in situations where the approved child care services have given certificates under subsection 71(1) or (2), or the Secretary has made determinations under subsection 71(4), of the Family Assistance Act (which deal with child care benefit in special circumstances).
SECTION 57 Passing on child care benefit by way of reduced charges etc
57(1)
The regulations may make provision for approved child care services, that have been or will be paid amounts of child care benefit for sessions of care that the services provide, to do either or both of the following:
(a)
reduce or not charge the amounts that the services would otherwise charge for the sessions;
(b)
make payments to persons who have paid charges for the sessions;
in order to pass the benefit of the child care benefit on to the persons who pay or would be liable to pay the charges.
Receipts etc
57(2)
If the regulations make provision in accordance with subsection (1), the regulations may also make provision for the approved child care services to give the person who pays or would otherwise pay the charges a receipt or other document stating the following:
(a)
the amount of the charges or that there were no charges;
(b)
what the charges would have been if the reduction had not taken place;
(c)
how much child care benefit was passed on in reducing the charges;
(d)
any other information of a specified kind in relation to the sessions of care the services provided.
SECTION 58 Record keeping obligations
Maintaining records
58(1)
The regulations may make provision for approved child care services to maintain records of a specified kind that are relevant to one or more of the following:
(a)
the services' eligibility for child care benefit under this Act;
(b)
the payments received by the services under this Act;
(c)
the services' compliance with the conditions for the continued approval of the services;
(d)
any other matters of a specified kind in relation to the services.
Retaining records
58(2)
The regulations may make provision for approved child care services to retain for a specified period any records that are required to be maintained by regulations for the purposes of subsection (1).
Producing records
58(3)
The regulations may make provision for approved child care services to produce to the Secretary in specified circumstances any records that are required to be retained by regulations for the purposes of subsection (1).
SECTION 59 Provision of information to Secretary
Information about changes in circumstances
59(1)
The regulations may make provision for the giving of information to the Secretary, by individuals or approved child care services who have become entitled to be paid child care benefit, or to have child care benefit paid, under the regulations, about changes in:
(a)
circumstances that may be relevant to their entitlement; or
(b)
their address.
Information about changes in service used
59(2)
If the regulations make provision in accordance with paragraph 49(1)(a) for the Secretary to determine that individuals are conditionally eligible for child care benefit by instalment to an approved child care service, the regulations may make provision for the individuals to advise the Secretary of the name and address of any other approved child care service that begins to provide sessions of care for the child.
Information about children cared for by services
59(3)
The regulations may make provision for approved child care services to give the Secretary the following information, in a specified form and manner and at a specified time:
(a)
the names of all children to whom the services provided sessions of care during specified periods;
(b)
the number of hours in those sessions of care;
(c)
the amount of child care benefit that the services have been or will be paid in respect of those sessions of care and the children to whom the amounts relate;
(d)
any other information of a specified kind in relation to the services.
SECTION 60 Provision of tax file numbers to Secretary in claims or in documents given together with claims
60(1)
If the regulations make provision in accordance with section 49, 50, 52 or 53 for the making of claims in relation to child care benefit, the regulations may make provision for individuals who are claimants, or partners of claimants, to include in the claim, or in a document in a specified form given to the Secretary together with the claim, a statement of any of the kinds set out in subsection (2), (3) or (4).
Statement of tax file number
60(2)
The first kind of statement is a statement of the tax file number of the individual.
Statement that individual does not know what his or her tax file number is etc
60(3)
The second kind of statement is a statement that the individual:
(a)
has a tax file number but does not know what it is; and
(b)
has asked the Commissioner of Taxation to inform the individual of his or her tax file number; and
(c)
authorises the Commissioner of Taxation to tell the Secretary:
(i)
whether the individual has a tax file number; and
(ii)
if the individual has a tax file number - that number.
Statement that an application for a tax file number is pending
60(4)
The third kind of statement is a statement that the individual:
(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 individual - 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.
Exemption from requirement under subsection (1)
60(5)
If the regulations make provision in accordance with subsection (1), the regulations may also make provision for the Secretary to determine that the requirement mentioned in that subsection does not apply to partners of claimants if the claimants cannot obtain from their partners:
(a)
the tax file number of their partners; or
(b)
a statement by the partners under subsection (2), (3) or (4).
Consequences of failure to provide tax file number etc
60(6)
If the regulations make provision in accordance with subsection (1), the regulations may also make provision for determinations not to be made in relation to the claims in specified circumstances where statements of the kind mentioned in subsection (3) or (4) are made.
SECTION 61 Secretary's power to request tax file numbers
61(1)
If the regulations make provision for determinations to be made:
(a)
in accordance with paragraph 49(1)(a), that individuals are conditionally eligible for child care benefit by instalment to an approved child care service; or
(b)
in accordance with section 50, 52 or 53, that individuals are entitled to be paid child care benefit;
the regulations may make provision for the Secretary to request, but not compel, the individuals to give the Secretary, within 28 days of the request being made, a statement by the individuals, or by other individuals who are or have been their partners, of any of the kinds mentioned in subsection 60(2), (3) or (4).
61(2)
If the regulations make provision in accordance with subsection (1), the regulations may also make provision for:
(a)
in a paragraph (1)(a) case - the conditional eligibility to be removed; or
(b)
in a paragraph (1)(b) case - variation of the determination to remove the entitlement;
in cases where the request is not complied with or other specified circumstances exist in relation to the request.
SECTION 62 Enforcement of information etc requirements
62
Without limiting the power under subsection 235(1) for the regulations to prescribe penalties for breaches of the regulations, the regulations may provide for the Secretary to vary determinations made in accordance with regulations under this Subdivision in specified circumstances where information is not provided, or other things are not done, in accordance with regulations under this Subdivision.
SECTION 63 Other matters
63
Without limiting sections 49 to 59, the regulations may make provision for the following:
(a)
the giving of notice that determinations made under regulations for the purposes of this Subdivision have been made;
(b)
the content of such notice;
(c)
the period in which determinations made under regulations for the purposes of this Subdivision are to be in force;
(d)
the reduction of any entitlements to payments of child care benefit under such determinations on account of debts in respect of child care benefit owed by the individuals or approved child care services to the Commonwealth;
(e)
the making to approved child care services of advance payments to be set off against later entitlements in relation to payments of child care benefit;
(f)
any other matter incidental or otherwise related to anything about which regulations can be made under this Division.
Subdivision B - Offences
SECTION 64 Provision of instalment statements where individual conditionally eligible for child care benefit by instalment
64(1)
If, during the whole or part of an instalment period, a determination under regulations in accordance with paragraph 49(1)(a) is in force, the approved child care service concerned must give the Secretary, during the next instalment period, the statement, details and any other information mentioned in paragraph 42(1)(b) of the Family Assistance Act.
64(2)
A person who, without reasonable excuse, contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 60 penalty units.
SECTION 65 Provision of instalment statements where approved child care service conditionally eligible for child care benefit by instalment
65(1)
If, during the whole or part of an instalment period, a determination under regulations in accordance with paragraph 51(b) is in force, the approved child care service concerned must give the Secretary, during the next instalment period, the statement, details and any other information mentioned in paragraph 47(1)(b) of the Family Assistance Act.
65(2)
A person who, without reasonable excuse, contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
Subdivision A - Overview of process of fee reductions
History
Subdiv A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv A substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of Subdiv A see history note under Pt 3 Div 4 heading.
SECTION 48
48
Overview of process if individual is conditionally eligible for child care benefit by fee reduction
(Repealed by No 22 of 2017)
History
S 48 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 48 formerly read:
SECTION 48 Overview of process if individual is conditionally eligible for child care benefit by fee reduction
48(1)
An approved child care service is obliged to notify the Secretary if an individual enrols a child for care by the service.
48(2)
Once that enrolment is confirmed by the Secretary, the service is obliged to give weekly reports to the Secretary about the care provided to the child.
48(3)
If a report is given, and a determination of conditional eligibility under section 50F is in force in respect of an individual and a child with the effect that the individual is conditionally eligible for child care benefit by fee reduction for care provided by the approved child care service to the child in a week, the Secretary will calculate the amount by which the fees charged by the service for the care are to be reduced.
48(4)
The amount by which the fees are to be reduced is referable to the amount of child care benefit that would be paid in respect of the sessions if entitlement to an amount of child care benefit was determined under section 51B in respect of the income year in which the week falls. The amount of fee reduction is calculated by the Secretary using the provisions of the Family Assistance Act.
48(5)
The service must pass on to the individual the amount of the fee reduction calculated by the Secretary. If the service has already reduced the amount of fees charged to the individual for care provided to the child in anticipation of the calculation by the Secretary, the service is taken to have passed on a fee reduction equal to the amount by which the fees have already been reduced.
48(6)
When the determination of entitlement is made, if the amount of the entitlement is greater than the amount of the fee reductions already received by the individual in respect of the sessions in the income year, the amount of the entitlement consists of the amount of the difference together with the amount of fee reductions received by the individual.
48(7)
When the determination of entitlement is made, if the amount of the entitlement is less than the amount of the fee reductions already received by the individual in respect of the sessions in the income year, the amount of the entitlement is the amount of the fee reductions less the amount of the difference.
48(8)
Payments in respect of fee reduction are made to the service by the Secretary to enable the service to pass on to the individual the amount of fee reductions as calculated (see Division 2 of Part 8A).
S 48 substituted by No 118 of 2007, s 3 and Sch 1 item 11, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 48 formerly read:
SECTION 48 Overview of process if individual is conditionally eligible for child care benefit by fee reductions
48(1)
If a determination of conditional eligibility under section 50F is in force during an income year in respect of an individual and a child with the effect that the individual is conditionally eligible for child care benefit by fee reduction for care provided by an approved child care service to the child, the individual's fees for sessions of care provided by an approved child care service to the child while the determination is in force with that effect are reduced by the service.
48(2)
The amount by which the fees are reduced is referable to the amount of child care benefit that would be paid in respect of the sessions if entitlement to an amount of child care benefit was determined under section 51B on the day the fees are reduced. The amount of fee reduction is calculated by the service using the provisions of the Family Assistance Act.
48(3)
The fees are reduced in anticipation of a determination of entitlement to be paid child care benefit by fee reduction being made under section 51B in respect of the individual, the child, the sessions and the income year.
48(4)
When the determination of entitlement is made, if the amount of the entitlement is greater than the amount of the fee reductions already received by the individual in respect of the sessions in the income year, the amount of the entitlement consists of the amount of the difference together with the amount of fee reductions received by the individual.
48(5)
When the determination of entitlement is made, if the amount of the entitlement is less than the amount of the fee reductions already received by the individual in respect of the sessions in the income year, the amount of the entitlement is the amount of the fee reductions less the amount of the difference.
48(6)
To reimburse the service the amount of the fee reductions made for care provided by the service to the child, the service receives an advance (see Division 2 of Part 8A).
S 48 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of S 48 see history note under Pt 3 Div 4 heading.
Subdivision B - Making claims
History
Subdiv B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 49
49
Need for a claim
(Repealed by No 22 of 2017)
History
S 49 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49 formerly read:
SECTION 49 Need for a claim
49(1)
Except in the case set out in subsection (2), the only way that a person can become entitled to be paid child care benefit is to make a claim in accordance with this Subdivision.
49(2)
If an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the service to a child at risk, the service (a
claimant
) is taken to have made a claim for payment of child care benefit by fee reduction for the care provided by the service to the child. The claim is taken to be made on the first day that the service reports to the Secretary in respect of that eligibility.
S 49 inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of S 49 see history note under Pt 3 Div 4 heading.
SECTION 49A
49A
Who can make a claim
(Repealed by No 22 of 2017)
History
S 49A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49A formerly read:
SECTION 49A Who can make a claim
49A(1)
The only persons who can make a claim in accordance with this Subdivision are individuals.
49A(2)
An approved child care service that is eligible under section 47 of the Family Assistance Act is, under subsection 49(2), taken to have made a claim.
S 49A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49B
49B
What may be claimed by an individual
(Repealed by No 22 of 2017)
History
S 49B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49B formerly read:
SECTION 49B What may be claimed by an individual
49B
An individual (a
claimant
) may make a claim:
(a)
for payment of child care benefit by fee reduction for care provided by an approved child care service; or
(b)
for payment of child care benefit for a past period for care provided by an approved child care service; or
(c)
for payment of child care benefit for a past period for care provided by a registered carer; or
(d)
for payment of child care benefit by single payment/in substitution because of the death of another individual.
S 49B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49C
49C
Form etc. of effective claim by individual
(Repealed by No 22 of 2017)
History
S 49C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49C formerly read:
SECTION 49C Form etc. of effective claim by individual
Requirements for claim by individual to be effective
49C(1)
To be effective:
(a)
a claim (other than a claim that is taken to be made under subsection 49(2)) must:
(i)
be made in a form and manner; and
(ii)
subject to subsections (2), (3), (4) and (6), contain any information; and
(iii)
be accompanied by any documents;
required by the Secretary; and
(b)
the bank account requirement set out in section 49G must be satisfied in relation to the claim; and
(c)
in the case of a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service - the tax file number requirement in section 49E must be satisfied in relation to the claim; and
(d)
in the case of a claim by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service - the tax file number requirement in section 49F must be satisfied in relation to the claim.
History
S 49C(1) amended by No 25 of 2011, s 3 and Sch 1 item 11, by substituting ", (4) and (6)," for "and (4)," in para (a)(ii), applicable in relation to income years beginning on or after 1 July 2011. No 25 of 2011, s 3 and Sch 1 item 78 contains the following transitional provisions:
78 Transitional - elections made before 1 July 2011
(1)
This item applies if an individual gives the Secretary notice, by the time and in the form and manner or way approved by the Secretary, electing to have child care rebate in respect of the individual and a child for care provided for the child in the 2011-2012 income year paid in one of the following ways:
(a)
weekly into a bank account maintained by the individual alone or jointly or in common with someone else;
(b)
weekly to one or more approved child care services;
(c)
quarterly into a bank account maintained by the individual alone or jointly or in common with someone else.
(2)
For the purposes of the Family Assistance Act and the Family Assistance Administration Act:
(a)
if the notice is of the kind described in paragraph (1)(a) of this item - the individual is taken to have given notice under paragraph 65EAAAA(1)(a) of the Family Assistance Administration Act in relation to the 2011-2012 income year; and
(b)
if the notice is of the kind described in paragraph (1)(b) of this item - the individual is taken to have given notice under paragraph 65EAAAA(1)(b) of the Family Assistance Administration Act in relation to the 2011-2012 income year; and
(c)
if the notice is of the kind described in paragraph (1)(c) of this item - the individual is taken to have given notice under paragraph 65EAAAA(1)(c) of the Family Assistance Administration Act in relation to the 2011-2012 income year.
(3)
If an individual does not give notice of the kind described in subitem 1, child care rebate (if any) in respect of the individual and the child for care provided during the 2011-2012 income year is to be paid:
(a)
if child care rebate was paid quarterly in respect of the individual and the child in relation to the 2010-2011 income year-quarterly; and
(b)
otherwise - for the income year.
(4)
To avoid doubt, this item applies even if the Secretary approves the time, the form or the manner or way, in which the election is to be given before the day on which this item commences.
Exemption from part of information requirement when claimant making a claim for payment of child care benefit by fee reduction
49C(2)
Subject to section 49H, a claim for payment of child care benefit by fee reduction for care provided by an approved child care service to a child will be effective even though the claimant does not provide all, or some, of the following information:
(a)
information about any amount needed by the Secretary to calculate the CCB % applicable to the claimant in respect of the child;
(b)
information needed to work out the number of children the claimant has in care of a particular kind;
(c)
information as to whether the child is a school child;
(ca)
information needed by the Secretary to determine the claimant's eligibility for the special grandparent rate in respect of the child;
(d)
information required for checking compliance with paragraph 42(1)(c) of the Family Assistance Act (dealing with immunisation);
(e)
the following information:
(i)
information relating to the claimant's, and the claimant's partner's (if any), tax file number requested under section 57B;
(ii)
information relating to whether the claimant is opting to have a CCB % of zero % applicable to him or her.
History
S 49C(2) amended by No 53 of 2008, s 3 and Sch 1 item 17, by substituting "a CCB % of zero % applicable to him or her" for "the CCB % applicable to him or her calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 49C(2) amended by No 132 of 2004, s 3 and Sch 4 item 14, by inserting para (ca), applicable to sessions of care provided in a week that commences after 1 January 2005.
Exemption from part of information requirement when claimant making a claim for payment of child care benefit for a past period for care provided by an approved child care service
49C(3)
Subject to section 49J, a claim for payment of child care benefit for a past period for care provided by an approved child care service to a child will be effective even though the claimant does not provide all, or some, of the following information:
(a)
information about the amount needed by the Secretary to calculate the CCB % applicable to the claimant in respect of the child;
(b)
information needed to work out the number of children the claimant had in care of a particular kind;
(c)
information as to whether the child was a school child.
Exemption from part of information requirement when claimant making a claim for payment of child care benefit by single payment/in substitution for care provided by an approved child care service
49C(4)
Subject to section 49L, a claim for payment of child care benefit by single payment/in substitution for care provided by an approved child care service to a child because of the death of another individual will be effective even though the claimant does not provide all, or some, of the following information:
(a)
information about any amount needed by the Secretary to calculate the CCB % applicable to the other individual in respect of the child;
(b)
information needed to work out the number of children the other individual had in care of a particular kind;
(c)
information as to whether the child was a school child.
49C(5)
The information or documents required by the Secretary under paragraph (1)(a) may include information or documents relevant to:
(a)
whether the claimant is eligible for child care rebate; and
(b)
the amount of child care rebate applicable in respect of the claimant; and
(c)
determining any other matter in relation to the payment of child care rebate to the claimant.
History
S 49C(5) inserted by No 25 of 2011, s 3 and Sch 1 item 12, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
49C(6)
A claim for payment of child care benefit by fee reduction for care provided by an approved child care service to a child will be effective even if the claimant does not make an election under section 65EAAAA in relation to the care (weekly or quarterly payments of child care rebate).
History
S 49C(6) inserted by No 25 of 2011, s 3 and Sch 1 item 12, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 49C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49D
49D
Deemed claim under subsection 49(2) effective in certain circumstances
(Repealed by No 22 of 2017)
History
S 49D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49D formerly read:
SECTION 49D Deemed claim under subsection 49(2) effective in certain circumstances
49D(1)
Subject to section 49M, if a claim by an approved child care service is taken to have been made under subsection 49(2), the claim is taken to be effective if the service's eligibility under section 47 of the Family Assistance Act is reported by the service to the Secretary.
Form of report required
49D(2)
The report must:
(a)
be made in a form and manner; and
(b)
contain any information; and
(c)
be accompanied by any documents;
required by the Secretary.
S 49D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49E
49E
Tax file number requirement to be satisfied for claim by individual for payment of child care benefit for a past period for care provided by an approved child care service to be effective
(Repealed by No 22 of 2017)
History
S 49E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49E formerly read:
SECTION 49E Tax file number requirement to be satisfied for claim by individual for payment of child care benefit for a past period for care provided by an approved child care service to be effective
49E(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service. The requirement is for the purposes of paragraph 49C(1)(c) (which states what is required for these kinds of claims to be effective).
49E(2)
The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN claim person. However, the requirement does not apply in relation to a TFN claim person if a determination is in force under subsection (7) in relation to the person, or the person has opted as set out in subsection (8).
Statement of tax file number
49E(3)
The first kind of statement that can be made is a statement of the TFN claim person's tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.
Statement that TFN claim person does not know what his or her tax file number is etc.
49E(4)
The second kind of statement that can be made is a statement by the TFN claim person 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
49E(5)
The third kind of statement that can be made is a statement by the TFN claim person 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.
How statement to be given
49E(6)
A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement if Secretary determines
49E(7)
The Secretary may determine that the requirement in subsection (2) does not apply to a TFN claim person if:
(a)
the person is, or was, the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection (4) or (5).
Exemption from tax file number requirement if claimant opts for certain things in the claim form
49E(8)
The requirement in subsection (2) does not apply to a TFN claim person if, in the claim, the person opted to have a CCB % of zero % applicable to him or her.
History
S 49E(8) amended by No 53 of 2008, s 3 and Sch 1 item 18, by substituting "a CCB % of zero % applicable to him or her" for "the CCB % applicable to him or her calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 49E(8) amended by No 53 of 2008, s 3 and Sch 1 item 18, by substituting "a CCB % of zero % applicable to him or her" for "the CCB % applicable to him or her calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 49E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49F
49F
Tax file number requirement to be satisfied for claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual to be effective
(Repealed by No 22 of 2017)
History
S 49F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49F formerly read:
SECTION 49F Tax file number requirement to be satisfied for claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual to be effective
49F(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual. The requirement is for the purposes of paragraph 49C(1)(d) (which states what is required for these kinds of claims to be effective).
49F(2)
The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN substitution person. However, the requirement does not apply in relation to a TFN substitution person if a determination is in force under subsection (7) or (8), or the claimant has opted as set out in subsection (9).
Statement of tax file number
49F(3)
The first kind of statement that can be made is a statement of a TFN substitution person's tax file number. Regardless of who the TFN substitution person is, this kind of statement can be made by the claimant only.
Statement that TFN substitution person does not know what his or her tax file number is
49F(4)
The second kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual's partner (as referred to in paragraph (b) of the definition of
TFN substitution person
in subsection 3(1)) that the TFN substitution 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
49F(5)
The third kind of statement that can be made is a statement by the TFN substitution person who was the deceased individual's partner (as referred to in paragraph (b) of the definition of
TFN substitution person
in subsection 3(1)) that the TFN substitution 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.
How statement to be given
49F(6)
A statement made by the claimant must be made in the claim. A statement made by a TFN substitution person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement
49F(7)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant does not know the person's tax file number.
49F(8)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant cannot obtain a statement referred to in subsection (4) or (5) in respect of the person.
49F(9)
The requirement in subsection (2) does not apply in relation to a TFN substitution person if, in the claim, the claimant opted to have a CCB % of zero % applicable to the person.
History
S 49F(9) amended by No 53 of 2008, s 3 and Sch 1 item 19, by substituting "a CCB % of Zero % applicable to the person" for "the CCB % applicable to the person calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 49F inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49G
49G
Bank account details or statement to be provided for claims by individuals for child care benefit to be effective
(Repealed by No 22 of 2017)
History
S 49G repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49G formerly read:
SECTION 49G Bank account details or statement to be provided for claims by individuals for child care benefit to be effective
49G(1)
This section sets out the bank account requirement that must be satisfied in relation to a claim by an individual for payment of child care benefit for the purposes of paragraph 49C(1)(b) (which states what is required for claims by individuals for child care benefit to be effective).
Requirement concerning bank account details
49G(2)
The requirement is that the claimant provide:
(a)
details of a bank account maintained by the claimant alone or jointly or in common with someone else into which are to be paid:
(i)
amounts of child care benefit; or
(ii)
in the case of child care benefit by fee reduction - the amount of the difference referred to in subsection 56(1); or
(b)
a statement that the claimant will nominate, and provide details of, such a bank account, within 28 days after the claim is made.
How details or statement to be given
49G(3)
The bank account details or statement must be provided in the claim.
Exemption from bank account requirement
49G(4)
The Secretary may determine that the requirement in subsection (2) does not apply to a claimant if the Secretary considers that it is appropriate to exempt the claimant from the requirement.
S 49G inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49H
49H
Restrictions on claims by an individual for payment of child care benefit by fee reduction
(Repealed by No 22 of 2017)
History
S 49H repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49H formerly read:
SECTION 49H Restrictions on claims by an individual for payment of child care benefit by fee reduction
Claims to which section applies
49H(1)
This section applies to a claim by an individual for payment of child care benefit by fee reduction for care provided by an approved child care service to a child (a
fee reduction claim
).
Previous claim by individual for child care benefit by fee reduction and a conditional eligibility determination has not been made or claimant already conditionally eligible
49H(2)
A fee reduction claim is ineffective if at the time (the
determination time
) when the conditional eligibility of the claimant would be determined:
(a)
the claimant has previously made a claim for child care benefit by fee reduction in respect of the child; and
(b)
either:
(i)
a determination of conditional eligibility under section 50F, or of no entitlement under section 50G, has not as yet been made in respect of the previous claim; or
(ii)
as a result of the previous claim, a determination is in force that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.
Previous claim by individual for child care benefit by fee reduction, a conditional eligibility determination is in force but varied with effect that the claimant is not conditionally eligible and the variation can be undone
49H(3)
A fee reduction claim is ineffective if:
(a)
at the determination time:
(i)
the claimant has previously made a claim for child care benefit by fee reduction in respect of the child; and
(ii)
a determination that the claimant is conditionally eligible for child care benefit by fee reduction is in force in respect of the previous claim; and
(iii)
that determination has been varied under section 58A, 61A or 62 with the effect that the claimant is not conditionally eligible for any session of care provided to the child after the determination time; and
(b)
the determination time is before the end of the income year following the one in which the variation took effect.
Approved child care service is already eligible for child care benefit by fee reduction for care provided to a child at risk
49H(4)
A fee reduction claim is ineffective if, at the determination time, an approved child care service is eligible for child care benefit by fee reduction for care provided by the service to that child.
Restriction in subsection (4) not to apply in certain circumstances
49H(5)
Subsection (4) does not apply to a claim if, in the special circumstances of the claim, the Secretary considers that subsection (4) should not apply.
S 49H inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49J
49J
Restrictions on claim by individual for payment of child care benefit for past period for care provided by an approved child care service
(Repealed by No 22 of 2017)
History
S 49J repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49J formerly read:
SECTION 49J Restrictions on claim by individual for payment of child care benefit for past period for care provided by an approved child care service
Claims to which section applies
49J(1)
This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service to a child (a
past period claim
).
Claim period must fall within one income year etc.
49J(2)
A past period claim is ineffective if:
(a)
the period does not fall wholly within one income year; or
(b)
the period does fall wholly within one income year (the
relevant income year
) but the claim is made before the end of the relevant income year or after the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the claim before the end of that first income year.
History
S 49J(2) amended by No 70 of 2013, s 3 and Sch 2B item 37, by substituting para (b), applicable in relation to a past period falling in the 2012-13 income year or a later income year. Para (b) formerly read:
(b)
the period does fall wholly within one income year but the claim is made before the end of that income year or after the end of the 2 income years immediately following that income year.
S 49J(2) amended by No 33 of 2004, s 3 and Sch 1 items 3 and 6, by substituting "2 income years immediately following that income year" for "following income year" in para (b), applicable to a claim for payment of child care benefit made either before or after the commencement of this Part, if the claim is for a past period that falls wholly within the income year beginning on 1 July 2001 or any later income year.
49J(2A)
The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 49J(2A) inserted by No 70 of 2013, s 3 and Sch 2B item 38, applicable in relation to a past period falling in the 2012-13 income year or a later income year.
Previous claim by claimant for care provided by an approved child care service for any part of the past period
49J(3)
A past period claim is ineffective if the claimant has previously made a claim for payment of child care benefit for care provided byan approved child care service to the child for any part of the past period (whether or not the claim has been determined).
Subsection (3) does not apply if previous claim by claimant and claimant not entitled for failing to meet a condition in paragraph 44(1)(a), (d) or (e) of the Family Assistance Act
49J(4)
Subsection (3) does not apply if:
(a)
the claimant has previously made a claim for payment of child care benefit for care provided to the child in the past period by an approved child care service; and
(b)
the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the claimant was not eligible under section 44 of the Family Assistance Act; and
(c)
the reason the claimant was not eligible was because the claimant failed to meet the condition in paragraph 44(1)(a), (d) or (e) of that Act.
Individual already conditionally eligible for child care benefit by fee reduction
49J(5)
A past period claim is ineffective if, at any time during the past period, a determination that the claimant was conditionally eligible for child care benefit by fee reduction was in force in respect of the claimant and the child.
Previous claim by claimant for child care benefit by fee reduction, a determination of conditional eligibility is in force but varied with effect that the individual is not conditionally eligible and the variation can be undone
49J(6)
A past period claim is ineffective if:
(a)
at the time the claim would be determined (the
determination time
):
(i)
the claimant had previously made a claim for payment of child care benefit by fee reduction in respect of the child; and
(ii)
a determination that the claimant is conditionally eligible for child care benefit by fee reduction is in force in respect of the previous claim; and
(iii)
that determination has been varied under section 58A, 61A or 62 with the effect that the claimant is not conditionally eligible for any session of care provided to the child after the determination time; and
(b)
the claim is made before the end of the income year following the one in which the variation mentioned in subparagraph (a)(iii) took effect.
Approved child care service is already eligible for child care benefit by fee reduction for care provided by the service to a child at risk
49J(7)
A past period claim is ineffective in respect of any part of a past period during which an approved child care service was eligible for child care benefit by fee reduction for care provided to the child.
Restriction in subsection (7) not to apply in certain circumstances
49J(8)
Subsection (7) does not apply to a claim if, in the special circumstances of the claim, the Secretary considers that subsection (7) should not apply.
S 49J inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49K
49K
Restrictions on claim by individual for payment of child care benefit for past period for care provided by a registered carer
(Repealed by No 22 of 2017)
History
S 49K repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49K formerly read:
SECTION 49K Restrictions on claim by individual for payment of child care benefit for past period for care provided by a registered carer
Claims to which section applies
49K(1)
This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by a registered carer to a child (a
past period claim
).
Claim ineffective if relates to periods of care which occurred before the start of the period of 12 months before claim
49K(2)
A past period claim is ineffective if the claim relates to a period of care which occurred before the start of the period of 12 months before the date of claim.
Previous claim by claimant for care provided in a past period by a registered carer
49K(3)
A past period claim is ineffective if the claimant has previously made a claim for payment of child care benefit for care provided by a registered carer to the child for any part of the past period (whether or not the claim has been determined).
Subsection (3) does not apply if previous claim by claimant and claimant not entitled for failing to meet a condition in paragraph 45(1)(a), (f) or (g) of the Family Assistance Act
49K(4)
Subsection (3) does not apply if:
(a)
the claimant has previously made a claim for child care benefit for care provided in the past period by a registered carer to the child; and
(b)
the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the claimant was not eligible under section 45 of the Family Assistance Act; and
(c)
the reason the claimant was not eligible was because the claimant failed to meet the condition in paragraph 45(1)(a), (f) or (g) of that Act.
S 49K inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49L
49L
Restrictions on claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual
(Repealed by No 22 of 2017)
History
S 49L repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49L formerly read:
SECTION 49L Restrictions on claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual
Claim to which this section applies
49L(1)
This section applies to a claim (a
substitution claim
) by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual.
Claim must be made before the end of the income year following the one in which the death occurred
49L(2)
A substitution claim is ineffective if it is made after the end of the income year following the one in which the death of the other individual occurred.
Claim for care provided by an approved child care service where a determination of conditional eligibility was in force cannot be made before the end of the income year in which the death occurred
49L(3)
In the case of a substitution claim for care provided by an approved child care service if a determination of conditional eligibility was in force in respect of the other individual, the claim is ineffective in respect of a period of care provided in a particular income year if it is made before the end of that income year.
Claim for care provided by a registered carer is ineffective in respect of a period earlier than 12 months before death of other individual
49L(4)
In the case of a substitution claim for care provided by a registered carer, the claim is ineffective in respect of a period of care other than the period of 12 months before the death of the other individual.
Previous claim by claimant
49L(5)
A substitution claim in respect of a child and a period is ineffective if the claimant has previously made a substitution claim in respect of the child and the same period because of the death of the same other individual (whether or not that claim has been determined).
Subsection (5) does not apply if previous claim by claimant and other individual not entitled for failure to meet a condition in paragraph 44(1)(a) or (e) of the Family Assistance Act
49L(6)
Subsection (5) does not apply if:
(a)
the claimant has previously made a substitution claim for care provided by an approved child care service to the child because of the death of the other individual; and
(b)
the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the other individual was not eligible under section 44 of the Family Assistance Act; and
(c)
the reason the other individual was not eligible was because of a failure to meet the condition in paragraph 44(1)(a) or (e) of that Act.
Subsection(5) does not apply if previous claim by claimant and other individual not entitled for failure to meet a condition in paragraph 45(1)(a) or (g) of the Family Assistance Act
49L(7)
Subsection (5) does not apply if:
(a)
the claimant has previously made a substitution claim for care provided by a registered carer to the child; and
(b)
the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the other individual was not eligible under section 45 of the Family Assistance Act; and
(c)
the reason the other individual was not eligible was because of a failure to meet the condition in paragraph 45(1)(a) or (g) of that Act.
S 49L inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49M
49M
Restriction on claim by an approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk
(Repealed by No 22 of 2017)
History
S 49M repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49M formerly read:
SECTION 49M Restriction on claim by an approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk
49M
Individual already conditionally eligible
A claim by an approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk is ineffective if, at the time the care is provided, a determination is in force that an individual is conditionally eligible for child care benefit by fee reduction in respect of the child.
S 49M inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 49N
49N
Claims may be withdrawn or varied
(Repealed by No 22 of 2017)
History
S 49N repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 49N formerly read:
SECTION 49N Claims may be withdrawn or varied
49N(1)
A claimant who is an individual claiming for payment of child care benefit by fee reduction may withdraw or vary the claim before a determination of conditional eligibility under section 50F, or a determination of no entitlement under section 50G, has been made in respect of the claim.
49N(2)
A claimant who is an individual claiming for:
(a)
payment of child care benefit for a past period for care provided by an approved child care service; or
(b)
payment of child care benefit for a past period for care provided by a registered carer; or
(c)
payment of child care benefit by single payment/in substitution because of the death of another individual;
may withdraw or vary the claim before the claim is determined.
49N(3)
The claimant may only withdraw or vary the claim in a manner determined by the Secretary.
49N(4)
If a claim is withdrawn it is taken never to have been made.
S 49N inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision C - Determinations to be made on claim if individual claims payment of child care benefit by fee reduction
History
Subdiv C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50
50
Determinations on effective claim
(Repealed by No 22 of 2017)
History
S 50 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50 formerly read:
SECTION 50 Determinations on effective claim
50(1)
This Subdivision deals with the determinations the Secretary must make on claim, if an individual (the
claimant
) has made an effective claim for payment of child care benefit by fee reduction for care provided by an approved child care service to a child (the
child
).
50(2)
If a claim is not effective, it is taken not to have been made.
50(3)
The Secretary makes these determinations in respect of each child for whom the claimant has made a claim.
50(4)
The Secretary takes these determinations into account when calculating the rate at which, and the amount in which, fee reduction is applicable in respect of the care provided to the child in an income year in respect of which a determination of conditional eligibility is in force. After the end of the income year, a determination of entitlement, or no entitlement (as the case may be), is made under Subdivision D in respect of the individual's claim.
History
S 50(4) amended by No 53 of 2008, s 3 and Sch 5 item 6, by substituting "The Secretary takes these determinations into account when calculating the rate at which, and the amount in which, fee reduction is applicable in respect of the care provided to the child" for "The service uses these determinations as a basis for reducing the claimant's fees for sessions of care provided", applicable in relation to a session or sessions of care provided by an approved child care service to a child during a week falling wholly after the service's application day (within the meaning of item 91 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007).
S 50 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 50 see history note under Pt 3 Div 4 heading.
SECTION 50A
50A
Secretary must make determinations
(Repealed by No 22 of 2017)
History
S 50A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50A formerly read:
SECTION 50A Secretary must make determinations
50A
Subject to sections 50D and 50E, on claim, the Secretary must make the determinations referred to in sections 50B and 50C, if required. The determinations must be made in accordance with this Subdivision.
S 50A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50B
50B
Determination of conditional eligibility or no entitlement to be made
(Repealed by No 22 of 2017)
History
S 50B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50B formerly read:
SECTION 50B Determination of conditional eligibility or no entitlement to be made
Determinations to be made as soon as practicable if tax file number given, claimant exempted or option indicated on claim
50B(1)
If:
(a)
the claimant gives the Secretary, as requested under section 57B, a statement of the tax file number of each of the TFN claim persons; or
(b)
the claimant gives the Secretary a statement of the claimant's tax file number and the Secretary exempts the claimant's partner, under subsection 57B(6), from giving a statement in relation to the partner's tax file number; or
(c)
the claimant opts in the claim form to have a CCB % of zero % applicable to him or her;
the Secretary must make the determination referred to in section 50F or 50G (as appropriate) as soon as practicable.
History
S 50B(1) amended by No 53 of 2008, s 3 and Sch 1 item 20, by substituting "a CCB % of zero % applicable to him or her" for "the CCB % applicable to him or her calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
When determinations must be made if subsection (1) does not apply
50B(2)
If subsection (1) does not apply in respect of the claimant, the Secretary must make the determination referred to in section 50F or 50G (as appropriate) as provided for in section 50D.
S 50B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50C
50C
Other determinations to be made if determination of conditional eligibility is made
(Repealed by No 22 of 2017)
History
S 50C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50C formerly read:
SECTION 50C Other determinations to be made if determination of conditional eligibility is made
50C
If the Secretary makes a determination of conditional eligibility under section 50F, the Secretary must make the following determinations:
(a)
a determination of the weekly limit of hours applicable to the claimant and the child under section 50H;
(b)
a determination of CCB % applicable to the claimant and the child under section 50J;
(c)
a determination of the schooling % applicable to the claimant and the child under section 50K.
Note:
Section 50T also requires the Secretary to determine, in certain circumstances, whether or not the claimant is eligible for the special grandparent rate.
S 50C amended by No 132 of 2004, s 3 and Sch 4 item 15, by inserting the note at the end, applicable to sessions of care provided in a week that commences after 1 January 2005.
S 50C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50D
50D
Restriction on when determinations under section 50F or 50G can be made
(Repealed by No 22 of 2017)
History
S 50D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50D formerly read:
SECTION 50D Restriction on when determinations under section 50F or 50G can be made
Statement about tax file number made on claim
50D(1)
If:
(a)
each of the TFN claim persons makes a statement of the kind set out in subsection 57B(3) or (4); or
(b)
one of the TFN claim persons makes a statement of the kind set out in subsection 57B(3) or (4) and the other TFN claim person gives a statement of the person's tax file number; or
(c)
the TFN claim person who is the claimant makes a statement of the kind set out in subsection 57B(3) or (4) and the Secretary exempts the claimant's partner under subsection 57B(6) from giving a statement in relation to the partner's tax file number;
the Secretary must only make the determination referred to in section 50F or 50G (as appropriate):
(d)
after the Commissioner of Taxation tells the Secretary, within 28 days after the claim is made, in respect of each TFN claim person who has made a statement of the kind set out in subsection 57B(3) or (4):
(i)
the TFN claim person's tax file number; or
(ii)
that the person has not applied for a tax file number; or
(iii)
that the person does not have a tax file number; or
(iv)
that the application by the person for a tax file number has been refused; or
(v)
that the person has withdrawn an application for tax file number; or
(e)
after 28 days after the claim is made have passed, if, within the 28 days, the Commissioner for Taxation does not tell the Secretary any of the things in respect of any TFN claim person referred to in paragraph (d).
No statement on claim about tax file number etc.
50D(2)
Subject to subsections (3) and (4), if neither subsection 50B(1) nor subsection (1) of this section apply in respect of the claim, the Secretary must make the determination referred in section 50F or 50G (as appropriate) as soon as practicable.
No statement on claim about tax file number etc. and Secretary's request for tax file number complied with
50D(3)
If:
(a)
neither subsection 50B(1) nor subsection (1) of this section apply in respect of the claim; and
(b)
the Secretary makes a request under section 57C; and
(c)
within 28 days after the request is made, the claimant complies with the request;
the Secretary must only make the determination referred to in section 50F or 50G (as appropriate) when the claimant complies with the request.
No statement on claim about tax file number etc. and Secretary's request for tax file number not complied with
50D(4)
If:
(a)
neither subsection 50B(1) nor subsection (1) of this section apply in respect of the claim; and
(b)
the Secretary makes a request under section 57C; and
(c)
28 days pass after the request is made without the claimant complying with the request;
the Secretary must only make the determination referred to in section 50F or 50G (as appropriate) when the 28 days have passed.
S 50D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50E
50E
Restriction on determination under section 50F or 50G if bank account details not provided
(Repealed by No 22 of 2017)
History
S 50E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50E formerly read:
SECTION 50E Restriction on determination under section 50F or 50G if bank account details not provided
50E(1)
If the claimant makes a statement of the kind set out in paragraph 49G(2)(b), the Secretary may only make a determination under section 50F or 50G if, within 28 days after the claim is made, the person nominates, and provides details of, a bank account of a kind referred to in paragraph 49G(2)(a) into which the amount of the difference referred to in subsection 56(1) is to be paid.
50E(2)
If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, make a determination under section 50F or 50G, in respect of the claim, the claim is taken never to have been made.
S 50E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50F
50F
Determination of conditional eligibility
(Repealed by No 22 of 2017)
History
S 50F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50F formerly read:
SECTION 50F Determination of conditional eligibility
50F
If the Secretary is satisfied that the claimant, at the time the Secretary makes the determination, is conditionally eligible under section 42 of the Family Assistance Act in respect of the child, the Secretary must determine that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.
S 50F inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50G
50G
Determination that no entitlement
(Repealed by No 22 of 2017)
History
S 50G repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50G formerly read:
SECTION 50G Determination that no entitlement
50G
If the Secretary is not satisfied that the claimant is, at the time the Secretary makes the determination, conditionally eligible under section 42 of the Family Assistance Act in respect of the child, the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of the child.
S 50G inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50H
50H
Determination of weekly limit of hours
(Repealed by No 22 of 2017)
History
S 50H repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50H formerly read:
SECTION 50H Determination of weekly limit of hours
50H(1)
If the Secretary makes a determination under section 50F that the claimant is conditionally eligible, the Secretary must determine the weekly limit of hours applicable to the claimant and the child.
50H(2)
The limit is worked out using Subdivision G of Division 4 of Part 3 of the Family Assistance Act as if references in that Subdivision to an individual being eligible under section 43 of that Act were references to the individual being conditionally eligible under section 42 of that Act.
50H(3)
The limit must be either:
(a)
50 hours, if a circumstance listed in subsection 54(2), (4), (6), (13) or (14) of the Family Assistance Act applies to the claimant; or
(b)
24 hours if paragraph (a) does not apply.
History
S 50H(3) amended by No 150 of 2005, s 3 and Sch 1 item 9, by substituting ``24'' for ``20'' in para (b), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
No 150 of 2005, s 3 and Sch 1 item 16, contains the following transitional provision:
16 Transitional provision - claimants for whom there is an existing 20-hour determination
(1)
If:
(a)
immediately before the start of the first week commencing after 1 July 2006:
(i)
a determination under subsection 50H(1) of the Family Assistance Administration Act is in force; or
(ii)
a determination of a weekly limit of hours is taken to have been made under section 54C of that Act; and
(b)
the determination is a determination that the weekly limit of hours applicable to the claimant and the child referred to in that subsection or section (as the case may be) is 20 hours;
on and from the start of the first week commencing after 1 July 2006, the determination is taken to be a determination under that subsection or section (as the case may be) that the weekly limit of hours applicable to the claimant and the child is 24 hours.
(2)
If subitem (1) applies to a determination under subsection 50H(1) that is in force, the Secretary must give notice to:
(a)
the claimant; and
(b)
the approved child care service (within the meaning of the Family Assistance Administration Act), or approved child care services, that are, or will be, providing care to the child.
(3)
The notice must state that on and from the start of the first week commencing after 1 July 2006, the weekly limit of hours applicable to the claimant and the child is 24 hours.
(4)
A failure to comply with subitem (2) or (3), or both, does not affect the validity of a determination to which subitem (1) applies.
(5)
Section 219A of the Family Assistance Administration Act applies in relation to a notice under subitem (2) as if it were a notice of a kind referred to in column 1 of table item 6 of the table in subsection 219A(2) of that Act.
S 50H inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50J
50J
Determination of CCB%
(Repealed by No 22 of 2017)
History
S 50J repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50J formerly read:
SECTION 50J Determination of CCB%
50J(1)
If the Secretary makes a determination under section 50F that the claimant is conditionally eligible, the Secretary must determine the CCB % applicable to the claimant and the child.
50J(2)
In making a determination of CCB %, the Secretary must:
(a)
determine a percentage of zero % if subsection 55(2) or 55B(1), or section 55C, applies; or
(b)
otherwise - use the provisions in Schedule 2 to the Family Assistance Act as if references in those provisions to a person being eligible were references to a person being conditionally eligible under section 42 of that Act.
History
S 50J(2) substituted by No 53 of 2008, s 3 and Sch 1 item 21, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. No 53 of 2008, s 3 and Sch 1 item 64 contains the following transitional provision:
Transitional - varying CCB % determinations
Secretary may vary CCB % determinations between commencement and 6 July 2008
(1)
If:
(a)
at the commencement of this item, a determination of CCB % under section 50J of the Family Assistance Administration Act is in force in respect of a claimant who is an individual; and
(b)
the Secretary considers that, if the Secretary were making the determination of CCB % on 7 July 2008, the CCB % determined on 7 July (the
new CCB %
) would be different from the CCB % at commencement (the
current CCB %
);the Secretary may, in writing, vary the determination of CCB % so that the claimant's CCB % is the new CCB %.
(2)
A variation under subitem (1) has effect for the purposes of the Family Assistance Administration Act from 7 July 2008.
(3)
A variation under subitem (1) cannot be made after 6 July 2008.
Decisions to vary are reviewable
(4)
For the purposes of Part 5 of the Family Assistance Administration Act, a decision of the Secretary to vary a determination under subitem (1) is taken to be a decision of an officer under the family assistance law.
S 50J(2) formerly read:
50J(2)
In making a determination of CCB %, the Secretary must use the provisions in Schedule 2 to the Family Assistance Act as if references in those provisions to a person being eligible were references to a person being conditionally eligible under section 42 of that Act.
S 50J inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50K
50K
Determination of schooling %
(Repealed by No 22 of 2017)
History
S 50K repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50K formerly read:
SECTION 50K Determination of schooling %
50K(1)
If the Secretary makes a determination under section 50F that the claimant is conditionally eligible, the Secretary must determine the schooling % applicable to the claimant and the child.
50K(2)
In making a determination of schooling %, the Secretary must use the provisions in Schedule 2 to the Family Assistance Act as if references in those provisions to a person being eligible were references to a person being conditionally eligible under Section 42 of that Act.
S 50K inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50L
50L
When determinations are in force
(Repealed by No 22 of 2017)
History
S 50L repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50L formerly read:
SECTION 50L When determinations are in force
50L(1)
Subject to subsections (6) and (7), a determination of conditional eligibility under section 50F in respect of the claimant comes into force:
(a)
if no day is specified in the notice of determination - on the day the determination is made; or
(b)
on the day specified in the notice of determination;
and remains in force at all times afterwards.
50L(2)
Except in the case mentioned in subsection (4), the Secretary may specify a day, not more than 4 weeks before the day the claim was made by the claimant, as the day the determination is to come into force.
50L(3)
The Secretary may only specify a day under subsection (2) if the Secretary is satisfied that, if the claimant had made the claim on the specified earlier day before the day of the claim, the claimant would have been conditionally eligible on and since that specified earlier day for child care benefit by fee reduction.
50L(4)
The Secretary must not specify a day under subsection (2) if:
(a)
a determination of conditional eligibility under section 50F was made in respect of the claim; and
(b)
the claim was made while an earlier determination of conditional eligibility was in force with the effect that the claimant was not conditionally eligible as a result of a variation under section 58B (failure to comply with immunisation requirement).
50L(5)
A determination of a weekly limit of hours under section 50H, CCB % under section 50J and schooling % under section 50K in respect of the claimant and the child comes into force at the time the determination of conditional eligibility comes into force and remains in force while the determination of conditional eligibility is in force.
50L(6)
If:
(a)
the Secretary makes a determination of conditional eligibility under section 50F in respect of the claimant and the child; and
(b)
the Secretary varies the determination of conditional eligibility with the effect that the claimant is not conditionally eligible for any session of care occurring on a day on which the determination was, or will be, in force after the day the variation begins to have effect; and
(c)
the claimant makes a later claim for payment of child care benefit by fee reduction;
the determination of conditional eligibility ceases to be in force by force of this subsection on the day a determination comes into force in respect of the later claim.
50L(7)
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of the claimant; and
(b)
the claimant informs the Secretary, in the form and manner required by the Secretary, that the claimant wants the determination of conditional eligibility to cease to be in force;
the determination ceases to be in force from a day specified in the notice under subsection (8).
50L(8)
The Secretary must give the claimant notice of the cessation of the determination under subsection (7). The notice must specify the day on which the determination ceases to be in force.
History
S 50L(8) amended by No 118 of 2007, s 3 and Sch 1 item 12, by omitting ", and the approved child care service providing care to the child who was the subject of the claim," after "Secretary must give the claimant", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
50L(9)
The cessation is not ineffective by reason only that the notice under subsection (8) does not fully comply with the requirements of that subsection.
50L(10)
The Secretary may make notice of the cessation of the determination under subsection (7) available to the approved child care service providing care to the child who was the subject of the claim, including by making notice available to the service using an electronic interface.
History
S 50L(10) inserted by No 118 of 2007, s 3 and Sch 1 item 13, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 50L inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50M
50M
Notice of determinations if claimant conditionally eligible
(Repealed by No 22 of 2017)
History
S 50M repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50M formerly read:
SECTION 50M Notice of determinations if claimant conditionally eligible
50M(1)
The Secretary must give notice of determinations made in respect of the claimant under sections 50F, 50H, 50J and 50K to the claimant.
History
S 50M(1) amended by No 118 of 2007, s 3 and Sch 1 item 14, by omitting "and the approved child care service, or services, that are, or will be, providing care to the child" after "to the claimant", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
50M(2)
The notice must state:
(a)
that a determination of conditional eligibility under section 50F is in force in respect of the claimant; and
(b)
the date from which the determination came into force; and
(c)
the name of the child in respect of whom the claimant is conditionally eligible; and
(d)
the weekly limit of hours, CCB % and schooling % applicable to the claimant and the child; and
(e)
that the claimant may apply for review of any of the determinations in the manner set out in Part 5.
50M(3)
The determinations are not ineffective by reason only that any, or all, of the requirements of subsections (1) and (2) are not complied with.
50M(4)
The Secretary may make notice of the determinations made in respect of the claimant under sections 50F, 50H, 50J and 50K available to the approved child care service, or services, that are, or will be, providing care to the child, including by making the notice available to the service using an electronic interface.
History
S 50M(4) inserted by No 118 of 2007, s 3 and Sch 1 item 15, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 50M inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50N
50N
When determination of no entitlement is in force
(Repealed by No 22 of 2017)
History
S 50N repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50N formerly read:
SECTION 50N When determination of no entitlement is in force
50N(1)
Subject to subsection (2), a determination of no entitlement under section 50G comes into force when it is made and remains in force at all times afterwards.
50N(2)
If:
(a)
a determination of no entitlement has been made under section 50G in respect of the claimant; and
(b)
the claimant makes a later effective claim for payment of child care benefit by fee reduction, or for a past period, for care provided by an approved child care service;
the determination of no entitlement ceases to be in force on the day a determination comes into force in respect of the second claim.
S 50N inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 50P
50P
Notice of determination of no entitlement
(Repealed by No 22 of 2017)
History
S 50P repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50P formerly read:
SECTION 50P Notice of determination of no entitlement
50P(1)
The Secretary must give notice to the claimant of a determination of no entitlement made in respect of the claimant under section 50G stating:
(a)
that the claimant is not entitled to be paid child care benefit by fee reduction in respect of the child; and
(b)
that the claimant may apply for review of the determination in the manner set out in Part 5
50P(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
S 50P inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision CA - Determination of eligibility for special grandparent rate if individual determined to be conditionally eligible for child care benefit by fee reduction
History
Subdiv CA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv CA inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50Q
50Q
Determination of eligibility for special grandparent rate
(Repealed by No 22 of 2017)
History
S 50Q repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50Q formerly read:
SECTION 50Q Determination of eligibility for special grandparent rate
50Q
This Subdivision deals with the determination of eligibility for the special grandparent rate that the Secretary must make in certain circumstances if an individual (the
claimant
) is determined to be conditionally eligible for child care benefit by fee reduction in respect of a child.
Note:
Section 50T tells you when the Secretary must determine the claimant's eligibility for the special rate. Section 50S tells you the criteria that must be satisfied for the claimant to be eligible for that rate. Section 50R explains who counts as a grandparent or great-grandparent for the purposes of this Subdivision.
S 50Q inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50R
50R
Grandparents and great-grandparents
(Repealed by No 22 of 2017)
History
S 50R repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50R formerly read:
SECTION 50R Grandparents and great-grandparents
50R(1)
In determining, for the purposes of this Subdivision, whether an individual is a
grandparent
or
great-grandparent
of another person, treat the following relationships as if they were biological child-parent relationships:
(a)
the relationship between an adopted child and his or her adoptive parent;
(b)
the relationship between a step-child and his or her step-parent;
(c)
the relationship between a relationship child and his or her relationship parent.
History
S 50R(1) amended by No 144 of 2008, s 3 and Sch 6 item 21, by inserting para (c), effective 1 July 2009.
50R(2)
In subsection (1):
adoptive parent
, of a person (the
child
), means the person who adopted the child under a law of any place (whether in Australia or not) relating to the adoption of children.
step-parent
, of a person (the
child
), means the person who:
(a)
is the current or former partner of the biological parent, adoptive parent or relationship parent of the child; and
(b)
is not the biological parent, adoptive parent or relationship parent of the child.
History
Definition of "step-parent" amended by No 144 of 2008, s 3 and Sch 6 item 22, by substituting "biological parent, adoptive parent or relationship parent" for "biological or adoptive parent" in paras (a) and (b), effective 1 July 2009.
S 50R inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50S
50S
Eligibility for special grandparent rate
(Repealed by No 22 of 2017)
History
S 50S repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50S formerly read:
SECTION 50S Eligibility for special grandparent rate
50S(1)
An individual is eligible for the special grandparent rate for a child if:
(a)
the individual, or the individual's partner, is receiving:
(i)
a social security pension; or
(ii)
a social security benefit; or
(iii)
a service pension; or
(iv)
an income support supplement under Part IIIA of the Veterans' Entitlements Act 1986; or
(v)
a veteran payment; and
(b)
the individual, or the individual's partner, is the grandparent or great-grandparent of the child; and
(c)
the individual, or the individual's partner, is the principal carer of the child.
History
S 50S(1) amended by No 17 of 2018, s 3 and Sch 2 items 38 and 39, by substituting "or" for "and" in para (a)(iv) and inserting para (a)(v), effective 1 May 2018.
50S(2)
For the purposes of subsection (1), a person is the
principal carer
of another person (the
child
) if the person:
(a)
is the sole or major provider of ongoing daily care for the child; and
(b)
has substantial autonomy for the day-to-day decisions about the child's care, welfare and development.
50S(3)
An individual is also eligible for the special grandparent rate for a child if the individual, or the individual's partner, is eligible under subsection (1) for the special grandparent rate for another child.
S 50S inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50T
50T
Secretary must determine claimant's eligibility for special grandparent rate in certain circumstances
(Repealed by No 22 of 2017)
History
S 50T repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50T formerly read:
SECTION 50T Secretary must determine claimant's eligibility for special grandparent rate in certain circumstances
When Secretary must determine whether claimant eligible for special grandparent rate
50T(1)
If subsection (2), (3) or (4) is satisfied, the Secretary must determine whether or not the claimant is eligible for the special grandparent rate for a child.
Request for special grandparent rate determination made in claim for determination of conditional eligibility
50T(2)
This subsection is satisfied if:
(a)
the claimant:
(i)
makes a claim (whether before or after 1 January 2005) for payment of child care benefit by fee reduction for care provided by an approved child care service to the child; and
(ii)
informs the Secretary, in the form and manner (if any) required by the Secretary, in or in connection with the claim that the claimant wants the Secretary to make a determination under this section in relation to the claimant and the child; and
(b)
in response to the claim, the Secretary makes, on or after 1 January 2005, a determination under section 50F with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.
Application for special grandparent rate determination after determination of conditional eligibility made
50T(3)
This subsection is satisfied if:
(a)
a determination under section 50F (whether made before or after 1 January 2005) is in force with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child; and
(b)
the claimant applies, in the form and manner (if any) required by the Secretary, for a determination under this section in relation to the child.
Transitional situation
50T(4)
This subsection is satisfied if, immediately before 1 January 2005:
(a)
a determination is in force under section 50F that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child; and
(b)
the determination in force under section 50H of the weekly limit of hours applicable to the claimant and the child is based on the claimant, or the claimant's partner, being taken to satisfy the work/training/study test because of the determination that was made under subsection 14(2) of the Family Assistance Act on 28 October 2004; and
(c)
the claimant, or the claimant's partner, is receiving:
(i)
a social security pension; or
(ii)
a social security benefit; or
(iii)
a service pension; or
(iv)
an income support supplement under Part IIIA of the Veterans' Entitlements Act 1986.
Determinations not legislative instruments
50T(5)
A determination made under subsection (1), or a variation of such a determination, is not a legislative instrument.
History
S 50T(5) amended by No 126 of 2015, s 3 and Sch 1 item 18, by omitting "for the purposes of the Legislative Instruments Act 2003" after "legislative instrument", effective 5 March 2016.
S 50T inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50U
50U
Criteria for making determination
(Repealed by No 22 of 2017)
History
S 50U repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50U formerly read:
SECTION 50U Criteria for making determination
50U
The Secretary must determine under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child if:
(a)
a determination under section 50F with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child is in force; and
(b)
the Secretary is satisfied that the claimant is eligible for the special grandparent rate for the child (see section 50S).
Otherwise the Secretary must determine that the claimant is not eligible for the special grandparent rate for the child.
S 50U inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50V
50V
Notice of determination that claimant eligible for special grandparent rate
(Repealed by No 22 of 2017)
History
S 50V repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50V formerly read:
SECTION 50V Notice of determination that claimant eligible for special grandparent rate
50V(1)
The Secretary must give notice of a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child to the claimant.
History
S 50V(1) substituted by No 118 of 2007, s 3 and Sch 1 item 16, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 50V(1) formerly read:
50V(1)
The Secretary must give notice of a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child to:
(a)
the claimant; and
(b)
the approved child care service, or services, that are, or will be, providing care to the child.
50V(2)
The notice must state:
(a)
the names of the claimant and the child; and
(b)
that the claimant is eligible for the special grandparent rate for the child; and
(c)
the date from which the determination comes into force; and
(d)
that the claimant may apply for review of the determination in the manner set out in Part 5.
50V(3)
The determination is not ineffective by reason only that any, or all, of the requirements of subsections (1) and (2) are not complied with.
50V(4)
The Secretary may make notice of a determination under subsection 50T(1) available to the approved child care service, or services, that are, or will be, providing care to the child, including by making the notice available to the service using an electronic interface.
History
S 50V(4) inserted by No 118 of 2007, s 3 and Sch 1 item 17, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 50V inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50W
50W
Notice of determination that claimant not eligible for special grandparent rate
(Repealed by No 22 of 2017)
History
S 50W repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50W formerly read:
SECTION 50W Notice of determination that claimant not eligible for special grandparent rate
50W(1)
The Secretary must give notice of a determination under subsection 50T(1) that the claimant is not eligible for a child to the claimant.
50W(2)
The notice must state:
(a)
that the claimant is not eligible for the special grandparent rate for the child; and
(b)
that the claimant may apply for review of the determination in the manner set out in Part 5.
50W(3)
The determination is not ineffective by reason only that any, or all, of the requirements of subsections (1) and (2) are not complied with.
S 50W inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50X
50X
When determination that claimant is eligible for special grandparent rate is in force
(Repealed by No 22 of 2017)
History
S 50X repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50X formerly read:
SECTION 50X When determination that claimant is eligible for special grandparent rate is in force
50X(1)
Subject to subsection (4), a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child comes into force:
(a)
if no day is specified in the notice of determination - on the day the determination is made; or
(b)
on the day specified in the notice of determination.
50X(2)
The Secretary may specify a day, not more than 4 weeks before the day on which the claimant made the claim or application in response to which the determination was made by the Secretary, as the day the determination is to come into force.
50X(3)
The Secretary may only specify a day under subsection (2) if:
(a)
the Secretary is satisfied that the claimant was eligible for the special grandparent rate for the child on and since that specified earlier day; and
(b)
the day does not occur before 1 January 2005.
50X(4)
A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child comes into force on 1 January 2005 if the Secretary makes the determination because of subsection 50T(4).
50X(5)
A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child may be varied in accordance with this Division.
50X(6)
A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child remains in force, as varied from time to time, while the determination under section 50F of the claimant's conditional eligibility in respect of the child is in force.
S 50X inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 50Y
50Y
When determination that claimant is not eligible for special grandparent rate is in force
(Repealed by No 22 of 2017)
History
S 50Y repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50Y formerly read:
SECTION 50Y When determination that claimant is not eligible for special grandparent rate is in force
50Y
A determination under subsection 50T(1) that the claimant is not eligible for the special grandparent rate for the child:
(a)
comes into force when it is made; and
(b)
cannot be varied under this Division; and
(c)
subject to paragraph (d), remains in force while the determination under section 50F of the claimant's conditional eligibility in respect of the child is in force; and
(d)
ceases to have effect if a subsequent determination under subsection 50T(1) that the claimant is, or is not, eligible for the special grandparent rate for the child comes into force.
Note:
Paragraph (d) - a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate can be made if the claimant makes a fresh application for a determination of the claimant's eligibility for that rate.
S 50Y inserted by No 132 of 2004, s 3 and Sch 4 item 16, applicable to sessions of care provided in a week that commences after 1 January 2005.
Subdivision CB - Calculating the rate and amount of fee reductions
History
Subdiv CB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv CB inserted by No 118 of 2007, s 3 and Sch 1 item 18, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 50Z
50Z
Calculating the rate and amount of fee reductions - individual conditionally eligible
(Repealed by No 22 of 2017)
History
S 50Z repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50Z formerly read:
SECTION 50Z Calculating the rate and amount of fee reductions - individual conditionally eligible
50Z(1)
If:
(a)
a determination of conditional eligibility for child care benefit by fee reduction under section 50F is in force in respect of an individual (the
claimant
) and a child for a session or sessions of care provided by the service in a week; and
(b)
the service gives a report under subsection 219N(1) in respect of the individual and the child in respect of the week;the Secretary must calculate the rate at which, and the amount in which, the Secretary considers fee reduction is applicable in respect of the session or sessions of care provided in the week.
Note:
The rate may be a zero rate and the amount a nil amount (see section 4A).
History
S 50Z(1) amended by No 53 of 2008, s 3 and Sch 1 item 22, by inserting the note at the end, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
50Z(2)
In calculating the rate and amount, the Secretary must take into account all of the following decisions:
(a)
determinations made under this Act and under the Family Assistance Act by the Secretary in respect of the claimant and the child;
(b)
certificates given by the service in respect of the claimant and the child that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act;
(c)
certificates given by the service setting a rate of fee reductions under subsection 76(1) of the Family Assistance Act in respect of the claimant and the child.
50Z(3)
The Secretary must notify the approved child care service of the rate and amount calculated.
50Z(4)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
50Z(5)
Without limiting subsection (4), the Secretary may approve notification of the rate and amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.
S 50Z inserted by No 118 of 2007, s 3 and Sch 1 item 18, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 50ZA
50ZA
Revising the rate and amount calculation
(Repealed by No 22 of 2017)
History
S 50ZA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50ZA formerly read:
SECTION 50ZA Revising the rate and amount calculation
50ZA(1)
The Secretary may recalculate the rate at which, and the amount in which, the Secretary considers fee reduction is applicable in respect of a session or sessions of care provided by the service to the child in the week, provided no determination has been made under section 51B of the rate at which and the amount in which the Secretary considers the claimant eligible for the income year in which the week falls.
Note:
The recalculated rate may be a zero rate and the recalculated amount a nil amount (see section 4A).
History
S 50ZA(1) amended by No 53 of 2008, s 3 and Sch 1 item 23, by inserting the note at the end, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
50ZA(2)
The Secretary must notify the approved child care service of the recalculated rate and amount.
History
S 50ZA(2) amended by No 79 of 2011, s 3 and Sch 5 item 1, by substituting "The" for "Subject to subsection (3), the", applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after the commencement of those items in respect of weeks beginning before, on or after 26 July 2011.
50ZA(3)
(Repealed by No 79 of 2011)
History
S 50ZA(3) repealed by No 79 of 2011, s 3 and Sch 5 item 2, applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after the commencement of those items in respect of weeks beginning before, on or after 26 July 2011.
S 50ZA(3) formerly read:
50ZA(3)
The Secretary need not notify the approved child care service of the recalculated rate and amount if the rate or amount is reduced, and the recalculation is for a reason other than the substitution or withdrawal by the service of a report given under section 219N.
50ZA(4)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
50ZA(5)
Without limiting subsection (4), the Secretary may approve notification of the recalculated rate and amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.
S 50ZA inserted by No 118 of 2007, s 3 and Sch 1 item 18, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 50ZB
50ZB
Calculating the amount of child care benefit by fee reduction - service eligible
(Repealed by No 22 of 2017)
History
S 50ZB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50ZB formerly read:
SECTION 50ZB Calculating the amount of child care benefit by fee reduction - service eligible
50ZB(1)
If:
(a)
an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for a session or sessions of care provided by the service to a child at risk; and
(b)
the service gives a report under subsection 219N(2) in respect of the child in respect of a week;the Secretary must calculate the amount in which the Secretary considers child care benefit by fee reduction is applicable in respect of the child in respect of the week.
50ZB(2)
In calculating the amount, the Secretary must take into account all of the following decisions:
(a)
determinations made under this Act and under the Family Assistance Act by the Secretary in respect of the child;
(b)
certificates given by the service in respect of the child that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(4) of the Family Assistance Act;
(c)
certificates given by the service setting a rate of child care benefit by fee reduction under subsection 76(2) of the Family Assistance Act in respect of the child.
50ZB(3)
The Secretary must notify the approved child care service of the amount calculated.
50ZB(4)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
50ZB(5)
Without limiting subsection (4), the Secretary may approve notification of the amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.
S 50ZB inserted by No 118 of 2007, s 3 and Sch 1 item 18, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 50ZC
50ZC
Revising the rate and amount calculation
(Repealed by No 22 of 2017)
History
S 50ZC repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 50ZC formerly read:
SECTION 50ZC Revising the rate and amount calculation
50ZC(1)
The Secretary may recalculate the amount in which the Secretary considers child care benefit by fee reduction is applicable in respect of a session or sessions of care provided to the child in the week, provided no determination has been made under section 54B of the amount in which the Secretary considers the service eligible in respect of the care provided to the child for the financial year in which the week falls.
50ZC(2)
The Secretary must notify the approved child care service of the recalculated amount.
History
S 50ZC(2) amended by No 79 of 2011, s 3 and Sch 5 item 3, by substituting "The" for "Subject to subsection (3), the", applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after the commencement of those items in respect of weeks beginning before, on or after 26 July 2011.
50ZC(3)
(Repealed by No 79 of 2011)
History
S 50ZC(3) repealed by No 79 of 2011, s 3 and Sch 5 item 4, applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after the commencement of those items in respect of weeks beginning before, on or after 26 July 2011. S 50ZC(3) formerly read:
50ZC(3)
The Secretary need not notify the approved child care service of the recalculated amount if the amount is reduced, and the recalculation is for a reason other than the substitution or withdrawal by the service of a report given under section 219N.
50ZC(4)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
50ZC(5)
Without limiting subsection (4), the Secretary may approve notification of the recalculated amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.
S 50ZC inserted by No 118 of 2007, s 3 and Sch 1 item 18, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Subdivision D - Determination of entitlement if individual determined to be conditionally eligible for child care benefit by fee reduction
History
Subdiv D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 51
51
Determination to be made if determination of conditional eligibility in force
(Repealed by No 22 of 2017)
History
S 51 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 51 formerly read:
SECTION 51 Determination to be made if determination of conditional eligibility in force
51
This Subdivision deals with determination of entitlement if a determination of conditional eligibility under section 50F is in force in respect of an individual (the
claimant
) and a child (the
child
) at any time during an income year.
S 51 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of S 51 see history note under Pt 3 Div 4 heading.
SECTION 51A
51A
Secretary must determine entitlement
(Repealed by No 22 of 2017)
History
S 51A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 51A formerly read:
SECTION 51A Secretary must determine entitlement
51A(1)
If a determination of conditional eligibility in respect of the claimant and the child is in force during an income year, the Secretary must determine the claimant's entitlement to be paid child care benefit by fee reduction in respect of the income year.
51A(2)
The determination of entitlement is made after the end of each income year in respect of which the claimant is conditionally eligible in respect of the child.
S 51A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 51B
51B
Determination of entitlement
(Repealed by No 22 of 2017)
History
S 51B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 51B formerly read:
SECTION 51B Determination of entitlement
51B(1)
If the Secretary is satisfied:
(a)
that the claimant is eligible under section 43 of the Family Assistance Act for child care benefit by fee reduction in respect of one or more sessions of care provided by an approved child care service to the child during the income year; and
(b)
that, if the claimant were to be entitled to child care benefit by fee reduction in respect of the sessions, the rate of benefit would be more than a zero rate;the Secretary must determine that the claimant is entitled to be paid child care benefit byfee reduction for the sessions. The determination must include the rate at which, and the amount in which, the Secretary considers the claimant eligible for the year.
History
S 51B(1) substituted by No 53 of 2008, s 3 and Sch 1 item 24, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 51B(1) formerly read:
51B(1)
If the Secretary is satisfied that the claimant is eligible under section 43 of the Family Assistance Act for child care benefit by fee reduction in respect of one or more sessions of care provided by an approved child care service to the child during the income year, the Secretary must determine that the claimant is entitled to be paid child care benefit by fee reduction for the sessions:
(a)
at the rate for which; and
(b)
in the amount for which;
the Secretary considers the claimant eligible.
51B(2)
In making the determination of entitlement, the Secretary takes into account all of the following decisions:
(a)
determinations made under this Act and under section 81 of the Family Assistance Act by the Secretary in respect of the claimant and the child;
(b)
certificates given by the service in respect of the claimant and the child that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act;
(c)
certificates given by the service setting a rate of child care benefit under subsection 76(1) of the Family Assistance Act in respect of the claimant and the child.
S 51B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 51C
51C
Determination that no entitlement
(Repealed by No 22 of 2017)
History
S 51C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 51C formerly read:
SECTION 51C Determination that no entitlement
51C(1)
If the Secretary:
(a)
is satisfied that the claimant is eligible as mentioned in paragraph 51B(1)(a) in respect of care provided to a child by an approved child care service during an income year; but
(b)
is not satisfied as mentioned in paragraph 51B(1)(b) that, if the claimant were to be entitled to child care benefit, the rate of benefit would be more than a zero rate;the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of that care.
51C(2)
If the Secretary is not satisfied that the claimant is eligible as mentioned in paragraph 51B(1)(a) in respect of care provided to a child by an approved child care service during an income year, the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of that care.
S 51C substituted by No 53 of 2008, s 3 and Sch 1 item 25, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 51C formerly read:
SECTION 51C Determination that no entitlement
51C
If the Secretary is not satisfied that the claimant is eligible as mentioned in section 51B, the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of that income year.
S 51C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 51D
51D
When determination is in force
(Repealed by No 22 of 2017)
History
S 51D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 51D formerly read:
SECTION 51D When determination is in force
51D
A determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.
S 51D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 51E
51E
Notice of determination
(Repealed by No 22 of 2017)
History
S 51E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 51E formerly read:
SECTION 51E Notice of determination
51E(1)
The Secretary must give notice of a determination under this Subdivision to the claimant, stating:
(a)
the income year in respect of which the determination is made; and
(b)
whether, under the determination, the claimant is entitled to be paid child care benefit by fee reduction for the child for the income year; and
(c)
if the claimant is so entitled:
(i)
the name of the child in respect of whom the claimant is entitled; and
(ii)
the amount of the entitlement; and
(iii)
the total amount of the fee reductions (if any) that an approved child care service providing care to the child is required, under section 219B, to pass on to the claimant in respect of sessions of care provided to the child during the income year; and
(iv)
if the amount of the entitlement is greater than the amount of the fee reductions - the amount of the difference, how it will be paid and to whom it will be paid; and
(v)
if the amount of the entitlement is less than the amount of the fee reductions - the amount of the difference, the fact that the amount is a debt, information relating to how, and from whom, the debt will be recovered; and
(d)
that the claimant may apply for review of the determination in the manner set out in Part 5.
History
S 51E(1) amended by No 118 of 2007, s 3 and Sch 1 item 19, by substituting para (c)(iii), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (c)(iii) formerly read:
(iii)
the total amount of the fee reductions (if any) made by an approved child care service providing care to the child, in respect of sessions of care provided to the child during the income year; and
51E(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
S 51E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision E - Determination of entitlement if individual claims payment of child care benefit for a past period
History
Subdiv E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52
52
Determination on effective claim
(Repealed by No 22 of 2017)
History
S 52 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52 formerly read:
SECTION 52 Determination on effective claim
52(1)
This Subdivision deals with determination of entitlement if an individual (the
claimant
) has made an effective claim for payment of child care benefit for a past period for care provided by an approved child care service or a registered carer to a child (the
child
).
52(2)
If a claim is not effective, it is taken not to have been made.
52(3)
The Secretary makes a determination of entitlement in respect of each child for whom the claimant has made a claim.
S 52 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 52 see history note under Pt 3 Div 4 heading.
SECTION 52A
52A
Secretary must determine claim
(Repealed by No 22 of 2017)
History
S 52A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52A formerly read:
SECTION 52A Secretary must determine claim
52A
Subject to sections 52B, 52C and 52D, after the effective claim is made by the claimant, the Secretary must determine the claim in accordance with this Subdivision.
S 52A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52B
52B
Restriction on determining claim where bank account details not provided
(Repealed by No 22 of 2017)
History
S 52B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52B formerly read:
SECTION 52B Restriction on determining claim where bank account details not provided
52B(1)
If the claimant makes a statement of the kind set out in paragraph 49G(2)(b), the Secretary can only determine the claim if, within 28 days after the claim is made, the claimant nominates, and provides details of, a bank account of a kind referred to in paragraph 49G(2)(a) into which the amount of the entitlement to child care benefit is to be paid.
52B(2)
If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.
S 52B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52C
52C
Restriction on determining claim where tax file number not provided etc.
(Repealed by No 22 of 2017)
History
S 52C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52C formerly read:
SECTION 52C Restriction on determining claim where tax file number not provided etc.
52C(1)
If a TFN claim person makes a statement of the kind set out in subsection 49E(4) or (5), the Secretary can only determine the claim if the Commissioner of Taxation tells the Secretary the person's tax file number.
52C(2)
If the Secretary cannot determine the claim under subsection (1) because the Commissioner of Taxation tells the Secretary that:
(a)
the person does not have a tax file number; or
(b)
the person has not applied for a tax file number; or
(c)
an application by the person for a tax file number has been refused; or
(d)
the person has withdrawn an application for a tax file number;
the claim is taken never to have been made.
S 52C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52D
52D
Restriction on determining claim for care provided by an approved child care service where tax assessment not made
(Repealed by No 22 of 2017)
History
S 52D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52D formerly read:
SECTION 52D Restriction on determining claim for care provided by an approved child care service where tax assessment not made
52D
If:
(a)
the claim is one for payment of child care benefit for a past period for care provided by an approved child care service; and
(b)
in the claim, the claimant did not opt to have a CCB % of zero % applicable to him or her; and
(c)
one or more TFN claim persons are required to lodge an income tax return for the income year in which the past period falls; and
(d)
at the time the claim is made, an assessment has not been made under the Income Tax Assessment Act 1936 of the tax payable on each of those TFN claim persons' taxable income for that income year;
the Secretary can only determine the claim when the assessment has been made.
S 52D amended by No 53 of 2008, s 3 and Sch 1 item 26, by substituting "a CCB % of zero % applicable to him or her" for "the CCB % applicable to him or her calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %" in para (b), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 52D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52E
52E
Determination of entitlement - claim for care provided by an approved child care service
(Repealed by No 22 of 2017)
History
S 52E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52E formerly read:
SECTION 52E Determination of entitlement - claim for care provided by an approved child care service
52E
If:
(a)
the claim is for payment of child care benefit for a past period for care provided by an approved child care service; and
(b)
the Secretary is satisfied that the claimant is eligible under section 44 of the Family Assistance Act in respect of the period; and
(c)
the Secretary is satisfied that, if the claimant were to be entitled to be paid child care benefit in respect of the period, the amount of the entitlement would be more than a nil amount;
the Secretary must determine that the claimant is entitled to be paid child care benefit for the past period in respect of the child and the amount of the entitlement.
S 52E amended by No 53 of 2008, s 3 and Sch 1 items 27 and 28, by inserting "and" at the end of para (b) and inserting para (c), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 52E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52F
52F
Determination of entitlement - claim for care provided by a registered carer
(Repealed by No 22 of 2017)
History
S 52F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52F formerly read:
SECTION 52F Determination of entitlement - claim for care provided by a registered carer
52F
If:
(a)
the claim is for payment of child care benefit for a past period for care provided by a registered carer; and
(b)
the Secretary is satisfied that the claimant is eligible under section 45 of the Family Assistance Act in respect of the period;
the Secretary must determine that the claimant is entitled to be paid child care benefit for the past period in respect of the child and the amount of the entitlement.
S 52F inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52G
52G
Determination that no entitlement
(Repealed by No 22 of 2017)
History
S 52G repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52G formerly read:
SECTION 52G Determination that no entitlement
52G(1)
If the Secretary:
(a)
is satisfied that the claimant is eligible as mentioned in paragraph 52E(b) in respect of care provided to a child by an approved child care service during a past period; but
(b)
is not satisfied as mentioned in paragraph 52E(c) that, if the claimant were to be entitled to be paid child care benefit, the entitlement would be more than a nil amount;the Secretary must determine that the claimant is not entitled to be paid child care benefit for the past period in respect of that care.
52G(2)
If the Secretary is not satisfied that the claimant is eligible as mentioned in paragraph 52E(b) in respect of care provided to a child by an approved child care service during a past period, the Secretary must determine that the claimant is not entitled to be paid child care benefit for the past period in respect of that care.
52G(3)
If the Secretary is not satisfied as mentioned in section 52F, the Secretary must determine that the claimant is not entitled to be paid child care benefit for the past period in respect of the child.
S 52G substituted by No 53 of 2008, s 3 and Sch 1 item 29, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 52G formerly read:
SECTION 52G Determination that no entitlement
52G
If the Secretary is not satisfied as mentioned in section 52E or 52F, the Secretary must determine that the claimant is not entitled to be paid child care benefit for the past period in respect of the child.
S 52G inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52H
52H
When a determination is in force
(Repealed by No 22 of 2017)
History
S 52H repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52H formerly read:
SECTION 52H When a determination is in force
52H(1)
Subject to subsections (2) and (3), a determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.
Note:
A determination under subsection 52G(1) may cease to have effect under section 60.
History
S 52H(1) amended by No 50 of 2009, s 3 and Sch 5 item 4, by inserting the note at the end, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
52H(2)
If:
(a)
the claim is for payment of child care benefit for a past period for care provided by an approved child care service; and
(b)
a determination of no entitlement is made under subsection 52G(2) in respect of the claimant and the child as the claimant is not eligible under section 44 of the Family Assistance Act because of a failure to meet a requirement in paragraph 44(1)(a), (d) or (e) of that Act; and
(c)
the claimant makes a later effective claim for payment of child care benefit for a past period for care provided by an approved child care service to the child;
the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.
History
S 52H(2) amended by No 53 of 2008, s 3 and Sch 1 item 30, by substituting "subsection 52G(2)" for "section 52G" in para (b), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
52H(3)
If:
(a)
the claim is for payment of child care benefit for a past period for care provided by a registered carer; and
(b)
a determination of no entitlement is made under subsection 52G(3) in respect of the claimant and the child as the claimant is not eligible under section 45 of the Family Assistance Act because of a failure to meet a requirement in paragraph 45(1)(a), (f) or (g) of that Act; and
(c)
the claimant makes a later effective claim for payment of child care benefit for a past period for care provided by a registered carer to the child;
the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.
History
S 52H(3) amended by No 53 of 2008, s 3 and Sch 1 item 31, by substituting "subsection 52G(3)" for "section 52G" in para (b), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 52H inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 52J
52J
Notice of determination
(Repealed by No 22 of 2017)
History
S 52J repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 52J formerly read:
SECTION 52J Notice of determination
52J(1)
The Secretary must give notice of a determination under this Subdivision to the claimant, stating:
(a)
whether the claimant is entitled to be paid child care benefit for a past period in respect of the child under the determination; and
(b)
if the claimant is so entitled:
(i)
the name of the child in respect of whom the claimant is entitled; and
(ii)
the period in respect of which the determination is made; and
(iii)
the amount of the entitlement, how it is to be paid and to whom it will be paid; and
(iv)
that the claimant may apply for review of the determination in the manner set out in Part 5.
52J(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
S 52J inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision F - Determination of entitlement if individual claims payment of child care benefit by single payment/in substitution
History
Subdiv F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv F inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 53
53
Determination on effective claim
(Repealed by No 22 of 2017)
History
S 53 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53 formerly read:
SECTION 53 Determination on effective claim
53(1)
This Subdivision deals with determination of entitlement if an individual (the
claimant
) has made an effective claim for payment of child care benefit by single payment/in substitution because of the death of another individual in respect of a child (the
child
).
53(2)
If a claim is not effective, it is taken not to have been made.
S 53 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 53 see history note under Pt 3 Div 4 heading.
SECTION 53A
53A
Secretary must determine claim
(Repealed by No 22 of 2017)
History
S 53A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53A formerly read:
SECTION 53A Secretary must determine claim
53A
Subject to sections 53B and 53C, after the effective claim is made by the claimant, the Secretary must determine the claim in accordance with this Subdivision.
S 53A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 53B
53B
Restriction on determining claim where bank account details not provided
(Repealed by No 22 of 2017)
History
S 53B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53B formerly read:
SECTION 53B Restriction on determining claim where bank account details not provided
53B(1)
If the claimant makes a statement of the kind set out in paragraph 49G(2)(b), the Secretary can only determine the claim if, within 28 days after the claim is made, the claimant nominates, and provides details of, a bank account of a kind referred to in paragraph 49G(2)(a) into which the amount of the entitlement to child care benefit is to be paid.
53B(2)
If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.
S 53B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 53C
53C
Restriction on determining claim where tax file number not provided etc.
(Repealed by No 22 of 2017)
History
S 53C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53C formerly read:
SECTION 53C Restriction on determining claim where tax file number not provided etc.
53C(1)
If a TFN substitution person makes a statement of the kind set out in subsection 49F(4) or (5), the Secretary can only determine the claim concerned if the Commissioner of Taxation tells the Secretary the person's tax file number.
53C(2)
If the Secretary cannot determine the claim under subsection (1) because the Commissioner of Taxation tells the Secretary that:
(a)
the person does not have a tax file number; or
(b)
the person has not applied for a tax file number; or
(c)
an application by the person for a tax file number has been refused; or
(d)
the person has withdrawn an application for a tax file number;
the claim is taken never to have been made.
S 53C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 53D
53D
Determination of entitlement
(Repealed by No 22 of 2017)
History
S 53D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53D formerly read:
SECTION 53D Determination of entitlement
53D
If the Secretary is satisfied that:
(a)
the claimant is eligible for child care benefit under section 46 of the Family Assistance Act in respect of the child; and
(b)
if the claimant were to be entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child, the amount of the entitlement would be more than a nil amount;the Secretary must determine that the claimant is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child for the amount the Secretary considers the claimant eligible.
S 53D substituted by No 53 of 2008, s 3 and Sch 1 item 32, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 53D formerly read:
SECTION 53D Determination of entitlement
(53D)
If the Secretary is satisfied that the claimant is eligible for child care benefit under section 46 of the Family Assistance Act in respect of the child, the Secretary must determine that the claimant is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child for the amount the Secretary considers the claimant eligible.
S 53D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 53E
53E
Determination that no entitlement
(Repealed by No 22 of 2017)
History
S 53E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53E formerly read:
SECTION 53E Determination that no entitlement
53E(1)
If the Secretary:
(a)
is satisfied that the claimant is eligible as mentioned in paragraph 53D(a); but
(b)
is not satisfied as mentioned in paragraph 53D(b) that, if the claimant were to be entitled to be paid child care benefit, the amount of the entitlement would be more than a nil amount;the Secretary must determine that the claimant is not entitled, in respect of the child, to be paid child care benefit by single payment/in substitution because of the death of another individual.
53E(2)
If the Secretary is not satisfied that the claimant is eligible as mentioned in paragraph 53D(a), the Secretary must determine that the claimant is not entitled, in respect of the child, to be paid child care benefit by single payment/ins substitution because of the death of another individual.
S 53E substituted by No 53 of 2008, s 3 and Sch 1 item 33, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 53E formerly read:
SECTION 53E Determination that no entitlement
(53E)
If the Secretary is not satisfied that the claimant is so eligible under section 46 of the Family Assistance Act, the Secretary must determine that the claimant is not entitled, in respect of the child, to be paid child care benefit by single payment/in substitution because of the death of another individual.
S 53E inserted by No 45 of 2000, s3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 53F
53F
When a determination is in force
(Repealed by No 22 of 2017)
History
S 53F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53F formerly read:
SECTION 53F When a determination is in force
53F(1)
Subject to subsections (2) and (3), a determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.
Note:
A determination under subsection 53E(1) may cease to have effect under section 60A.
History
S 53F(1) amended by No 50 of 2009, s 3 and Sch 5 item 5, by inserting the note at the end, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
53F(2)
If:
(a)
the claim is for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service to the child; and
(b)
a determination of no entitlement is made under subsection 53E(2) in respect of the claimant because the other individual was not eligible under section 44 of the Family Assistance Act because of a failure to meet a requirement in paragraph 44(1)(a) or (e) of that Act; and
(c)
the claimant makes a later effective claim for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by the service to the child;
the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.
History
S 53F(2) amended by No 53 of 2008, s 3 and Sch 1 item 34, by substituting "subsection 53E(2)" for "section 53E" in para (b), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
53F(3)
If:
(a)
the claim is for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by a registered carer to the child; and
(b)
a determination of no entitlement is made under subsection 53E(2) in respect of the claimant because the other individual was not eligible under section 45 of the Family Assistance Act because of a failure to meet a requirement in paragraph 45(1)(a) or (g) of that Act; and
(c)
the claimant makes a later effective claim for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by a registered carer to the child;
the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.
History
S 53F(3) amended by No 53 of 2008, s 3 and Sch 1 item 35, by substituting "subsection 53E(2)" for "section 53E" in para (b), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 53F inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 53G
53G
Notice of determination
(Repealed by No 22 of 2017)
History
S 53G repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 53G formerly read:
SECTION 53G Notice of determination
53G(1)
The Secretary must give notice of a determination under this Subdivision to the claimant, stating:
(a)
whether the claimant is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child under the determination; and
(b)
if the claimant is so entitled, the amount of the entitlement, how it is to be paid and to whom it will be paid; and
(c)
that the claimant may apply for review of the determination under Part 5.
53G(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
S 53G inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision G - Determination of entitlement if claim by approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk
History
Subdiv G repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv G inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 54
54
Determination on effective claim
(Repealed by No 22 of 2017)
History
S 54 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 54 formerly read:
SECTION 54 Determination on effective claim
54(1)
This Subdivision deals with determination of entitlement if an approved child care service (the
claimant
) has made a claim for payment of child care benefit by fee reduction for care provided by the service to a child at risk (the
child
).
54(2)
If a claim is not effective, it is taken not to have been made.
54(3)
The claimant is taken to have made a claim under subsection 49(2).
54(4)
A determination of a weekly limit of hours is taken to have been made in respect of the claimant (see section 54C).
S 54 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 54 see history note under Pt 3 Div 4 heading.
SECTION 54A
54A
Secretary must determine claim
(Repealed by No 22 of 2017)
History
S 54A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 54A formerly read:
SECTION 54A Secretary must determine claim
54A
If an effective claim is made by the claimant, the Secretary must determine the claim in accordance with this Subdivision.
S 54A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 54B
54B
Determination of entitlement
(Repealed by No 22 of 2017)
History
S 54B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 54B formerly read:
SECTION 54B Determination of entitlement
54B(1)
If the claimant is eligible under section 47 of the Family Assistance Act for one or more sessions of care provided by the claimant to the child (
child at risk
) during a financial year, the Secretary must determine:
(a)
that the claimant is entitled to be paid child care benefit by fee reduction for the sessions at the rate;
(i)
certified by the claimant under subsection 76(2) of the Family Assistance Act; or
(ii)
determined by the Secretary under subsection 81(4) of that Act; and
(b)
the amount for which the Secretary considers the claimant eligible.
54B(2)
In making the determination of entitlement, the Secretary takes into account all of the following decisions:
(a)
certificates given by the claimant that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(4) or a rate under subsection 76(2) of the Family Assistance Act;
(b)
determinations made by the Secretary in respect of the claimant.
54B(3)
The Secretary does not determine an approved child care service's eligibility under section 47 of the Family Assistance Act (see section 47 of the Family Assistance Act).
54B(4)
A determination of entitlement is made after the end of the financial year in which the service was eligible under section 47 of the Family Assistance Act for care provided to the child.
54B(5)
A determination of entitlement comes into force when it is made and remains in force at all times afterwards.
S 54B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 54C
54C
Determination of weekly limit of hours
(Repealed by No 22 of 2017)
History
S 54C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 54C formerly read:
SECTION 54C Determination of weekly limit of hours
54C(1)
If the claimant is eligible under section 47 of the Family Assistance Act for one or more sessions of care provided by the claimant to the child at risk during a financial year, the Secretary is taken to have made a determination of a weekly limit of hours applicable to the service in respect of the child. The limit is 24 hours.
History
S 54C(1) amended by No 150 of 2005, s 3 and Sch 1 item 10, by substituting "24" for "20", applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
For transitional provision, see note under s 50H(3).
54C(2)
A determination of a weekly limit of hours comes into force immediately after the service becomes eligible under section 47 of the Family Assistance Act and remains in force at all times afterwards.
S 54C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 54D
54D
Notice of determination
(Repealed by No 22 of 2017)
History
S 54D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 54D formerly read:
SECTION 54D Notice of determination
54D(1)
The Secretary must give notice of a determination under section 54B to the claimant stating:
(a)
the name of the child in respect of whom the service is entitled to be paid child care benefit by fee reduction; and
(b)
the amount of the entitlement; and
(c)
the total amount of the child care benefit by fee reduction (if any) that the claimant is required, under section 219BA, to pass on to itself in respect of sessions of care provided to the child during the financial year; and
(d)
if the amount of the entitlement is greater than the total amount - the amount of the difference and how it will be paid; and
(e)
if the amount of the entitlement is less than the total amount - the amount of the difference, the fact that the amount is a debt, information relating to how and from whom the debt will be recovered; and
(f)
the period or periods in the financial year preceding the one in which the determination under section 54B is made during which the claimant provided the care for which the claimant is eligible; and
(g)
that the claimant may apply for review of the determination in the manner set out in Part 5.
History
S 54D(1) amended by No 118 of 2007, s 3 and Sch 1 item 20, by substituting para (c), effective 29 June 2007.For application and transitional provisions see note under Pt 8A heading. Para (c) formerly read:
(c)
the total amount already received by the claimant in respect of the financial year from one or more payments of an amount of an advance paid to reimburse the claimant the amount of the fee reductions made for care provided by the service to the child; and
54D(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
S 54D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision H - Matters relating to determinations
History
Subdiv H repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv H inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 55
55
DETERMINATION OF CCB % UNDER SECTION 50J MAY BE BASED ON ESTIMATE, INDEXED ESTIMATE OR INDEXED ACTUAL INCOME
(Repealed by No 22 of 2017)
History
S 55 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55 formerly read:
SECTION 55 DETERMINATION OF CCB % UNDER SECTION 50J MAY BE BASED ON ESTIMATE, INDEXED ESTIMATE OR INDEXED ACTUAL INCOME
55(1)
If:
(a)
a CCB % applicable to a claimant who is an individual is required to be determined under section 50J; and
(b)
subparagraph 7(a)(ii) of Part 4 of Schedule 2 to the Family Assistance Act does not apply to the claimant; and
(c)
the information about an amount needed by the Secretary for the calculation of the CCB % is not available (for example, because the adjusted taxable income of the claimant or another individual cannot be known until after the end of the relevant income year); and
(d)
the claimant gives the Secretary an estimate of the amount needed; and
(e)
the Secretary considers the estimate to be reasonable; and
(f)
since the estimate was given, the Secretary has not given the individual a notice under subsection 55AA(2) or 55AB(2) with a start day that has arrived or passed;
the Secretary may determine the CCB % applicable to the claimant on the basis of the estimate.
History
S 55(1) amended by No 36 of 2006, s 3 and Sch 2 items 11 and 12, by inserting para (f), applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
55(2)
This subsection applies if the claimant does not give the Secretary an estimate of the amount needed that the Secretary considers reasonable.
Note:
This means the Secretary must determine the CCB % of the claimant to be zero % (see subsection 50J(2)).
History
S 55(2) substituted by No 53 of 2008, s 3 and Sch 1 item 36, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 55(2) formerly read:
55(2)
If the claimant does not give the Secretary an estimate of the amount needed that the Secretary considers reasonable, the CCB % of the claimant will be calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %.
S 55 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 55 see history note under Pt 3 Div 4 heading.
55(3)
If:
(a)
a CCB % applicable to a claimant who is an individual is required to be calculated under Schedule 2 to the Family Assistance Act for the purpose of varying a determination of CCB % under Subdivision M, N, P, R, S, or V of Division 4 of this Part; and
(b)
the information about an amount needed by the Secretary to calculate the CCB % applicable to the claimant is not available; and
(c)
the Secretary has given the claimant a notice under subsection 55AA(2) or 55AB(2) with a start day that has arrived or passed; and
(d)
since the notice was given, the claimant has not given the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable;
the Secretary may determine the CCB % applicable to the claimant on the basis of the indexed estimate or indexed actual income stated in the notice (or, if the Secretary has given the claimant more than one notice with a start day that has arrived or passed - the notice with the most recent start day).
Note:
Section 55AC affects the meaning of this provision for members of couples.
History
S 55(3) inserted by No 36 of 2006, s 3 and Sch 2 item 13, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 55AA
55AA
INDEXED ESTIMATES
(Repealed by No 22 of 2017)
History
S 55AA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55AA formerly read:
SECTION 55AA INDEXED ESTIMATES
55AA(1)
The Secretary may calculate an indexed estimate for an individual under subsection (5), with a start day chosen by the Secretary, if:
(a)
the individual is a claimant, or the partner of a claimant, for child care benefit; and
(b)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant and the effect of the former determination is that the claimant is conditionally eligible for child care benefit by fee reduction; and
(c)
the CCB % is worked out on the basis of an estimate of the claimant's adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant.
Note:
Section 55AC affects the meaning of paragraph (1)(c) for members of couples.
55AA(2)
If the Secretary calculates an indexed estimate for the individual, the Secretary may give the claimant a notice:
(a)
stating the indexed estimate for the individual; and
(b)
specifying the start day used in the Secretary's calculation (which must be a Monday at least 14 days after the day on which the notice is given).
55AA(3)
The Secretary must not give a notice under subsection (2) stating an indexed estimate for the individual with a start day in an income year if the Secretary has already given a notice under subsection (2) stating an indexed estimate for that individual with a start day in the same income year.
55AA(4)
A notice given to a claimant under subsection (2) stating an indexed estimate for an individual has no effect if, before the start day specified in the notice for the indexed estimate, the Secretary gives the claimant a notice under subsection 55AB(2) stating an indexed actual income for the same individual. Any such notice under subsection 55AB(2) must specify a start day that is no earlier than the start day specified in the superseded notice.
55AA(5)
Calculate an indexed estimate (which may be nil) for the individual by multiplying the individual's current ATI number (see subsection (6)) by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal p laces, end in a number greater than 4):
AWE for the reference period in the most recent November
|
AWE for the reference period in the highest previous November |
where:
AWE
means the amount published by the Australian Statistician in a document titled "Average Weekly Earnings" under the headings "Average Weekly Earnings, Australia - Original - Persons - All employees total earnings" (or, if any of those change, in a replacement document or under replacement headings).
highest previous November
means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.
most recent November
means the November of the income year before the income year in which the start day occurs.
reference period
, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.
55AA(6)
For the purposes of subsection (5), the individual's
current ATI number
is:
(a)
if, at the time of calculation, the Secretary has given the claimant a notice under subsection 55AB(2) stating an indexed actual income for the individual with a start day that has not arrived - the indexed actual income stated in the notice; or
(b)
if paragraph (a) does not apply and the individual is the claimant - the amount the Secretary is permitted to use for the individual under section 55 (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 to the Family Assistance Act); or
(c)
if paragraph (a) does not apply and the individual is the claimant's partner - the amount the Secretary would be permitted to use for the individual under section 55 if the individual were the claimant (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 to the Family Assistance Act).
55AA(7)
A notice under subsection (2) is not a legislative instrument.
History
S 55AA inserted by No 36 of 2006, s 3 and Sch 2 item 14, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
S 55AA inserted by No 36 of 2006, s 3 and Sch 2 item 14, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 55AB
55AB
INDEXED ACTUAL INCOMES
(Repealed by No 22 of 2017)
History
S 55AB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55AB formerly read:
SECTION 55AB INDEXED ACTUAL INCOMES
55AB(1)
The Secretary may calculate an indexed actual income for an individual under subsection (4), with a start day chosen by the Secretary, if:
(a)
the individual is a claimant for, or the partner of a claimant for, child care benefit; and
(b)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant and the effect of the former determination is that the claimant is conditionally eligible for child care benefit by fee reduction; and
(c)
the CCB % is worked out on the basis of an indexed estimate for the claimant or an indexed actual income for the claimant; and
(d)
since the claimant was last given a notice under subsection 55AA(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for an individual, the claimant has not given the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable; and
(e)
the adjusted taxable income for an income year (
actual income
) of the individual (disregarding the effect for couples of clause 3 of Schedule 3 to the Family Assistance Act) becomes known to the Secretary and it is the most recent income year for which the individual's actual income is known to the Secretary.
Note:
Section 55AC affects the meaning of paragraph (1)(c) for members of couples.
55AB(2)
If:
(a)
the Secretary calculates an indexed actual income for the individual; and
(b)
the indexed actual income is greater than the individual's current ATI number (see subsection (5));
the Secretary may give the claimant a notice:
(c)
stating the indexed actual income for the individual; and
(d)
specifying the start day used in the Secretary's calculation (which must be a Monday at least 14 days after the day on which the notice is given).
55AB(3)
A notice given to a claimant under subsection (2) stating an indexed actual income for an individual has no effect if, before the start day specified in the notice, the Secretary gives the claimant another notice under that subsection 55AA(2) stating an indexed estimate or indexed actual income for the same individual. Any other such notice must specify a start day that is no earlier than the start day specified in the superseded notice.
55AB(4)
Calculate an indexed actual income (which may be nil) for the individual by multiplying the actual income of the individual which became known to the Secretary by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):
AWE for the reference period in the most recent November
|
AWE for the reference period in the highest previous November |
where:
AWE
means the amount published by the Australian Statistician in a document titled "Average Weekly Earnings" under the headings "Average Weekly Earnings, Australia - Original - Persons - All employees total earnings" (or, if any of those change, in a replacement document or under replacement headings).
highest previous November
means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.
most recent November
means the November of the income year in which the start day occurs.
reference period
, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.
55AB(5)
For the purposes of paragraph (2)(b), the individual's
current ATI number
is:
(a)
if, at the time of calculation, the Secretary has given the claimant a notice under subsection 55AA(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for the individual with a start day that has not arrived - the indexed estimate or indexed actual income stated in the notice; or
(b)
if paragraph (a) does not apply and the individual is the claimant - the amount the Secretary is permitted to use for the individual under section 55 (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 of the Family Assistance Act); or
(c)
if paragraph (a) does not apply and the individual is the claimant's partner - the amount the Secretary would be permitted to use for the individual under section 55 (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 of the Family Assistance Act).
55AB(6)
A notice under subsection (2) is not a legislative instrument.
History
S 55AB inserted by No 36 of 2006, s 3 and Sch 2 item 14, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
S 55AB inserted by No 36 of 2006, s 3 and Sch 2 item 14, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 55AC
55AC
INDEXED ESTIMATES AND INDEXED ACTUAL INCOMES FOR MEMBERS OF COUPLES
(Repealed by No 22 of 2017)
History
S 55AC repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55AC formerly read:
SECTION 55AC INDEXED ESTIMATES AND INDEXED ACTUAL INCOMES FOR MEMBERS OF COUPLES
55AC(1)
This section applies in relation to any individual who is a member of a couple.
55AC(2)
For the purposes of the Family Assistance Act, any reference in this Act to CCB % being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (3).
55AC(3)
The reference is taken to be a reference to CCB % being determined or worked out on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with:
(a)
the indexed estimate or indexed actual income for the individual's partner stated in a notice given to:
(i)
if the individual is the claimant for child care benefit - the individual; or
(ii)
if the individual is the partner of the claimant for child care benefit - the individual's partner;
under subsection 55AA(2) or 55AB(2) with a start day that has arrived or passed (or, if the Secretary has given more than one such notice - the notice with the most recent start day); or
(b)
if there is no such indexed estimate or indexed actual income - a reasonable estimate of the adjusted taxable income of the individual's partner (disregarding the effect of clause 3 of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.
History
S 55AC(3) substituted by No 82 of 2006, s 3 and Sch 10 item 3, effective 1 July 2006. S 55AC(3) formerly read:
55AC(3)
The reference is taken to be a reference to CCB % being determined or worked out on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with the indexed estimate or indexed actual income for the individual's partner stated in a notice given to:
(a)
if the individual is the claimant for child care benefit - the individual; or
(b)
if the individual is the partner of the claimant for child care benefit - the individual's partner;
under subsection 55AA(2) or 55AB(2) with a start day that has arrived or passed (or, if the Secretary has given more than one such notice - the notice with the most recent start day).
S 55AC inserted by No 36 of 2006, s 3 and Sch 2 item 14, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
S 55AC inserted by No 36 of 2006, s 3 and Sch 2 item 14, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 55AD
55AD
Adjustment of indexed estimates and indexed actual incomes
(Repealed by No 22 of 2017)
History
S 55AD repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55AD formerly read:
SECTION 55AD Adjustment of indexed estimates and indexed actual incomes
Estimate of adjusted fringe benefits total
55AD(1)
If:
(a)
the Secretary is applying section 55AA or 55AB and the start day is 1 July 2008 or a later day; and
(b)
apart from this subsection, the Secretary would be required to take into account an estimate of an individual's adjusted fringe benefits total for the 2007-08 income year or an earlier income year;then the Secretary is instead to take into account the amount worked out using the formula: where:
FBT rate
is the rate of tax set by the Fringe Benefits Tax Act 1986 for the FBT year (as defined in the Fringe Benefits Tax Assessment Act 1986) beginning on the 1 April just before the start of the income year.
Note:
Section 55AA or 55AB requires an individual's adjusted taxable income (estimated or actual) to be taken into account. For the 2007-08 income year or an earlier income year, a component of that income is the individual's adjusted fringe benefits total.
Actual adjusted fringe benefits total
55AD(2)
If:
(a)
the Secretary is applying section 55AA or 55AB and the start day is 1 July 2008 or a later day; and
(b)
apart from this subsection, the Secretary would be required to take into account an individual's actual adjusted fringe benefits total for the 2007-08 income year;then the Secretary is instead to take into account the individual's actual reportable fringe benefits total for that income year.
Note:
Section 55AA or 55AB requires an individual's adjusted taxable income (estimated or actual) to be taken into account. For the 2007-08 income year or an earlier income year, a component of that income is the individual's adjusted fringe benefits total.
Definitions
55AD(3)
For the purposes of subsections (1) and (2), an individual's
adjusted fringe benefits total
for an income year is the amount worked out using the formula: where:
FBT rate
is the rate of tax set by the Fringe Benefits Tax Act 1986 for the FBT year (as defined in the Fringe Benefits Tax Assessment Act 1986) beginning on the 1 April just before the start of the income year.
reportable fringe benefits total
is the amount that the Secretary is satisfied is the individual's reportable fringe benefits total (as defined in the Fringe Benefits Tax Assessment Act 1986) for the income year.
55AD(4)
For the purposes of subsection (2), an individual's
reportable fringe benefits total
for an income year for an individual who is an employee (for the purposes of the
Fringe Benefits Tax Assessment Act 1986, whether it applies of its own force or because of the
Fringe Benefits Tax (Application to the Commonwealth) Act 1986) means the employee's reportable fringe benefits total (as defined in the
Fringe Benefits Tax Assessment Act 1986) for the income year.
S 55AD inserted by No fhcsiaol of 2008, s 3 and Sch 6 item 14, effective 1 April 2008.
SECTION 55A
55A
Determination of rate under Subdivision F may be based on estimate
(Repealed by No 22 of 2017)
History
S 55A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55A formerly read:
SECTION 55A Determination of rate under Subdivision F may be based on estimate
55A(1)
If:
(a)
an individual's rate of child care benefit for care provided by an approved child care service is required to be calculated for the purpose of making a determination under Subdivision F; and
(b)
the information about an amount needed by the Secretary to calculate the CCB % (CCB % is needed to calculate rate) applicable to the individual is not available; and
(c)
the claimant gives the Secretary an estimate of the amount needed; and
(d)
the Secretary considers the estimate to be reasonable;
the Secretary may determine the rate of child care benefit on the basis of the estimate.
55A(2)
If the claimant does not give the Secretary an estimate of the amount needed that the Secretary considers reasonable, the CCB % is zero %.
History
S 55A(2) amended by No 53 of 2008, s 3 and Sch 1 item 37, by substituting "zero %" for "to be calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 55A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 55B
55B
CCB % applicable to individual is zero % when certain other information not provided
(Repealed by No 22 of 2017)
History
S 55B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55B formerly read:
SECTION 55B CCB % applicable to individual is zero % when certain other information not provided
55B(1)
This subsection applies if:
(a)
an individual's CCB % is required to be determined under section 50J; and
(b)
the care in the claim concerned is care provided by an approved child care service; and
(c)
either of the following situations arises:
(i)
the individual does not give the Secretary information needed to work out the number of children the individual has in care of a particular kind;
(ii)
the claimant opted to have a CCB % of zero % applicable to him or her.
Note:
This means the Secretary must determine the CCB % of the claimant to be zero % (see subsection 50J(2)).
55B(2)
If:
(a)
the rate of child care benefit is required to be calculated for the purpose of making a determination of entitlement under Subdivision E or F; and
(b)
the care in the claim concerned is care provided by an approved child care service; and
(c)
either of the following situations arises:
(i)
the individual, or if the individual has died, another individual making a claim for child care benefit by single payment/in substitution because of the death of that individual, does not give the Secretary information needed to work out the number of children the individual has, or had, in care of a particular kind;
(ii)
the claimant opted to have a CCB % of zero % applicable to him or her;
the CCB % applicable to the claimant is zero %.
S 55B substituted by No 53 of 2008, s 3 and Sch 1 item 38, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 55B formerly read:
SECTION 55B CCB % applicable to individual when certain other information not provided
55B
If:
(a)
either:
(i)
an individual's CCB % is required to be determined under section 50J; or
(ii)
the rate of child care benefit is required to be calculated for the purpose of making a determination of entitlement under Subdivision E or F; and
(b)
the care in the claim concerned is care provided by an approved child care service; and
(c)
either of the following situations arises:
(i)
the individual, or if the individual has died, another individual making a claim for child care benefit by single payment/in substitution because of the death of that individual, does not give the Secretary information needed to work out the number of children the individual has, or had, in care of a particular kind;
(ii)
the claimant opted to have the CCB % calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %;
the CCB % is to be calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %.
S 55B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 55C
55C
CCB % applicable to individual when tax file number information not given
(Repealed by No 22 of 2017)
History
S 55C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55C formerly read:
SECTION 55C
SECTION 55C CCB % applicable to individual when tax file number information not given
55C
This section applies if:
(a)
either:
(i)
the Secretary makes a determination of conditional eligibility in respect of a claimant under section 50F in the situation referred to in subparagraph 50D(1)(d)(ii), (iii), (iv) or (v); or
(ii)
the Secretary makes a determination of conditional eligibility in respect of a claimant under section 50F in the situation referred to in subsection 50D(4); and
(b)
the claimant's CCB % is required to be determined under section 50J.
Note:
This means the Secretary must determine the CCB % of the claimant to be zero % (see subsection 50J(2)).
History
S 55C substituted by No 53 of 2008, s 3 and Sch 1 item 38, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 55C formerly read:
SECTION 55C CCB % applicable to individual when tax file number information not given
55C
If:
(a)
either:
(i)
the Secretary makes a determination ofconditional eligibility in respect of a claimant under section 50F in the situation referred to in subparagraph 50D(1)(d)(ii), (iii), (iv) or (v); or
(ii)
the Secretary makes a determination of conditional eligibility in respect of a claimant under section 50F in the situation referred to in subsection 50D(4); and
(b)
the claimant's CCB % is required to be determined under section 50J;
the CCB % is to be calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %.
S 55C substituted by No 53 of 2008, s 3 and Sch 1 item 38, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 55C formerly read:
SECTION 55C CCB % applicable to individual when tax file number information not given
55C
If:
(a)
either:
(i)
the Secretary makes a determination of conditional eligibility in respect of a claimant under section 50F in the situation referred to in subparagraph 50D(1)(d)(ii), (iii), (iv) or (v); or
(ii)
the Secretary makes a determination of conditional eligibility in respect of a claimant under section 50F in the situation referred to in subsection 50D(4); and
(b)
the claimant's CCB % is required to be determined under section 50J;
the CCB % is to be calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %.
S 55C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 55D
55D
Schooling % applicable to individual when certain information not provided
(Repealed by No 22 of 2017)
History
S 55D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 55D formerly read:
SECTION 55D Schooling % applicable to individual when certain information not provided
55D
If:
(a)
either:
(i)
an individual's schooling % is required to be determined under section 50K; or
(ii)
an individual's rate is required to be calculated for the purpose of making a determination of entitlement under Subdivision E or F for care provided by an approved child care service; and
(b)
the individual, or if the individual has died, another individual making a claim for child care benefit by single payment/in substitution because of the death of that individual, does not give the Secretary information about whether the child is a school child;
the Secretary must determine 85% as the schooling %.
S 55D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision J - Payment
History
Subdiv J repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv J inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 56
56
Payment in respect of claim for child care benefit by fee reduction if claim by individual
(Repealed by No 22 of 2017)
History
S 56 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 56 formerly read:
SECTION 56 Payment in respect of claim for child care benefit by fee reduction if claim by individual
56(1)
If:
(a)
a claimant who is an individual is entitled to be paid child care benefit by fee reduction for sessions of care provided by an approved child care service during an income year; and
(b)
the service is required, under section 219B, to pass on to the claimant a fee reduction for those sessions of care; and
(c)
the amount of the entitlement is greater than the total amount which the service is obliged to pass on to the claimant under that section for those sessions of care;
the Secretary must pay the amount of the difference to the claimant at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
History
S 56(1) amended by No 118 of 2007, s 3 and Sch 1 item 21, by substituting paras (b) and (c), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Paras (b) and (c) formerly read:
(b)
the fees for those sessions were reduced under section 219A; and
(c)
the amount of the entitlement is greater than the total amount of the fee reductions (if any) for those sessions;
56(2)
(Repealed by No 95 of 2002)
History
S 56(2) repealed by No 95 of 2002, s 3 Sch 2 item 8, effective 1 July 2003. For continuation provisions see history note under s 23(4). S 56(2) formerly read:
Making of payments to third parties
56(2)
The Secretary may pay the whole or part of the amount of the difference to someone other than the claimant, on behalf of the claimant. The payment may be made at such time and in such manner as the Secretary considers appropriate.
Secretary may make direction as to the manner of making payments
56(3)
The Secretary may direct that the whole or a part of an amount which is to be paid under this section is to be paid in a different way fromthat provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.
56(4)
This section is subject to Part 4 and to Division 3 of Part 8B.
History
S 56(4) substituted by No 95 of 2002, s 3 Sch 2 item 9, effective 1 July 2003. S 56(4) formerly read:
56(4)
This section is subject to Part 4 (Overpayments and debt recovery).
S 56 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 56 see history note under Pt 3 Div 4 heading.
SECTION 56A
56A
Payment of child care benefit for a past period and by single payment/in substitution
(Repealed by No 22 of 2017)
History
S 56A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 56A formerly read:
SECTION 56A Payment of child care benefit for a past period and by single payment/in substitution
56A(1)
If a claimant who is an individual:
(a)
is entitled to be paid child care benefit for a past period for care provided by:
(i)
an approved child care service; or
(ii)
a registered carer; or
(b)
is entitled to be paid child care benefit by single payment/in substitution;
the Secretary must pay the amount of the entitlement to the claimant at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
56A(2)
(Repealed by No 95 of 2002)
History
S 56A(2) repealed by No 95 of 2002, s 3 Sch 2 item 10, effective 1 July 2003. For continuation provisions see history note under s 23(4). S 56A(2) formerly read:
Making of payments to third parties
56A(2)
The Secretary may pay the whole or part of the amount of the difference to someone other than the claimant, on behalf of the claimant. The payment may be made at such time and in such manner as the Secretary considers appropriate.
Secretary may make direction as to the manner of making payments
56A(3)
The Secretary may direct that the whole or a part of anamount that is to be paid under this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.
56A(4)
This section is subject to Part 4 and to Division 3 of Part 8B.
History
S 56A(4) substituted by No 95 of 2002, s 3 Sch 2 item 11, effective 1 July 2003. S 56A(4) formerly read:
56A(4)
This section is subject to Part 4 (Overpayments and debt recovery).
S 56A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 56B
56B
Payment of child care benefit by fee reduction where claim by an approved child care service
(Repealed by No 22 of 2017)
History
S 56B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 56B formerly read:
SECTION 56B Payment of child care benefit by fee reduction where claim by an approved child care service
56B(1)
If:
(a)
a claimant that is an approved child care service is entitled to be paid child care benefit by fee reduction for sessions of care provided by the claimant to a child at risk during a financial year; and
(b)
the service is required, under section 219BA, to pass on to itself child care benefit by fee reduction for those sessions of care; and
(c)
the amount of the entitlement is greater than the total amount which the service is obliged to pass on to itself under that section for those sessions of care;
the Secretary must pay the amount of the difference to the claimant at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.
History
S 56B(1) amended by No 118 of 2007, s 3 and Sch 1 item 22, by substituting paras (b) and (c) for para (b), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (b) formerly read:
(b)
the amount of the entitlement is greater than the total amount already received by the claimant in respect of the financial year from one or more payments of an advance amount paid to reimburse the service the amount of the fee reductions made for care provided by the service to the child;
56B(2)
The Secretary may direct that the whole or a part of an amount which is to be paid under this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.
56B(3)
This section is subject to Part 4 (Overpayments and debt recovery).
S 56B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision K - Obligations to notify change of circumstances
History
Subdiv K repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv K inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 56C
56C
Individual's obligation to notify change of circumstances
(Repealed by No 22 of 2017)
History
S 56C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 56C formerly read:
SECTION 56C Individual's obligation to notify change of circumstances
Individual conditionally eligible and something happens to cause a loss of conditional eligibility
56C(1)
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual; and
(b)
either:
(i)
anything happens that causes the claimant to cease to be conditionally eligible; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the individual under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
56C(1A)
Strict liability applies to the following elements of an offence against subsection (1):
(a)
the element that a determination is a determination under section 50F;
(b)
the element that a notice is a notice given under section 57.
History
S 56C(1A) inserted by No 137 of 2001, s 3 and Sch 1 item 5, effective 1 October 2001.
Individual conditionally eligible and something happens to cause a reduction in the CCB %
56C(2)
If:
(a)
determinations of conditional eligibility under section 50F and CCB % under section 50J are in force in respect of a claimant who is an individual; and
(b)
the CCB % is calculated using Schedule 2 to the Family Assistance Act; and
(c)
either:
(i)
anything happens that causes a reduction in the CCB %; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
56C(2A)
Strict liability applies to the following elements of an offence against subsection (2):
(a)
the element that a determination is a determination under section 50F or 50J;
(b)
the element that Schedule 2 to the Family Assistance Act is used to calculate a CCB %;
(c)
the element that a notice is a notice given under section 57.
History
S 56C(2A) inserted by No 137 of 2001, s 3 and Sch 1 item 6, effective 1 October 2001.
Individual conditionally eligible, has a weekly limit of hours for a reason other than child at risk and something happens to cause a reduction in the weekly limit of hours
56C(3)
If:
(a)
determinations of conditional eligibility under section 50 and a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and
(b)
the weekly limit of hours is more than 24 because a circumstance set out in subsection 54(2), (4), (6) or (8) of the Family Assistance Act or subsection 55(2) or (4) of that Act applies to the eligibility of the claimant; and
(c)
either:
(i)
anything happens that causes a reduction in the weekly limit of hours; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
History
S 56C(3) amended by No 150 of 2005, s 3 and Sch 1 item 11, by substituting '24" for "20" in para (b), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
For transitional provision, see note under s 50H(3).
56C(3A)
Strict liability applies to the following elements of an offence against subsection (3):
(a)
the element that a determination is a determination under section 50F or 50H;
(b)
the element that a circumstance is a circumstance set out in subsection 54(2), (4), (6) or (8) of the Family Assistance Act or subsection 55(2) or (4) of that Act;
(c)
the element that a notice is a notice given under section 57.
History
S 56C(3A) inserted by No 137 of 2001, s 3 and Sch 1 item 7, effective 1 October 2001.
Individual conditionally eligible, has a 24 hour care limit and the number of 24 hour care periods is reduced
56C(4)
If:
(a)
determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and
(b)
the weekly limit of hours is a 24 hour care limit with one or more 24 hour care periods; and
(c)
either:
(i)
anything happens that causes a reduction in the number of 24 hour care periods in the week; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
56C(4A)
Strict liability applies to the following elements of an offence against subsection (4):
(a)
the element that a determination is a determination under section 50F or 50H;
(b)
the element that a notice is a notice given under section 57.
History
S 56C(4A) inserted by No 137 of 2001, s 3 and Sch 1 item 8, effective 1 October 2001.
Individual conditionally eligible and something happens to cause a reduction in schooling %
56C(5)
If:
(a)
determinations of conditional eligibility under section 50F and schooling % under section 50K are in force in respect of a claimant who is an individual; and
(b)
the schooling % is 100%; and
(c)
either:
(i)
anything happens that causes a reduction in the schooling % to 85%; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
56C(5A)
Strict liability applies to the following elements of an offence against subsection (5):
(a)
the element that a determination is a determination under section 50F or 50K;
(b)
the element that a notice is a notice given under section 57.
History
S 56C(5A) inserted by No 137 of 2001, s 3 and Sch 1 item 9, effective 1 October 2001.
Individual conditionally eligible, has a rate determined because of hardship and something happens that affects the rate
56C(6)
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual and a child; and
(b)
the claimant's rate of child care benefit for a session of care provided to the child is the rate determined by the Secretary under subsection 81(2) of the Family Assistance Act (hardship); and
(c)
either:
(i)
anything happens that affects the rate determined; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
56C(6A)
Strict liability applies to the following elements of an offence against subsection (6):
(a)
the element that a determination is a determination under section 50F;
(b)
the element that the determination of a rate is a determination under subsection 81(2) of the Family Assistance Act;
(c)
the element that a notice is a notice given under section 57.
History
S 56C(6A) inserted by No 137 of 2001, s 3 and Sch 1 item 10, effective 1 October 2001.
Individual eligible for special grandparent rate and something happens to cause a loss of eligibility for that rate
56C(7)
If:
(a)
a determination is in force under subsection 50T(1) with the effect that a claimant who is an individual is eligible for the special grandparent rate for a child; and
(b)
either:
(i)
anything happens that causes the claimant to cease to be eligible for that rate for the child; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
History
S 56C(7) inserted by No 132 of 2004, s 3 and Sch 4 item 17, applicable to sessions of care provided in a week that commences after 1 January 2005.
56C(8)
Strict liability applies to the following elements of an offence against subsection (7):
(a)
the element that a determination is a determination under subsection 50T(1);
(b)
the element that a notice is a notice given under section 57.
History
S 56C(8) inserted by No 132 of 2004, s 3 and Sch 4 item 17, applicable to sessions of care provided in a week that commences after 1 January 2005.
S 56C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 56D
56D
Approved child care service's obligation to notify of change of circumstances
(Repealed by No 22 of 2017)
History
S 56D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 56D formerly read:
SECTION 56D Approved child care service's obligation to notify of change of circumstances
Service eligible for child care benefit in respect of a child at risk, a weekly limit of hours is determined and something happens to cause a reduction in weekly limit of hours
56D(1)
If:
(a)
a claimant that is an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the claimant to a child at risk; and
(b)
a determination of a weekly limit of hours under section 54C in respect of the claimant and the child is in force; and
(c)
the weekly limit of hours is more than 24 because a circumstance under subsection 54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act applies; and
(d)
either:
(i)
anything happens that causes a reduction in the weekly limit of hours; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: 60 penalty units.
History
S 56D(1) amended by No 150 of 2005, s 3 and Sch 1 item 12, by substituting ``24'' for ``20'' in para (c), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
For transitional provision, see note under s 50H(3).
56D(1A)
Strict liability applies to the following elements of an offence against subsection (1):
(a)
the element that a child care service's eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;
(b)
the element that a determination is a determination under section 54C;
(c)
the element that a circumstance is a circumstance under subsection (3), (5), (7),(9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act;
(d)
the element that a notice is a notice given under section 57.
History
S 56D(1A) inserted by No 137 of 2001, s 3 and Sch 1 item 11, effective 1 October 2001.
Service eligible for child care benefit in respect of a child at risk and something happens that affects the rate
56D(2)
If:
(a)
a claimant that is an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the claimant to a child at risk; and
(b)
a rate, determined by the Secretary in respect of the claimant and the child under subsection 81(4) of the Family Assistance Act, is in force; and
(c)
either:
(i)
anything happens that would have the effect that the rate should not apply; or
(ii)
the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: 60 penalty units.
56D(2A)
Strict liability applies to the following elements of an offence against subsection (2):
(a)
the element that a child care service's eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;
(b)
the element that a determination of a rate is a determination under subsection 81(4) of the Family Assistance Act;
(c)
the element that a notice is a notice given under section 57.
History
S 56D(2A) inserted by No 137 of 2001, s 3 and Sch 1 item 12, effective 1 October 2001.
Individual conditionally eligible, individual's rate is determined because child at risk and something happens that affects the rate
56D(3)
If:
(a)
a claimant who is an individual has made a claim for child care benefit by fee reduction for care provided by an approved child care service to a child; and
(b)
a determination of conditional eligibility under section 50F is in force in respect of the claimant and the child; and
(c)
the rate applicable to the claimant is as determined by the Secretary under subsection 81(3) of the Family Assistance Act; and
(d)
either:
(i)
anything happens that would have the effect that the rate should no longer apply; or
(ii)
the service becomes aware that anything is likely to happen that will have that effect;
the service must, in the manner set out in a written notice given to the service under section 57, as soon as practicable after the service becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: 60 penalty units.
56D(3A)
Strict liability applies to the following elements of an offence against subsection (3):
(a)
the element that a determination is a determination under section 50F;
(b)
the element that a determination of a rate is a determination under subsection 81(3) of the Family Assistance Act;
(c)
the element that a notice is a notice given under section 57.
History
S 56D(3A) inserted by No 137 of 2001, s 3 and Sch 1 item 13, effective 1 October 2001.
Individual conditionally eligible, individual's weekly limit of hours is determined because Secretary considers the child is at risk and something happens to cause a reduction of the weekly limit of hours
56D(4)
If:
(a)
a claimant who is an individual has made a claim for child care benefit by fee reduction for care provided by an approved child care service to a child; and
(b)
determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force in respect of the claimant and the child; and
(c)
the weekly limit of hours is such because a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act (child at risk) applies to the eligibility of the claimant; and
(d)
either:
(i)
anything happens that would have the effect that the weekly limit of hours should not be as high; or
(ii)
the service becomes aware that anything is likely to happen that will have that effect;
the service must, in the manner set out in a written notice given to the service under section 57, as soon as practicable after the service becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: 60 penalty units.
56D(4A)
Strict liability applies to the following elements of an offence against subsection (4):
(a)
the element that a determination is a determination under section 50F;
(b)
the element that a determination is a determination under section 50H;
(c)
the element that a circumstance is a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act;
(d)
the element that a notice is a notice given under section 57.
History
S 56D(4A) inserted by No 137 of 2001, s 3 and Sch 1 item 14, effective 1 October 2001.
Service determined to be sole provider and ceases to be sole provider
56D(5)
If:
(a)
a determination is in force under section 57 of the Family Assistance Act in respect of an approved child care service that the service is the sole provider in an area; and
(b)
either:
(i)
anything happens that would have the effect that the service would no longer be the sole provider in that area; or
(ii)
the service becomes aware that anything is likely to happen that will have that effect;
the service must, in the manner set out in a written notice given to the service under section 57, as soon as practicable after the service becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: 60 penalty units.
56D(5A)
Strict liability applies to the following elements of an offence against subsection (5):
(a)
the element that a determination is a determination under section 57 of the Family Assistance Act;
(b)
the element that a notice is a notice given under section 57.
History
S 56D(5A) inserted by No 137 of 2001, s 3 and Sch 1 item 15, effective 1 October 2001.
S 56D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision L - Secretary's powers
History
Subdiv L repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv L inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 57
57
Secretary's power to approve a manner of notification for the purposes of sections 56C and 56D
(Repealed by No 22 of 2017)
History
S 57 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57 formerly read:
SECTION 57 Secretary's power to approve a manner of notification for the purposes of sections 56C and 56D
57(1)
The Secretary must approve a manner of notification that a person is to use when notifying the Secretary of a thing under section 56C or 56D (change of circumstances).
57(2)
The Secretary must, by written notice, notify the person of the approved manner of notification.
S 57 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 57 see history note under Pt 3 Div 4 heading.
SECTION 57A
57A
Secretary's power to require bank account details
(Repealed by No 22 of 2017)
History
S 57A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57A formerly read:
SECTION 57A Secretary's power to require bank account details
57A
If:
(a)
a determination under section 50F is in force under which a claimant who is an individual is conditionally eligible for child care benefit by fee reduction; or
(b)
the claimant has not nominated a bank account into which the amount of the difference referred to in subsection 56(1) is to be paid;
the Secretary may require the claimant to give the Secretary, within 28 days of the requirement being made, details of a bank account maintained by the claimant alone, or jointly or in common with someone else, into which the amount of the difference is to be paid.
S 57A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 57B
57B
Secretary's powers to request in claim form tax file number etc. of TFN claim persons
(Repealed by No 22 of 2017)
History
S 57B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57B formerly read:
SECTION 57B Secretary's powers to request in claim form tax file number etc. of TFN claim persons
57B(1)
The Secretary may request, in a claim form for child care benefit by fee reduction, that a statement of one of the kinds set out in subsections (2), (3) or (4) is made in relation to each TFN claim person.
Statement of tax file number
57B(2)
The first kind of statement that can be made is a statement of the TFN claim person's tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.
Statement that TFN claim person does not know what his or her tax file number is etc.
57B(3)
The second kind of statement that can be made is a statement by the TFN claim person 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
57B(4)
The third kind of statement that can be made is a statement by the TFN claim person 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.
How statement to be given
57B(5)
A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement if Secretary determines
57B(6)
The Secretary may determine that the request in subsection (1) does not apply to a TFN claim person if:
(a)
the person is, or was, the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection (3) or (4).
Exemption from tax file number requirement if claimant opts for certain things in the claim form
57B(7)
The request in subsection (1) does not apply to a TFN claim person if, in the claim, the person opted to have a CCB % of zero % applicable to him or her.
History
S 57B(7) amended by No 53 of 2008, s 3 and Sch 1 item 39, by substituting "a CCB % of zero % applicable to him or her" for "the CCB % applicable to him or her calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 57B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 57C
57C
Secretary's power to request tax file numbers etc. of certain TFN claim persons
(Repealed by No 22 of 2017)
History
S 57C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57C formerly read:
SECTION 57C Secretary's power to request tax file numbers etc. of certain TFN claim persons
57C
If:
(a)
an individual makes a claim for payment of child care benefit by fee reduction for care provided by an approved child care service; and
(b)
the claimant does not opt in the claim to have a CCB % of zero % applicable to him or her; and
(c)
the claimant does not give the Secretary in the claim the tax file number of a TFN claim person; and
(d)
the TFN claim person does not make a statement of a kind set out in subsection 57B(3) or (4); and
(e)
the Secretary has not exempted the TFN claim person under subsection 57B(6) from giving the person's tax file number or making a statement of a kind referred to in subsection 57B(3) or (4);
the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, the tax file number of a TFN claim person.
S 57C amended by No 53 of 2008, s 3 and Sch 1 item 40, by substituting "a CCB % of zero % applicable to him or her" for "the CCB % applicable to him or her calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %" in para (b), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 57C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 57D
57D
Secretary's power to request tax file numbers of TFN determination persons
(Repealed by No 22 of 2017)
History
S 57D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57D formerly read:
SECTION 57D Secretary's power to request tax file numbers of TFN determination persons
57D(1)
If:
(a)
a determination under section 50F is in force under which a claimant who is an individual is conditionally eligible for child care benefit by fee reduction; or
(b)
a determination under section 52E is in force under which a claimant who is an individual is entitled to be paid child care benefit for a past period for care provided by an approved child care service;
the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, a statement, in relation to a specified TFN determination person, of whichever of the kinds set out in subsection (2), (3) or (4) the claimant chooses.
Statement of tax file number
57D(2)
The first kind of statement that can be made is a statement of the TFN determination person's tax file number. Regardless of who the TFN determination person is, this kind of statement can be made by the claimant only.
Statement that TFN determination person does not know what his or her tax file number is etc.
57D(3)
The second kind of statement that can be made is a statement by the TFN determination person 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
57D(4)
The third kind of statement that can be made is a statement by the TFN determination person 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.
S 57D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 57E
57E
Secretary's power to require immunisation details
(Repealed by No 22 of 2017)
History
S 57E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57E formerly read:
SECTION 57E Secretary's power to require immunisation details
57E
If a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual and a child with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child, the Secretary may, by written notice given to the claimant, require that the child meets the immunisation requirement set out in section 6 of the Family Assistance Act in respect of the child within 63 days of the notice.
S 57E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 57F
57F
Secretary's power to require data verification information
(Repealed by No 22 of 2017)
History
S 57F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57F formerly read:
SECTION 57F Secretary's power to require data verification information
57F(1)
If a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction, the Secretary may, by written notice given to the claimant, require the claimant to give the Secretary, within the time specified in the notice, the information specified in the data verification form accompanying the notice.
57F(2)
To avoid doubt, the Secretary may, before the start of the first week commencing after 1 July 2006, give a notice under subsection (1) requiring the claimant to give the Secretary information about whether or not the claimant will satisfy the work/training/study test on or after the start of the first week commencing after 1 July 2006.
Note:
The Family and Community Services Legislation Amendment (Welfare to Work) Act 2005 amends the work/training/study test and applies from the start of the first week commencing after 1 July 2006.
History
S 57F(2) inserted by No 150 of 2005, s 3 and Sch 2 item 16, applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 57F inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 57G
57G
Secretary's power to require further information about children enrolled in child care
(Repealed by No 22 of 2017)
History
S 57G repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 57G formerly read:
SECTION 57G Secretary's power to require further information about children enrolled in child care
57G(1)
The Secretary may, by notice, require an approved child care service to give the Secretary further information in relation to any aspect of the care provided, or expected to be provided in the future, to all children:
(a)
in relation to whom:
(i)
the service has given the Secretary notice of enrolment under sections 219A and 219AB, or sections 219AA and 219AB;
(ii)
the Secretary has confirmed the enrolment in accordance with section 219AE; and
(b)
who remain enrolled for care by the service.
57G(2)
The notice must specify either:
(a)
the period in relation to which the information must be provided; or
(b)
the intervals in which the information must be provided.
57G(3)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
57G(4)
Without limiting subsection (3), the Secretary may approve notification of the information by making the notice available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which it is made available.
57G(5)
The information must be given to the Secretary by the service in the form, and in the manner or way, approved by the Secretary.
Subdivision M - Variations of determinations if failure to provide tax file numbers or bank account details or to meet the immunisation requirement
History
Subdiv M repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv M inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 58
58
Variation where failure to provide tax file number
(Repealed by No 22 of 2017)
History
S 58 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 58 formerly read:
SECTION 58 Variation where failure to provide tax file number
Non-compliance with request
58(1)
If:
(a)
either:
(i)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; or
(ii)
a determination of entitlement under section 52E is in force in respect of a claimant who is an individual to be paid child care benefit for a past period for care provided by an approved child care service; and
(b)
the Secretary makes a request under subsection 57D(1) (request for tax file number) of the claimant concerned; and
(c)
the claimant does not comply with the request within 28 days of the request being made;
then, subject to subsection (2), the consequence in subsection (5) or (6) applies, as the case requires.
Exemption from request under subsection 57D(1)
58(2)
The Secretary may determine that the consequence in subsection (5) or (6) does not apply if:
(a)
the TFN determination person concerned is or was the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection 57D(3) or (4).
Statement made by TFN determination person under subsection 57D(3)
58(3)
If:
(a)
the Secretary makes a request under subsection 57D(1); and
(b)
by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 57D(3); and
(c)
the Commissioner of Taxation tells the Secretary that the person has no tax file number;
the consequence in subsection (5) or (6) applies, as the case requires.
Statement made by TFN determination person under subsection 57D(4)
58(4)
If:
(a)
the Secretary makes a request under subsection 57D(1); and
(b)
by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 57D(4); and
(c)
the Commissioner of Taxation tells the Secretary that the person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;
the consequence in subsection (5) or (6) applies, as the case requires.
Variation of determination of CCB %
58(5)
For the purposes of subsection (1), (3) or (4), if the situation in subparagraph (1)(a)(i) applies, the Secretary may vary the determination of CCB % applicable to the claimant with the effect that the CCB % is zero %. The variation takes effect from the Monday after the day the variation is made.
History
S 58(5) amended by No 53 of 2008, s 3 and Sch 1 item 41, by substituting "zero %" for "to be recalculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
Variation of determination of entitlement in respect of past period claim by individual
58(6)
For the purposes of subsection (1), (3) or (4), if the situation in subparagraph (1)(a)(ii) applies, the Secretary may vary the determination of entitlement in respect of the past period to which the claim relates.
58(7)
For the purposes of this Act and the Family Assistance Act, the variation referred to in subsection (6) has the effect:
(a)
that the claimant continues to be entitled under section 52E to be paid an amount of child care benefit in respect of the past period to which the claim relates; but
(b)
that the amount of the entitlement is a nil amount.This subsection has effect despite section 52E.
History
S 58(7) substituted by No 53 of 2008, s 3 and Sch 1 item 42, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 58(7) formerly read:
58(7)
The variation referred to in subsection (6) has the effect that:
(a)
the rate used to calculate the amount of child care benefit that the claimant is entitled to be paid under a determination of entitlement is recalculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %; and
(b)
the claimant is entitled to be paid that amount.
The claimant is only entitled to be paid the amount as recalculated for that period.
Consequence of Secretary later becoming aware of tax file number
58(8)
If:
(a)
under subsection (5) or (6), the Secretary varies the determination; and
(b)
the Secretary finds out the tax file number of the TFN determination person concerned:
(i)
if subsection (5) applies - before the end of the income year following the one in which the variation took effect; or
(ii)
if subsection (6) applies - at any time after the variation took place;
the Secretary must vary the determination to undo the effect mentioned in subsection (5) or (6).
S 58 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 58 see history note under Pt 3 Div 4 heading.
SECTION 58A
58A
Variation where failure to comply with request for bank account details
(Repealed by No 22 of 2017)
History
S 58A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 58A formerly read:
SECTION 58A Variation where failure to comply with request for bank account details
Non-compliance with request
58A(1)
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual; and
(b)
the claimant is subject to a request under section 57A (bank account details); and
(c)
the claimant does not comply with the request within 28 days of the request being made;
then, subject to subsection (2), the consequence in subsection (3) applies.
Exemption from consequence in subsection (3)
58A(2)
The Secretary may determine that the consequence in subsection (3) does not apply if the Secretary considers that it is appropriate to exempt the claimant from the consequence.
Variation of determination
58A(3)
For the purposes of subsection (1), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not conditionally eligible from the Monday after the end of 28 days following the day the Secretary made the request under section 57A.
Consequence of Secretary later becoming aware of bank account details
58A(4)
If:
(a)
under subsection (3), the Secretary varies the determination; and
(b)
the Secretary finds out the bank account details of the claimant concerned before the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (3).
S 58A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 58B
58B
Variation where failure to comply with requirement to meet immunisation requirement
(Repealed by No 22 of 2017)
History
S 58B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 58B formerly read:
SECTION 58B Variation where failure to comply with requirement to meet immunisation requirement
58B
If:
(a)
a determination of conditional eligibility under section 50 is in force in respect of a claimant who is an individual and a child; and
(b)
the Secretary requires the child to meet the immunisation requirement under section 57E; and
(c)
the requirement is not met as provided for in that section;
the Secretary must vary the determination with the effect that the claimant is not conditionally eligible from the Monday after the day the variation is made.
S 58B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision N - Variations of determinations if failure to provide data verification
History
Subdiv N repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv N inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 59
59
Variation for failure to return the data verification form
(Repealed by No 22 of 2017)
History
S 59 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59 formerly read:
SECTION 59 Variation for failure to return the data verification form
59(1)
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the form is not returned in the time specified in the request;
the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from 1 July in the income year following the one in which the request was made.
59(2)
Without limiting subsection (1), if:
(a)
determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the request is a request for information of the kind described in subsection 57F(2); and
(d)
the form is not returned in the time specified in the request;
the Secretary may vary the determination of a weekly limit of hours with the effect that, on and from the start of the first week commencing after 1 July 2006, the limit is 24 hours.
History
S 59(2) inserted by No 150 of 2005, s 3 and Sch 2 item 18, applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
Consequence of Secretary later becoming aware of the information
59(3)
If:
(a)
under subsection (2), the Secretary varies the determination; and
(b)
before the end of the income year following the one in which the variation took effect:
(i)
the claimant returns the data verification form specified in the request under section 57F and provides the information mentioned in paragraph (2)(c); or
(ii)
the Secretary finds out the information (whether from the claimant or someone else);
the Secretary must vary the determination to undo the effect mentioned in subsection (2).
History
S 59(3) inserted by No 150 of 2005, s 3 and Sch 2 item 18, applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 59 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 59 see history note under Pt 3 Div 4 heading.
SECTION 59A
59A
Variation for failure to provide information in the data verification form relating to the name and address of the approved child care service
(Repealed by No 22 of 2017)
History
S 59A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59A formerly read:
SECTION 59A Variation for failure to provide information in the data verification form relating to the name and address of the approved child care service
59A
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the form is returned within the time specified in the request; and
(d)
the name and address of the approved child care service requested in the form is not provided;
the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from 1 July in the income year following the one in which the request was made.
S 59A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 59B
59B
Variation for failure to provide information in the data verification form relating to conditional eligibility
(Repealed by No 22 of 2017)
History
S 59B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59B formerly read:
SECTION 59B Variation for failure to provide information in the data verification form relating to conditional eligibility
59B
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the form is returned within the time specified in the request; and
(d)
any information requested in the form relevant to the claimant's conditional eligibility is not provided;
the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from 1 July in the income year following the one in which the request was made.
S 59B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 59C
59C
Variation for failure to provide information in the data verification form relating to schooling %
(Repealed by No 22 of 2017)
History
S 59C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59C formerly read:
SECTION 59C Variation for failure to provide information in the data verification form relating to schooling %
59C(1)
If:
(a)
determinations of conditional eligibility under section 50F and of schooling % under section 50K are in force in respect of a claimant who is an individual with the effect, in respect of the latter determination, that the schooling % is 100%; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the form is returned within the time specified in the request; and
(d)
any information requested in the form relevant to the schooling % is not provided;
the Secretary may vary the determination with the effect that the schooling % is 85% from 1 July in the income year following the one in which the request was made.
Consequence of Secretary later becoming aware of information
59C(2)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
before the end of the income year following the one in which the variation took effect the claimant gives the information mentioned in subsection (1) or the Secretary finds out the information;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 59C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 59D
59D
Variation for failure to provide information in the data verification form relating to CCB %
(Repealed by No 22 of 2017)
History
S 59D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59D formerly read:
SECTION 59D Variation for failure to provide information in the data verification form relating to CCB %
59D(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the form is returned within the time specified in the request; and
(d)
any information requested in the form relevant to the CCB %:
(i)
is not provided; or
(ii)
if the information is provided, and it is an estimate of an amount needed by the Secretary to calculate the CCB %, the Secretary considers that the estimate is not reasonable;
the Secretary may vary the determination with the effect that the CCB % is zero % from 1 July in the income year following the one in which the request was made.
History
S 59D(1) amended by No 53 of 2008, s 3 and Sch 1 item 43, by substituting "zero %" for "recalculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
Consequence of Secretary later becoming aware of the information
59D(2)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
before the end of the income year following the one in which the variation took effect:
(i)
if a situation referred to in subparagraph (1)(d)(i) applies - the claimant provides the information mentioned in that subparagraph; or
(ii)
if a situation referred to in subparagraph (1)(d)(ii) applies - the claimant provides a reasonable estimate of the amount mentioned in that subparagraph; or
(iii)
the Secretary finds out the actual amount needed to calculate the CCB % (whether from the claimant or someone else);
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 59D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 59E
59E
Variation where information in the data verification form relating to CCB % affects the CCB %
(Repealed by No 22 of 2017)
History
S 59E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59E formerly read:
SECTION 59E Variation where information in the data verification form relating to CCB % affects the CCB %
59E
If:
(a)
determinations of conditional eligibility under 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the form is returned within the time specified in the request; and
(d)
the information requested in the form relevant to the CCB % is provided; and
(e)
the information provided affects the CCB %;
the Secretary must vary the determination of CCB % with the effect that the CCB % is recalculated under Schedule 2 to the Family Assistance Act, using the information provided, from 1 July in the income year following the one in which the request was made.
S 59E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 59F
59F
Variation for failure to provide information in the data verification form relating to weekly limit of hours
(Repealed by No 22 of 2017)
History
S 59F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59F formerly read:
SECTION 59F Variation for failure to provide information in the data verification form relating to weekly limit of hours
59F(1)
If:
(a)
determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and
(b)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(c)
the form is returned within the time specified in the request; and
(d)
the information requested in the form relevant to the weekly limit is not provided;
the Secretary may vary the determination of a weekly limit of hours with the effect that the limit is 24 hours from 1 July in the income year following the one in which the request was made.
History
S 59F(1) amended by No 150 of 2005, s 3 and Sch 1 item 13, by substituting "24" for "20", applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
For transitional provision, see note under s 50H(3).
Consequence of Secretary later becoming aware of the information
59F(2)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
before the end of the income year following the one in which the variation took effect:
(i)
the claimant provides the information mentioned in paragraph (1)(d); or
(ii)
the Secretary finds out the information (whether from the claimant or someone else);
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 59F inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 59G
59G
Variation for failure to provide information in the data verification form relating to special grandparent rate
(Repealed by No 22 of 2017)
History
S 59G repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 59G formerly read:
SECTION 59G Variation for failure to provide information in the data verification form relating to special grandparent rate
59G(1)
If:
(a)
a determination is in force under section 50F with the effect that a claimant who is an individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and
(b)
a determination is in force under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and
(c)
the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and
(d)
the form is returned within the time specified in the request; and
(e)
any information requested in the form relevant to the claimant's eligibility for the special grandparent rate for the child is not provided;
the Secretary may vary the determination under subsection 50T(1) with the effect that the claimant is, from 1 July in the income year following the one in which the request was made, not eligible for the special grandparent rate for the child.
Consequence of Secretary later becoming aware of information
59G(2)
If:
(a)
under subsection (1), the Secretary varies the determination under subsection 50T(1); and
(b)
before the end of the income year following the one in which the variation took effect, the claimant gives the information mentioned in subsection (1) or the Secretary finds out the information;
the Secretary must vary the determination under subsection 50T(1) to undo the effect mentioned in subsection (1).
S 59G inserted by No 132 of 2004, s 3 and Sch 4 item 18, applicable to sessions of care provided in a week that commences after 1 January 2005.
Subdivision P - Other variations of determinations relating to CCB %
History
Subdiv P repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv P inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading, effective 1 July 2000.
SECTION 60
60
Variation where no entitlement for child care benefit for a past period because CCB % is zero %, and claimant gives information so that CCB % can be recalculated
(Repealed by No 22 of 2017)
History
S 60 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 60 formerly read:
SECTION 60 Variation where no entitlement for child care benefit for a past period because CCB % is zero %, and claimant gives information so that CCB % can be recalculated
Variations
60(1)
If:
(a)
a determination is made under subsection 52G(1) in response to a claim by an individual for child care benefit for a past period for care provided to a child by an approved child care service; and
(b)
when making the determination, subsection 55B(2) caused the Secretary not to be satisfied that, if the claimant were to be entitled to be paid child care benefit, the entitlement would be more than a nil amount; and
(c)
the claimant complies with:
(i)
if subparagraph 55B(2)(c)(i) applies to the claimant - subsection (3); and
(ii)
if subparagraph 55B(2)(c)(ii) applies to the claimant - subsection (4);
for the purposes of having the Secretary reconsider the claim; and
(d)
the Secretary is satisfied that, if the claimant were to be entitled to be paid child care benefit in respect of the period, the amount of the entitlement would be more than a nil amount;
the Secretary must vary the determination.
60(2)
For the purposes of the family assistance law, the variation has the effect that the determination is taken:
(a)
to cease to be a determination made under subsection 52G(1); and
(b)
to be a determination made under section 52E, at the time of the variation, in relation to the claim.
Section 52J does not apply in relation to paragraph (b).
Condition for variations
60(3)
The claimant complies with this subsection if the claimant gives the Secretary:
(a)
the information needed to work out the number of children in care of a particular kind; and
(b)
the tax file number of each of the TFN determination persons;
within 2 years after the end of the income year during which the determination was made under subsection 52G(1).
60(4)
The claimant complies with this subsection if the claimant:
(a)
informs the Secretary that the claimant no longer opts to have a CCB % of zero % applicable to him or her, and wants his or her claim reconsidered on the basis of the CCB % worked out under Schedule 2 to the Family Assistance Act; and
(b)
gives the Secretary the tax file number of each of the TFN determination persons;
within 2 years after the end of the income year during which the determination was made under subsection 52G(1).
S 60 substituted by No 50 of 2009, s 3 and Sch 5 item 6, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 60 formerly read:
SECTION 60 Variation where entitlement determination for child care benefit for a past period uses CCB % of zero % and claimant gives certain information so that entitlement is recalculated
60(1)
If:
(a)
a determination of entitlement under section 52E to be paid child care benefit for a past period for care provided by an approved child care service is in force in respect of a claimant who is an individual; and
(b)
the amount of child care benefit that the claimant is entitled to be paid under the determination was calculated under Schedule 2, to the Family Assistance Act using a CCB % of zero % as provided for in subsection 55B(2); and
(c)
one of the following situations arises:
(i)
the claimant to whom subparagraph 55B(2) (c)(i) applies gives the Secretary the information needed to work out the number of children in care of a particular kind and provides the tax file number of each of the TFN determination persons;
(ii)
the claimant to whom subparagraph 55B(2) (c)(ii) applies informs the Secretary that he or she wants the amount of the entitlement to be recalculated on the basis of the CCB % worked out under Schedule 2 to the Family Assistance Act and provides the tax file number of each of the TFN determination persons;
the Secretary must vary the determination.
History
S 60(1) amended by No 53 of 2008, s 3 and Sch 1 items 44 to 46, by substituting "a CCB % of zero % as provided for in subsection 55B(2)" for "the minimum taxable income % as the taxable income % as provided for in section 55B" in para (b), substituting "55B(2)(c)(i)" for "55B(c)(i)" in para (c)(i) and substituting "55B(2)(c)(ii)" for "55B(c)(ii)" in para (c)(ii), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
60(2)
The variation has the effect that the amount of benefit that the claimant is entitled to be paid under the determination is recalculated under Schedule 2 to the Family Assistance Act. The claimant is entitled to be paid the difference between the amount as recalculated and the amount of the benefit to which the claimant was previously determined to be entitled.
S 60 substituted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading, effective 1 July 2000. For former wording of s 60 see history note under Pt 3 Div 4 heading.
SECTION 60A
60A
Variation where no entitlement for child care benefit by single payment/in substitution because CCB % is zero %, and claimant gives information so that CCB % can be recalculated
(Repealed by No 22 of 2017)
History
S 60A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 60A formerly read:
SECTION 60A Variation where no entitlement for child care benefit by single payment/in substitution because CCB % is zero %, and claimant gives information so that CCB % can be recalculated
Variations
60A(1)
If:
(a)
a determination is made under subsection 53E(1) in response to a claim by an individual, in respect of a child, for child care benefit by single payment/in substitution because of the death of another individual; and
(b)
when making the determination, subsection 55A(2) or 55B(2) caused the Secretary not to be satisfied that, if the claimant were to be entitled to be paid child care benefit, the entitlement would be more than a nil amount; and
(c)
the claimant complies with:
(i)
if subsection 55A(2) applies to the claimant - subsection (3); and
(ii)
if subparagraph 55B(2)(c)(i) applies to the claimant - subsection (4); and
(iii)
if subparagraph 55B(2)(c)(ii) applies to the claimant - subsection (5);
for the purposes of having the Secretary reconsider the claim; and
(d)
the Secretary is satisfied that, if the claimant were to be entitled to be paid child care benefit in respect of the claim, the amount of the entitlement would be more than a nil amount;
the Secretary must vary the determination.
60A(2)
For the purposes of the family assistance law, the variation has the effect that the determination is taken:
(a)
to cease to be a determination made under subsection 53E(1); and
(b)
to be a determination made under section 53D, at the time of the variation, in relation to the claim.
Section 53G does not apply in relation to paragraph (b).
Condition for variations
60A(3)
The claimant complies with this subsection if:
(a)
the claimant gives the Secretary an estimate of the amount needed to calculate the CCB % used in calculating the amount of the benefit; and
(b)
the estimate is so given within 2 years after the end of the income year during which the determination was made under subsection 52G(1); and
(c)
the Secretary considers the estimate reasonable.
60A(4)
The claimant complies with this subsection if the claimant gives the Secretary:
(a)
the information needed to work out the number of children in care of a particular kind; and
(b)
the tax file number of each of the TFN determination persons;
within 2 years after the end of the income year during which the determination was made under subsection 53E(1).
60A(5)
The claimant complies with this subsection if the claimant:
(a)
informs the Secretary that the claimant no longer opts to have a CCB % of zero % applicable to him or her, and wants his or her claim reconsidered on the basis of the CCB % worked out under Schedule 2 to the Family Assistance Act; and
(b)
gives the Secretary the tax file number of each of the TFN determination persons;
within 2 years after the end of the income year during which the determination was made under subsection 53E(1).
S 60A substituted by No 50 of 2009, s 3 and Sch 5 item 6, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 60A formerly read:
SECTION 60A Variation where entitlement determination for child care benefit by single payment/in substitution uses CCB % of zero % and claimant gives certain information so that entitlement is recalculated
60A(1)
If:
(a)
a determination of entitlement under section 53D to be paid child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service is in force in respect of a claimant who is an individual; and
(b)
the amount of child care benefit that the claimant is entitled to be paid under the determination was calculated under Schedule 2 to the Family Assistance Act using a CCB % of zero % as provided for in subsection 55A(2) or 55B(2); and
(c)
one of the following situations arises:
(i)
the claimant to whom subsection 55A(2) applies gives the Secretary an estimate of the amount needed to calculate the CCB % used in calculating the amount of the benefit and the Secretary considers the estimate reasonable;
(ii)
the claimant to whom subparagraph 55B(2)(c)(i) applies gives the information needed to work out the number of children in care of a particular kind and provides the tax file number of each of the TFN substitution persons;
(iii)
the claimant to whom subparagraph 55B(2)(c)(ii) applies informs the Secretary that he or she wants the amount of the entitlement to be recalculated on the basis of the CCB % worked out under Schedule 2 to the Family Assistance Act and provides the tax file number of each of the TFN substitution persons;
the Secretary must vary the determination.
History
S 60A(1) amended by No 53 of 2008, s 3 and Sch 1 items 47 to 49, by substituting "a CCB % of zero % as provided for in subsection 55A(2) or 55B(2)" for "the minimum taxable income % as the taxable income % as provided for in subsection 55A(2) or section 55B" in para (b), substituting "55B(2)(c)(i)" for "55B(c)(i)" in para (c)(ii) and substituting "55B(2)(c)(ii)" for "55B(c)(ii)" in para (c)(iii), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
60A(2)
The variation has the effect that the amount of benefit that the claimant is entitled to be paid under the determination is recalculated under Schedule 2 to the Family Assistance Act. The claimant is entitled to be paid the difference between the amount as recalculated and the amount of the benefit to which the claimant was previously determined to be entitled.
S 60A inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 60B
60B
Variation where CCB % is zero % because of subsection 55(2) or 55B(1), or section 55C, and claimant gives certain information so that CCB % is recalculated
(Repealed by No 22 of 2017)
History
S 60B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 60B formerly read:
SECTION 60B Variation where CCB % is zero % because of subsection 55(2) or 55B(1), or section 55C, and claimant gives certain information so that CCB % is recalculated
60B(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and
(b)
the CCB % is zero % because any or all of the following provisions apply:
(i)
subsection 55(2);
(ii)
subparagraph 55B(1)(c)(i) or (ii);
(iii)
section 55C; and
(c)
later, the claimant:
(i)
if subsection 55(2) applies - gives the Secretary an estimate of the amount needed to calculate the CCB % which the Secretary considers reasonable; and
(ii)
if subparagraph 55B(1)(c)(i) applies - gives the Secretary the information needed to work out the number of children the individual has in care of a particular kind; and
(iii)
if subparagraph 55B(1)(c)(ii) applies - informs the Secretary that he or she wants the CCB % to be worked out under Schedule 2 to the Family Assistance Act, gives the Secretary the tax file number of each TFN determination person and an estimate of the amount needed to have the CCB % recalculated under that Act, which the Secretary considers reasonable; and
(iv)
if section 55C applies - gives the Secretary the tax file number of each TFN determination person;
the Secretary must vary the determination of CCB % with the effect that the CCB % is recalculated under Schedule 2 to the Family Assistance Act.
History
S 60B(1) amended by No 50 of 2009, s 3 and Sch 5 item 7, by substituting paras (b) and (c), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. Paras (b) and (c) formerly read:
(b)
the CCB % is zero % because subsection 55(2) or 55B(1), or section 55C, applies; and
(c)
later, the claimant:
(i)
if subsection 55(2) applies - gives the Secretary an estimate of the amount needed to calculate the CCB %, which the Secretary considers reasonable; or
(ii)
if subparagraph 55B(1)(c)(i) applies - gives the Secretary the information needed to work out the number of children the individual has in care of a particular kind; or
(iii)
if subparagraph 55B(1)(c)(ii) applies - informs the Secretary that he or she wants the CCB % to be worked out under Schedule 2 to the Family Assistance Act, gives the Secretary the tax file number of each TFN determination person and an estimate of the amount needed to have the CCB % recalculated under that Act, which the Secretary considers reasonable; or
(iv)
if section 55C applies - gives the Secretary the tax file number of each TFN determination person;
S 60B(1) amended by No 53 of 2008, s 3 and Sch 1 items 50 to 54, by substituting para (b), substituting "if subsection 55(2) applies" for "if the situation in subsection 55(2) arose" in para (c)(i), substituting "if subparagraph 55B(1)(c)(i) applies" for "if the situation in subparagraph 55B(c)(i) arose" in para (c)(ii), substituting "if subparagraph 55B(1)(c)(ii) applies" for "if the situation in subparagraph 55B(c)(ii) arose" in para (c)(iii) and substituting "if section 55C applies" for "if the situations in section 55C arose" in para (c)(iv), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. Para (b) formerly read:
(b)
the CCB % is calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income % because a certain situation referred to in section 55, 55B or 55C arises; and
60B(2)
The variation takes effect from the Monday after the day the variation is made.
60B(3)
After the Secretary makes the variation under subsection (1), the amount of the claimant's entitlement determined under section 51B in respect of the income year:
(a)
in which the variation took effect; and
(b)
preceding the income year in which the variation took effect;
is calculated, or recalculated, as the case may be, using the CCB % worked out under Schedule 2 to the Family Assistance Act.
S 60B inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 60C
60C
Variation where CCB % calculated under Schedule 2 to Family Assistance Act and Secretary receives information from Commissioner of Taxation
(Repealed by No 22 of 2017)
History
S 60C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 60C formerly read:
SECTION 60C Variation where CCB % calculated under Schedule 2 to Family Assistance Act and Secretary receives information from Commissioner of Taxation
60C(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J in force in respect of a claimant who is an individual were made after the period referred to in paragraph 50D(1)(e); and
(b)
later, the Commissioner of Taxation tells the Secretary one of the following things:
(i)
the TFN determination person has not applied for a tax file number;
(ii)
an application by the TFN determination person for a tax file number has been refused;
(iii)
the TFN determination person has withdrawn an application for a tax file number;
the Secretary must vary the determination of CCB % with the effect that the CCB % is zero %.
History
S 60C(1) amended by No 53 of 2008, s 3 and Sch 1 item 55, by substituting "zero %" for "calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
60C(2)
The variation takes effect from the Monday after the day the variation is made.
Consequence of Secretary later becoming aware of tax file number
60C(3)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
the Secretary finds out the tax file number of the TFN determination person before the end of the income year following the one in which the variation took effect, the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 60C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 60D
60D
Variation where income tax return not lodged
(Repealed by No 22 of 2017)
History
S 60D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 60D formerly read:
SECTION 60D Variation where income tax return not lodged
60D(1)
If:
(a)
a determination of entitlement under section 51B is in force in respect of a claimant who is an individual and a particular income year; and
(b)
any of the following people:
(i)
the claimant;
(ii)
the claimant's partner at the end of the second income year (the
later income year
) following the particular income year (if he or she was also the claimant's partner in the particular income year);
(iii)
both the claimant and the claimant's partner (as described in subparagraph (ii));
are required to lodge an income tax return for the particular income year but have not done so by the end of the later income year; and
(c)
by the end of the later income year, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income for the particular income year for everyone to whom paragraph (b) applies;
the Secretary may vary the determination.
History
S 60D(1) substituted by No 61 of 2005, s 3 and Sch 3 item 13, effective 26 June 2005. S 60D(1) formerly read:
60D(1)
If:
(a)
a determination of entitlement under section 51B is in force in respect of a claimant who is an individual and a particular income year; and
(b)
the claimant, or the claimant's partner, or both, are required to lodge an income tax return for the particular income year but have not done so by the end of the second income year (the
particular time
) following that particular income year; and
(c)
by the particular time, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income;
the Secretary may vary the determination.
60D(2)
For the purposes of this Act and the Family Assistance Act, the variation has the effect:
(a)
that the claimant continues to be entitled under section 51B to be paid an amount of child care benefit for the particular income year; but
(b)
that the amount of the entitlement is a nil amount.This subsection has effect despite subsection 51B(1).
History
S 60D(2) substituted by No 53 of 2008, s 3 and Sch 1 item 56, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 60D(2) formerly read:
60D(2)
The variation has the following effect:
(a)
the amount of the entitlement for the particular income year for which the Secretary considers the claimant to be eligible is the amount recalculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %; and
(b)
for that particular income year, the claimant is only entitled to be paid the amount as recalculated.
Consequence of later lodgment of income tax return
60D(3)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
an assessment has been made under the Income Tax Assessment Act 1936 for the particular income year for everyone:
(i)
who was required to lodge an income tax return as mentioned in subsection (1); and
(ii)
in respect of whom an assessment had not been made before the determination was varied;
the Secretary must again vary the determination so that it has the effect that the amount of the entitlement for which the Secretary considers the claimant to be eligible is the amount recalculated under Schedule 2 to the Family Assistance Act and, for that particular income year, the claimant is only entitled to the amount as recalculated.
S 60D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 60E
60E
VARIATION WHERE ESTIMATE OF AN AMOUNT GIVEN OTHER THAN IN RESPONSE TO A REQUEST BY THE SECRETARY IS NOT REASONABLE
(Repealed by No 22 of 2017)
History
S 60E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 60E formerly read:
SECTION 60E VARIATION WHERE ESTIMATE OF AN AMOUNT GIVEN OTHER THAN IN RESPONSE TO A REQUEST BY THE SECRETARY IS NOT REASONABLE
60E(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and
(b)
the claimant gives the Secretary, other than in response to a request by the Secretary under section 57F, an estimate of an amount needed by the Secretary to calculate CCB %; and
(c)
the Secretary does not consider the estimate to be reasonable;
the Secretary may vary the determination so that it has the effect that the CCB % is zero %.
History
S 60E(1) amended by No 53 of 2008, s 3 and Sch 1 item 57, by substituting "zero %" for "calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 60E(1) amended by No 36 of 2006, s 3 and Sch 2 item 15, by substituting "may" for "must" , applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
60E(2)
The variation takes effect from the Monday after the day the variation is made.
Consequence of later provision of reasonable estimate or Secretary finding out the actual amount
60E(3)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
either:
(i)
a variation under section 65B is made in respect of the claimant, by the end of the income year following the one in which the variation took effect; or
(ii)
the Secretary finds out the actual amount needed to calculate the CCB % (whether from the claimant or someone else) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 60E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision Q - Variation of determinations relating to conditional eligibility and schooling %
History
Subdiv Q repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv Q inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 61
61
Variation where schooling % is 85% under Section 55D and information about whether the child is a school child provided
(Repealed by No 22 of 2017)
History
S 61 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 61 formerly read:
SECTION 61 Variation where schooling % is 85% under Section 55D and information about whether the child is a school child provided
61(1)
If:
(a)
determinations of conditional eligibility under section 50F and of schooling % under section 50K are in force in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and
(b)
the schooling % is determined to be 85% under section 55D; and
(c)
later, the claimant provides the information, or the Secretary finds out, that the child is not a school child;
the Secretary must vary the determination of schooling % with the effect that the schooling % is 100%.
61(2)
The variation takes effect from the Monday after the day the variation is made.
S 61 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 61 see history note under Pt 3 Div 4 heading.
SECTION 61A
61A
Variation where failure to notify that the service has ceased to provide care to child
(Repealed by No 22 of 2017)
History
S 61A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 61A formerly read:
SECTION 61A Variation where failure to notify that the service has ceased to provide care to child
61A(1)
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the individual is conditionally eligible for child care benefit by fee reduction; and
(b)
the Secretary has reason to believe that care has ceased to be provided to the child the subject of the claim by the approved child care service last indicated by the claimant to the Secretary;
the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from the Monday after the day the variation is made.
Consequence of Secretary later finding out that child is receiving care from the service
61A(2)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
before the end of the income year following the one in which the variation took effect, the Secretary finds out that the child is receiving care from the service;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 61A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision R - Variations of determinations because of failure to meet requirements arising under Division 1 of Part 6
History
Subdiv R repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv R inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 62
62
Variation where failure to provide information relevant to conditional eligibility etc
(Repealed by No 22 of 2017)
History
S 62 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 62 formerly read:
SECTION 62 Variation where failure to provide information relevant to conditional eligibility etc
62(1)
If:
(a)
a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and
(b)
the Secretary:
(i)
in order to make a decision about the conditional eligibility at any time; or
(ii)
in order to make a decision about the claimant's eligibility for child care benefit by fee reduction under section 43 of the Family Assistance Act at any time; or
(iii)
in relation to a matter referred to in subsection 154(5) of this Act;
requires the claimant, or the claimant's partner, under Division 1 of Part 6 of this Act, to give information or produce documents; and
(c)
the claimant or the claimant's partner refuses or fails to comply with the requirements;
the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from the Monday after the day the variation is made.
History
S 62(1) amended by No 118 of 2007, s 3 and Sch 3 item 3, by substituting para (b), effective 29 June 2007. Para (b) formerly read:
(b)
the Secretary, in order to make a decision about the conditional eligibility at any time, requires the claimant, or the claimant's partner, under Division 1 of Part 6, to give information or produce documents; and
Consequence of later provision of information or documents
62(2)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 62 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 62 see history note under Pt 3 Div 4 heading.
SECTION 62A
62A
Variation where failure to provide information relevant to CCB %
(Repealed by No 22 of 2017)
History
S 62A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 62A formerly read:
SECTION 62A Variation where failure to provide information relevant to CCB %
62A(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; and
(b)
the Secretary, in order to make a decision about the CCB % applicable at any time, requires the claimant, or the claimant's partner, under Division 1 of Part 6, to give information or produce documents; and
(c)
the claimant or the claimant's partner refuses or fails to comply with the requirements;
the Secretary may vary the determination of the CCB % with the effect that the CCB % is zero %.
History
S 62A(1) amended by No 53 of 2008, s 3 and Sch 1 item 58, by substituting "zero %" for "recalculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %", applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
62A(2)
The variation has effect from the Monday after the day the variation is made.
Consequence of later provision of information or documents
62A(3)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 62A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 62B
62B
Variation where failure to provide information relevant to schooling %
(Repealed by No 22 of 2017)
History
S 62B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 62B formerly read:
SECTION 62B Variation where failure to provide information relevant to schooling %
62B(1)
If:
(a)
determinations of conditional eligibility under section 50F and of schooling % under section 50K are in force in respect of a claimant who is an individual with the effect, in respect of the latter determination, that the schooling % is 100%; and
(b)
the Secretary, in order to make a decision about the schooling % applicable at any time, requires the claimant, or the claimant's partner, under Division 1 of Part 6, to give information or produce documents; and
(c)
the claimant or the claimant's partner refuses or fails to comply with the requirements;
the Secretary may vary the determination of the schooling % with the effect that the schooling % is 85%.
62B(2)
The variation has effect from the Monday after the day the variation is made.
Consequence of later provision of information or documents
62B(3)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 62B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 62C
62C
Variation where failure to provide information relevant to a weekly limit of hours
(Repealed by No 22 of 2017)
History
S 62C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 62C formerly read:
SECTION 62C Variation where failure to provide information relevant to a weekly limit of hours
62C(1)
If:
(a)
determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and
(b)
the Secretary, in order to make a decision about the weekly limit of hours applicable at any time, requires the claimant, or the claimant's partner, under Division 1 of Part 6, to give information or produce documents; and
(c)
the claimant or the claimant's partner refuses or fails to comply with the requirements;
the Secretary may vary the determination of the weekly limit of hours with the effect that the limit is reduced to a limit specified by the Secretary.
62C(2)
The variation has effect from the Monday after the day the variation is made.
Consequence of later provision of information or documents
62C(3)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 62C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 62CA
62CA
Variation where failure to provide information relevant to eligibility for special grandparent rate
(Repealed by No 22 of 2017)
History
S 62CA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 62CA formerly read:
SECTION 62CA Variation where failure to provide information relevant to eligibility for special grandparent rate
62CA(1)
If:
(a)
a determination is in force under subsection 50T(1) with the effect that a claimant who is an individual is eligible for the special grandparent rate for a child; and
(b)
the Secretary, in order to make a decision about whether the claimant is eligible for that rate for the child at any time, requires the claimant, or the claimant's partner, under Division 1 of Part 6, to give information or produce documents; and
(c)
the claimant or the claimant's partner refuses or fails to comply with the requirements;
the Secretary may vary the determination with the effect that the individual is not eligible for that rate for the child.
62CA(2)
The variation has effect from the Monday after the day the variation is made.
Consequence of later provision of information or documents
62CA(3)
If:
(a)
under subsection (1), the Secretary varies the determination; and
(b)
the claimant, or the claimant's partner, gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;
the Secretary must vary the determination to undo the effect mentioned in subsection (1).
S 62CA inserted by No 132 of 2004, s 3 and Sch 4 item 19, applicable to sessions of care provided in a week that commences after 1 January 2005.
Subdivision S - Further variations after certain variations that can be undone
History
Subdiv S repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv S inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 62D
62D
Secretary finds out information after undoing period is over
(Repealed by No 22 of 2017)
History
S 62D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 62D formerly read:
SECTION 62D Secretary finds out information after undoing period is over
62D
If:
(a)
the Secretary makes a variation (the
first variation
) of a determination under sections 58, 59C, 59D, 59F, 59G, 60C, 60E, 62A, 62B, 62C and 62CA or under subsection 59(2); and
(b)
the period specified under the particular section passes during which the Secretary is required to vary again the determination to undo the effect of the first variation; and
(c)
after the period the Secretary is provided with the information, or finds out the information, the lack of which caused the Secretary to make the first variation;
the Secretary must again vary the determination using the information provided or found out with effect from the Monday after this variation.
History
S 62D amended by No 150 of 2005, s 3 and Sch 2 item 19, by inserting "or under subsection 59(2)" after "62CA", applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 62D amended by No 132 of 2004, s 3 and Sch 4 items 20 and 21, by inserting ", 59G" after "59F" and substituting ", 62C and 62CA" for "and 62C" in para (a), applicable to sessions of care provided in a week that commences after 1 January 2005.
S 62D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision T - Notice requirement for variations under Subdivision M, N, P, Q, R or S
History
Subdiv T repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv T inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 63
63
Notice of variation of determinations under Subdivision M, N, P, Q, R or S
(Repealed by No 22 of 2017)
History
S 63 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 63 formerly read:
SECTION 63 Notice of variation of determinations under Subdivision M, N, P, Q, R or S
63(1)
The Secretary must give notice of a variation of a determination under Subdivision M, N, P, Q, R or S to the claimant stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.
63(2)
(Repealed by No 118 of 2007)
History
S 63(2) repealed by No 118 of 2007, s 3 and Sch 1 item 24, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 63(2) formerly read:
63(2)
If a determination of conditional eligibility, CCB %, a weekly limit of hours or schooling %, is varied, the Secretary must also give notice of the variation to the approved child care service providing care to the child of the claimant.
63(2A)
(Repealed by No 118 of 2007)
History
S 63(2A) repealed by No 118 of 2007, s 3 and Sch 1 item 24, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 63(2A) formerly read:
63(2A)
If a determination under subsection 50T(1) whether a claimant is eligible for the special grandparent rate for a child is varied, the Secretary must also give notice of the variation to the approved child care service providing care to the child.
S 63(2A) inserted by No 132 of 2004, s 3 and Sch 4 item 22, applicable to sessions of care provided in a week that commences after 1 January 2005.
63(3)
The variation is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
History
S 63(3) amended by No 118 of 2007, s 3 and Sch 1 item 25, by omitting ", (2) or (2A)" after "subsection (1)",effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 63(3) amended by No 132 of 2004, s 3 and Sch 4 item 23, by substituting ", (2) or (2A)" for "or (2)", applicable to sessions of care provided in a week that commences after 1 January 2005.
63(4)
The Secretary may make notice of a variation of:
(a)
a determination of conditional eligibility; or
(b)
a determination of CCB%; or
(c)
a determination of a weekly limit of hours; or
(d)
a determination of schooling %; or
(e)
a determination under subsection 50T(1);available to the approved child care service providing care to the child, including by making the notice available to the service using an electronic interface.
History
S 63(4) inserted by No 118 of 2007, s 3 and Sch 1 item 26, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 63 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 63 see history note under Pt 3 Div 4 heading.
Subdivision U - Variations of determinations of weekly limit of hours because of a circumstance in section 54, 55 or 56 of the Family Assistance Act
History
Subdiv U repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv U inserted by No 45 of 2000, s 3 Sch 2 item 60. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 64
64
Determination of weekly limit of hours may be varied
(Repealed by No 22 of 2017)
History
S 64 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64 formerly read:
SECTION 64 Determination of weekly limit of hours may be varied
64(1)
After a determination of a weekly limit of hours has:
(a)
been made under section 50H in respect of an individual (a
claimant
); or
(b)
been taken to have been made under section 54C in respect of an approved child care service (a
claimant
);
it may be varied as provided for in this Subdivision.
64(2)
Whether a variation of a determination occurs depends on whether a circumstance listed in section 54, 55 or 56 of the Family Assistance Act applies in a week in respect of a claimant.
S 64 substituted by No 45 of 2000, s 3 Sch 2 item 60. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 64 see history note under Pt 3 Div 4 heading.
SECTION 64A
64A
Varying determination so that a limit of 50 hours in a week applies
(Repealed by No 22 of 2017)
History
S 64A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64A formerly read:
SECTION 64A Varying determination so that a limit of 50 hours in a week applies
Determination to which this section applies
64A(1)
This section applies to a determination of a weekly limit of hours:
(a)
in force under section 50H in respect of a claimant who is an individual and a child; or
(b)
in force under section 54C, in respect of a claimant that is an approved child care service and a child.
Variation by Secretary on application
64A(2)
A determination to which this section applies may be varied by the Secretary on application so that a limit of 50 hours in a week applies if:
(a)
a circumstance listed in subsection 54(2), (3), (4), (5), (6), (7), (8), (9), (12), (13) or (14) of the Family Assistance Act applies in the week; and
(b)
a limit of more than 50 hours does not apply in the week; and
(c)
a 24 hour care limit does not apply in the week.
Who may apply
64A(3)
An application under subsection (2) must be made by:
(a)
the claimant, if a circumstance listed in subsection 54(2), (3), (4), (5), (6), (7), (8), (9), (12), (13) or (14) of the Family Assistance Act applies in the week; or
(b)
the approved child care service providing care to the child, if a circumstance listed in subsection 54(12) of that Act applies in the week.
Variation is taken to have been made if an approved child care service gives certificate
64A(4)
A determination to which this section applies is taken to have been varied so that a limit of 50 hours in a week applies if the approved child care service providing the care to the child gives a certificate under subsection 54(10) of the Family Assistance Act in respect of the week.
Variations under subsection 59(2), section 59F and section 62C
64A(5)
If:
(a)
when a variation under subsection (2) takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and
(b)
the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;
the variation under 59(2) or under section 59F or 62C prevails over the variation under this section unless the variation under this section takes place because a circumstance listed in subsection 54(12) of the Family Assistance Act applies in a week.
History
S 64A(5) amended by No 150 of 2005, s 3 and Sch 2 items 20 to 22, by inserting "under subsection 59(2) or" after "in force" in para (a), inserting "under subsection 59(2) or" after "the variation" (first occurring) in para (b) and inserting "under subsection 59(2) or" after "the variation" (third last occurring), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 64A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.]
SECTION 64B
64B
Varying determination so that a limit of more than 50 hours in a week applies
(Repealed by No 22 of 2017)
History
S 64B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64B formerly read:
SECTION 64B Varying determination so that a limit of more than 50 hours in a week applies
Determination to which this section applies
64B(1)
This section applies to a determination of a weekly limit of hours:
(a)
in force under section 50H in respect of a claimant who is an individual and a child; or
(b)
in force under section 54C in respect of a claimant that is an approved child care service and a child.
Variation by Secretary on application
64B(2)
A determination to which this section applies may be varied by the Secretary on application so that a limit of more than 50 hours in a week applies if:
(a)
a circumstance listed in subsection 55(2), (3), (4), (5) or (8) of the Family Assistance Act applies in the week; and
(b)
a 24 hour care limit does not apply in the week.
Amount of limit
64B(3)
If the Secretary varies the determination because a circumstance listed in the section referred to in paragraph (2)(a) applies, the amount of the limit of hours more than 50 is the particular number of hours worked out using the relevant subsection.
Who may apply
64B(4)
An application under subsection (2) must be made by:
(a)
the claimant, if a circumstance listed in subsection 55(2), (3), (4) or (5) of the Family Assistance Act applies in the week; or
(b)
the approved child care service providing the care to the child, if a circumstance listed in subsection 55(8) of the Family Assistance Act applies in the week.
Variation if an approved child care service gives certificate
64B(5)
A determination to which this section applies is taken to have been varied so that a limit of more than 50 hours in a week applies if the approved child care service providing the care to the child gives a certificate under subsection 55(6) of the Family Assistance Act in respect of the week. The amount of the limit of hours more than 50 is the particular number of hours worked out by the service using that subsection.
Variations under subsection 59(2), section 59F and section 62C
64B(6)
If:
(a)
when a variation under subsection (2) takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and
(b)
the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;
the variation under subsection 59(2) or section 59F or 62C prevails over the variation under this section unless the variation under this section takes place because a circumstance listed in subsection 55(8) of the Family Assistance Act applies in a week.
History
S 64B(6) amended by No 150 of 2005, s 3 and Sch 2 items 23 to 25, by inserting "under subsection 59(2) or" after "in force" in para (a), inserting "under subsection 59(2) or" after "the variation" (first occurring) in para (b) and inserting "under subsection 59(2) or" after "the variation" (third last occurring), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 64B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 64C
64C
Varying determination so that a 24 hour care limit in a week applies
(Repealed by No 22 of 2017)
History
S 64C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64C formerly read:
SECTION 64C Varying determination so that a 24 hour care limit in a week applies
Determination to which this section applies
64C(1)
This section applies to a determination of a weekly limit of hours:
(a)
in force under section 50H in respect of a claimant who is an individual and a child; or
(b)
in force under section 54C in respect of a claimant that is an approved child care service and a child.
Variations by Secretary on application
64C(2)
A determination to which this section applies may be varied by the Secretary on application so that a 24 hour care limit in a week applies if the circumstances listed in subsection 56(6) or (8) of the Family Assistance Act apply in the week.
Who may apply
64C(3)
An application under subsection (2) must be made by the claimant.
Variation if an approved child care service gives certificate
64C(4)
A determination to which this section applies is taken to have been varied so that a 24 hour care limit in a week applies if the approved child care service providing the care to the child gives a certificate under subsection 56(3) or (4) of the Family Assistance Act in respect of the week.
Variations under subsection 59(2), section 59F and section 62C
64C(5)
If:
(a)
when a variation under this section takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and
(b)
the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;
the variation under subsection 59(2) or under section 59F or 62C prevails over the variation under this section.
History
S 64C(5) amended by No 150 of 2005, s 3 and Sch 2 items 26 to 28, by inserting "under subsection 59(2) or" after "in force" in para (a), inserting "under subsection 59(2) or" after "the variation" (first occurring) in para (b) and inserting "under subsection 59(2) or" after "the variation" (second last occurring), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 64C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 64D
64D
Varying determination so that a limit of 24 hours in a week applies
(Repealed by No 22 of 2017)
History
S 64D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64D formerly read:
SECTION 64D Varying determination so that a limit of 24 hours in a week applies
Determination to which this section applies
64D(1)
This section applies to a determination of a weekly limit of hours:
(a)
in force under section 50H in respect of a claimant who is an individual and a child; or
(b)
in force under section 54C, in respect of a claimant that is an approved child care service and a child.
Variation by Secretary to 24 hour limit
64D(2)
A determination to which this section applies may be varied by the Secretary so that a limit of 24 hours applies in a week if a limit of 50 hours, more than 50 hours or a 24 hour care limit does not apply in the week.
History
S 64D(2) amended by No 150 of 2005, s 3 and Sch 1 item 14, by substituting "24" for "20", applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
For transitional provision, see note under s 50H(3).
S 64D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 64DA
64DA
When variations must not be made
(Repealed by No 22 of 2017)
History
S 64DA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64DA formerly read:
SECTION 64DA When variations must not be made
64DA
The Secretary must not vary a determination of a weekly limit of hours under this Subdivision if:
(a)
the application for variation was not made until after the end of the income year following the one in which the relevant circumstance listed in section 54, 55 or 56 of the Family Assistance Act first applies; and
(b)
but for this section:
(i)
the effect of making the variation would be to increase theweekly limit of hours under the determination; and
(ii)
making the variation would have that effect for a period that ended before the start of the income year that precedes the one in which the application was made.
S 64DA inserted by No 53 of 2008, s 3 and Sch 5 item 7, applicable in relation to applications for variations if the applications are made after 25 June 2008.
SECTION 64E
64E
Notice of variation of determination under this Subdivision
(Repealed by No 22 of 2017)
History
S 64E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64E formerly read:
SECTION 64E Notice of variation of determination under this Subdivision
64E(1)
If a determination of a weekly limit of hours is varied by the Secretary under this Subdivision, the notice of variation must:
(a)
be given to the claimant, unless the claimant is an individual and the variation is made because a circumstance listed in subsection 54(12) or 55(8) of the Family Assistance Act applies in the week; and
(b)
(Repealed by No 118 of 2007)
(c)
state the effect of the variation, including in particular:
(i)
the day from which the variation has effect (see section 64EA); and
(ii)
if the variation is to have effect for a period of one or more weeks - the period of one or more weeks that the variation is to have the effect; and
(iii)
if the variation is to have the effect that the weekly limit of hours is to be more than 50 hours - the particular number of hours more than 50; and
(iv)
if the variation is to have the effect that the weekly limit of hours is a 24 hour care limit - the number of 24 hour care periods in each week during which the variation has the effect; and
(d)
state that the claimant may apply for review of the decision involved in the manner set out in Part 5.
History
S 64E(1) amended by No 53 of 2008, s 3 and Sch 5 items 8 and 9, by substituting para (c)(i) and (ii) and omitting ", or had," before "the effect" (wherever occurring) in para (c)(iii) and (iv), applicable in relation to applications for variations if the applications are made after 25 June 2008. Para (c)(i) and (ii) formerly read:
(i)
if the variation is to have, or had, effect for a period of one or more weeks - the period of one or more weeks that the variation is to have, or had, the effect; and
(ii)
if the variation is to have the effect indefinitely - a date from which the determination has the effect; and
S 64E(1) amended by No 118 of 2007, s 3 and Sch 1 item 27, by repealing para (b), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (b) formerly read:
(b)
if the claimant is an individual - be given to the approved child care service providing care to the child; and
64E(2)
The variation is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
64E(3)
If the claimant is an individual, the Secretary may make a notice of variation of a determination of a weekly limit of hours available to the approved child care service providing care to the child, including by making the notice available to the service using an electronic interface.
History
S 64E(3) inserted by No 118 of 2007, s 3 and Sch 1 item 28, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 64E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 64EA
64EA
When variations take effect
(Repealed by No 22 of 2017)
History
S 64EA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64EA formerly read:
SECTION 64EA When variations take effect
64EA(1)
If a determination of a weekly limit of hours is varied by the Secretary under this Subdivisin, the variation has effect from the start of the week in which the circumstance:
(a)
listed in section 54, 55 or 56 of the Family Assistance Act; and
(b)
in relation to which the variation is made; first applies.
64EA(2)
However, if:
(a)
the variation was made on application; and
(b)
the application was not made until after the end of the income year following the one in which the circumstance first applies; and
(c)
the effect of the variation is to increase the weekly limit of hours under the determination;
then the variation has effect only from the start of the income year that precedes the one in which the application was made.
S 64EA inserted by No 53 of 2008, s 3 and Sch 5 item 10, applicable in relation to applications for variations if the applications are made after 25 June 2008.
SECTION 64F
64F
Form of application
(Repealed by No 22 of 2017)
History
S 64F repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 64F formerly read:
SECTION 64F Form of application
64F
An application under this Subdivision must:
(a)
be made in the form and manner; and
(b)
contain any information; and
(c)
be accompanied by any documents;
required by the Secretary.
S 64F inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitionalprovisions see note under Pt 3 Div 4 heading.
Subdivision V - Variations of determinations for changes in circumstances
History
Subdiv V repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv V inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 65
65
Variation of determination of conditional eligibility to reflect changes in conditional eligibility
(Repealed by No 22 of 2017)
History
S 65 repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65 formerly read:
SECTION 65 Variation of determination of conditional eligibility to reflect changes in conditional eligibility
65(1)
If:
(a)
a determination of conditional eligibility under section 50F is made in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible; and
(b)
after the determination is made, an event occurs; and
(c)
the determination has the effect as set out in paragraph (a) at some time after the occurrence; and
(d)
when the Secretary becomes aware of the occurrence of the event, the Secretary considers that, if he or she were making the determination immediately after the occurrence, he or she would not have made the determination but instead would have made a determination of no entitlement in respect of the claimant;
the Secretary must vary the determination of conditional eligibility so that the claimant is not conditionally eligible with effect from the date of the occurrence.
65(2)
For the purpose of subsection (1), the occurrence includes the expiration of a period of time if the expiration is relevant to the operation of this Act.
65(3)
If:
(a)
the Secretary under subsection (1) varies a determination in relation to an individual and a child because of subsection 24(1) of the Family Assistance Act; and
(b)
the child comes to Australia within the period of 13 weeks beginning on the day after the end of:
(i)
the 6-week period referred to in subsection 24(1) of the Family Assistance Act; or
(ii)
if that 6-week period has been extended under subsection 24(7) or (9) of the Family Assistance Act - that period as so extended; and
(c)
the Secretary is satisfied that the individual is conditionally eligible for child care benefit by fee reduction in respect of the child on the day the child comes to Australia;
then the Secretary must vary the determination so that the individual is conditionally eligible for child care benefit by fee reduction in respect of the child with effect from the date of the child coming to Australia.
Note:
The individual does not have to make another claim for child care benefit.
History
S 65(3) inserted by No 17 of 2016, s 3 and Sch 1 item 30, effective 1 July 2016. For application and saving provision, see note under s 31(1C).
65(4)
If:
(a)
the Secretary under subsection (1) varies a determination in relation to an individual and a child because of subsection 24(4) of the Family Assistance Act (as affected by subparagraph (b)(ii) of the definition of
FTB child
in subsection 3(1) of that Act); and
(b)
the individual returns to Australia within the period of 13 weeks beginning on the day after the end of:
(i)
the 6-week period referred to in subsection 24(4) of the Family Assistance Act; or
(ii)
if that 6-week period has been extended under subsection 24(7), (9) or (10) of the Family Assistance Act - that period as so extended; and
(c)
the Secretary is satisfied that the individual is conditionally eligible for child care benefit by fee reduction in respect of the child on the day the individual returns to Australia;
then the Secretary must vary the determination so that the individual is conditionally eligible for child care benefit by fee reduction in respect of the child with effect from the date of the individual's return to Australia.
Note:
The individual does not have to make another claim for child care benefit.
History
S 65(4) inserted by No 17 of 2016, s 3 and Sch 1 item 30, effective 1 July 2016. For application and saving provision, see note under s 31(1C).
65(5)
Subsections (3) and (4) do not limit any later application of subsection (1) in relation to the determination.
Example:
The Secretary under subsection (4) varies the determination so that the individual is conditionally eligible for child care benefit by fee reduction in respect of the child.
The individual remains in Australia for 8 weeks, but then leaves Australia again for more than 6 weeks.
Because of subsection 24(4) of the Family Assistance Act, the Secretary may, under subsection (1) of this section, vary the determination again so that the individual is not conditionally eligible.
History
S 65(5) inserted by No 17 of 2016, s 3 and Sch 1 item 30, effective 1 July 2016. For application and saving provision, see note under s 31(1C).
S 65 substituted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading. For former wording of s 65 see history note under Pt 3 Div 4 heading.
SECTION 65A
65A
Variation of determination of CCB % to reflect changes in CCB %
(Repealed by No 22 of 2017)
History
S 65A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65A formerly read:
SECTION 65A Variation of determination of CCB % to reflect changes in CCB %
65A(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are made in respect of a claimant who is an individual; and
(b)
after the determinations are made, an event occurs; and
(c)
the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and
(d)
when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination of CCB % immediately after the occurrence, the CCB % would be different to the CCB % previously determined;
the Secretary must, subject to subsection (4), vary the determination of CCB % with effect from the date of the occurrence.
65A(2)
For the purpose of subsection (1), the occurrence of an event includes the expiration of a period of time if the expiration is relevant to the operation of this Act.
65A(3)
The reference in subsection (1) to the occurrence does not include the occurrence of any event that causes the claimant to provide a revised estimate of the claimant's adjusted taxable income to the Secretary unless:
(a)
the event also affects the claimant's CCB % for a reason other than the amount of the claimant's adjusted taxable income; or
(b)
the event is the claimant's becoming, or ceasing to be, a member of a couple.
Beneficial variations only to have limited effect
65A(4)
If:
(a)
the Secretary does not become aware of the occurrence until after the end of the income year (the
second income year
) following the one in which the event occurred; and
(b)
the claimant did not notify the Secretary of the event before the end of the second income year; and
(c)
apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant's CCB % under the determination;
the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.
Section 58, 59D, 60C, 60D, 60E or 62A variations prevail
65A(5)
If:
(a)
when a variation under this section takes place, a variation is in force under section 58, 59D, 60C, 60D, 60E or 62A; and
(b)
the variation under section 58, 59D, 60C, 60D, 60E or 62A has effect for any period when the variation under this section would have effect;
the variation under section 58, 59D, 60C, 60D, 60E or 62A prevails over the variation under this section.
S 65A inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 65B
65B
VARIATION OF DETERMINATION OF CCB % TO REFLECT REVISED ADJUSTED TAXABLE INCOME ESTIMATES
(Repealed by No 22 of 2017)
History
S 65B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65B formerly read:
SECTION 65B VARIATION OF DETERMINATION OF CCB % TO REFLECT REVISED ADJUSTED TAXABLE INCOME ESTIMATES
65B(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are made in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and
(b)
the CCB %:
(i)
is worked out on the basis of an estimate of the claimant's adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant; or
(ii)
is varied under section 60E; and
(c)
the claimant provides the Secretary with a revised estimate of the claimant's adjusted taxable income for the current income year or the next income year that is not attributable to an event mentioned in paragraph 65A(3)(a) or (b); and
(d)
the Secretary considers the revised estimate to be reasonable; and
(e)
if the claimant's CCB % were calculated using the revised estimate - a new CCB % would be required;
the Secretary must vary the determination of CCB % so that it is determined on the basis of that revised estimate.
Note:
Section 55AC affects the meaning of subparagraph (1)(b)(i) for members of couples.
History
S 65B(1) amended by No 36 of 2006, s 3 and Sch 2 items 16 and 17, by substituting paras (b) and (c) and inserting the note at the end, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
Paras (b) and (c) formerly read:
(b)
the CCB %:
(i)
is worked out on the basis of an estimate of the claimant's adjusted taxable income in a particular income year; or
(ii)
is varied under section 60E; and
(c)
the claimant, at any time before or during that income year, provides the Secretary with a revised estimate of that amount that is attributable to the occurrence of an event other than an event to which paragraph 65A(3)(a) or (b) applies; and
65B(2)
A variation of a determination under subsection (1) has effect:
(a)
if it results in an increase in the claimant's CCB %:
(i)
unless subparagraph (ii) applies - from the Monday after the day the variation is made; or
(ii)
if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i) - from that first day; and
(b)
if it results in a decrease in the claimant's CCB %:
(i)
unless subparagraph (ii) applies - from the Monday after the day the variation is made; or
(ii)
if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i) - from that first day.
Section 58, 59D, 60C, 60D, 60E and 62A variations prevail
65B(3)
If:
(a)
when a variation under this section takes place, a variation is in force under section 58, 59D, 60C, 60D, 60E or 62A; and
(b)
the variation under section 58, 59D, 60C, 60D, 60E or 62A; has effect for any period when the variation under this section would have effect;
the variation under section 58, 59D, 60C, 60D, 60E or 62A; prevails over the variation under this section.
S 65B inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 65BA
65BA
VARIATION OF DETERMINATION OF CCB % TO REFLECT INDEXATION OF ESTIMATE OF ADJUSTED TAXABLE INCOME
(Repealed by No 22 of 2017)
History
S 65BA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65BA formerly read:
SECTION 65BA VARIATION OF DETERMINATION OF CCB % TO REFLECT INDEXATION OF ESTIMATE OF ADJUSTED TAXABLE INCOME
65BA(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and
(b)
the Secretary gives the claimant a notice under subsection 55AB(2); and
(c)
the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable; and
(d)
if the claimant's CCB % were calculated using the indexed actual income stated in the notice - a new CCB % would be required;
the Secretary must vary the determination of CCB % so that it is determined on the basis of the indexed actual income stated in the notice.
Note:
Section 55AC affects the meaning of this provision for members of couples.
65BA(2)
The variation has effect:
(a)
from the start day specified in the notice; or
(b)
if the variation is made after that start day - from the Monday after the variation is made.
S 65BA inserted by No 36 of 2006, s 3 and Sch 2 item 18, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 65BB
65BB
VARIATION OF DETERMINATION OF CCB % TO REFLECT INDEXATION OF ADJUSTED TAXABLE INCOME
(Repealed by No 22 of 2017)
History
S 65BB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65BB formerly read:
SECTION 65BB VARIATION OF DETERMINATION OF CCB % TO REFLECT INDEXATION OF ADJUSTED TAXABLE INCOME
65BB(1)
If:
(a)
determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and
(b)
the Secretary gives the claimant a notice under subsection 55AB(2); and
(c)
the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable; and
(d)
if the claimant's CCB % were calculated using the indexed actual income stated in the notice - a new CCB % would be required;
the Secretary must vary the determination of CCB % so that it is determined on the basis of the indexed actual income stated in the notice.
Note:
Section 55AC affects the meaning of this provision for members of couples.
65BB(2)
The variation has effect:
(a)
from the start day specified in the notice; or
(b)
if the variation is made after that start day - from the Monday after the variation is made.
S 65BB inserted by No 36 of 2006, s 3 and Sch 2 item 18, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
SECTION 65C
65C
Variation of determination of schooling % to reflect changes in schooling %
(Repealed by No 22 of 2017)
History
S 65C repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65C formerly read:
SECTION 65C Variation of determination of schooling % to reflect changes in schooling %
65C(1)
If:
(a)
determinations of conditional eligibility under section 50F and of schooling % under section 50K are made in respect of a claimant who is an individual; and
(b)
after the determinations are made, an event occurs; and
(c)
the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and
(d)
when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination of schooling % immediately after the occurrence, the schooling % would be different to the schooling % previously determined;
the Secretary must, subject to subsection (2), vary the determination of schooling % with effect from the date of the occurrence.
Beneficial variations only to have limited effect
65C(2)
If:
(a)
the Secretary does not become aware of the event until after the end of the income year (the
second income year
) following the one in which the event occurred; and
(b)
the claimant did not notify the Secretary of the event before the end of the second income year; and
(c)
apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant's schooling % under the determination;
the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.
Section 59C and 62B variations prevail
65C(3)
If:
(a)
when a variation under this section takes place, a variation is in force under section 59C or 62B; and
(b)
the variation under section 59C or 62B has effect for any period when the variation under this section would have effect;
the variation under section 59C or 62B prevails over the variation under this section.
S 65C inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 65D
65D
Variation of determination of a weekly limit of hours to reflect changes in weekly limit of hours
(Repealed by No 22 of 2017)
History
S 65D repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65D formerly read:
SECTION 65D Variation of determination of a weekly limit of hours to reflect changes in weekly limit of hours
65D(1)
If:
(a)
determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are made in respect of a claimant who is an individual; and
(b)
after the determination is made, an event occurs; and
(c)
the determination of conditional eligibility has, at some time after the event, the effect that the claimant is conditionally eligible; and
(d)
when the Secretary becomes aware of the change, the Secretary considers that, if he or she were making the determination of a weekly limit of hours immediately after the event, the weekly limit of hours would be different to the weekly limit of hours previously determined;
the Secretary must, subject to subsection (3), vary the determination of a weekly limit of hours so as to determine the weekly limit of hours with the effect from the day of the occurrence.
65D(2)
For the purpose of subsection (1), the occurrence includes the expiration of a period of time if the expiration is relevant to the operation of this Act.
Beneficial variations only to have limited effect
65D(3)
If:
(a)
the Secretary does not become aware of the occurrence in the claimant's circumstances until after the end of the income year (the
second income year
) following the one in which the event occurred; and
(b)
the claimant did not notify the Secretary of the event before the end of the second income year; and
(c)
apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant's weekly limit of hours under the determination;
the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.
Variations under subsection 59(2), section 59F and section 62C
65D(4)
If:
(a)
when a variation under this section takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and
(b)
the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;
the variation under subsection 59(2) or under section 59F or 62C prevails over the variation under this section.
History
S 65D(4) amended by No 150 of 2005, s 3 and Sch 2 items 29 to 31, by inserting "under subsection 59(2) or" after "in force" in para (a), inserting "under subsection 59(2) or" after "the variation" (first occurring) in para (b) and inserting "under subsection 59(2) or" after "the variation" (second last occurring), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 65D inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 65DA
65DA
Variation of determination of eligibility for special grandparent rate
(Repealed by No 22 of 2017)
History
S 65DA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65DA formerly read:
SECTION 65DA Variation of determination of eligibility for special grandparent rate
Variation with effect that individual is not eligible for special grandparent rate
65DA(1)
If:
(a)
a determination of conditional eligibility under section 50F is made in respect of a claimant who is an individual and in respect of a child; and
(b)
a determination is in force under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and
(c)
after the determinations are made, an event occurs; and
(d)
the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and
(e)
when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination under subsection 50T(1) immediately after the occurrence, the claimant would not be eligible for the special grandparent rate for the child;
the Secretary must vary the determination under subsection 50T(1) with effect that the claimant is not eligible for that rate for the child.
65DA(2)
The variation under subsection (1) has effect from the date of the occurrence.
Variation with effect that individual is again eligible for special grandparent rate
65DA(3)
If:
(a)
a determination of conditional eligibility under section 50F is made in respect of a claimant who is an individual and in respect of a child; and
(b)
a determination is made under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and
(c)
the determination referred to in paragraph (b) is varied with the effect that the claimant is not eligible for the special grandparent rate for the child; and
(d)
an event occurs while the variation referred to in paragraph (c) is in force; and
(e)
the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and
(f)
when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination under subsection 50T(1) immediately after the occurrence, the claimant would be eligible for the special grandparent rate for the child;
the Secretary must vary the determination under subsection 50T(1) with effect that the claimant is eligible for that rate for the child.
65DA(4)
The variation under subsection (3) has effect from:
(a)
if no day is specified in the notice of determination - the day the variation is made; or
(b)
on the day specified in the notice of variation.
65DA(5)
The Secretary may specify a day, not more than 4 weeks before:
(a)
if the Secretary becomes aware of the occurrence because the claimant notifies the Secretary of the occurrence - the day on which the claimant notifies the Secretary of the occurrence; or
(b)
in any other case - the day on which the Secretary makes the variation;
as the day from which the variation is to have effect.
65DA(6)
The Secretary may only specify a day under subsection (5) if the Secretary is satisfied that, the individual was eligible for the special grandparent rate for the child on and since that specified earlier day.
Section 59G and 62CA variations prevail
65DA(7)
If:
(a)
when a variation under this section takes place, a variation is in force under section 59G or 62CA; and
(b)
the variation under section 59G or 62CA has effect for any period when the variation under this section would have effect;
the variation under section 59G or 62CA prevails over the variation under this section.
S 65DA inserted by No 132 of 2004, s 3 and Sch 4 item 24, applicable to sessions of care provided in a week that commences after 1 January 2005.
SECTION 65E
65E
Notice of variation under this Subdivision
(Repealed by No 22 of 2017)
History
S 65E repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65E formerly read:
SECTION 65E Notice of variation under this Subdivision
65E(1)
The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.
History
S 65E(1) amended by No 118 of 2007, s 3 and Sch 1 item 29, by omitting "and to the approved child care service providing care to the child of the claimant" after "Subdivision to the claimant", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
65E(2)
The variation is not ineffective by reason only that any or all the requirements of subsection (1) are not complied with.
65E(3)
The Secretary may make notice of any variation of a determination under this Subdivision available to the approved child care service providing care to the child of the claimant, including by making the notice available to the service using an electronic interface.
History
S 65E(3) inserted by No 118 of 2007, s 3 and Sch 1 item 30, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 65E inserted by No 45 of 2000, s 3 Sch 2 item 60, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Division 4AA - Child care rebate
History
Div 4AA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Div 4AA (heading) substituted by No 50 of 2009, s 3 and Sch 1 item 11, effective 24 June 2009. No 50 of 2009, s 3 and Sch 1 items 42 to 44, contains the following transitional provisions:
Operation of laws
(1)
If, before 24 June 2009 (the
commencement time
), a thing was done in relation to child care tax rebate, then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the thing is taken to have been done in relation to child care rebate.
(2)
If, before the commencement time, a thing was omitted to be done in relation to child care tax rebate, then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the omission is taken to have happened in relation to child care rebate.
(3)
Subitems (1) and (2) do not have the effect of changing the time at which the thing was actually done or omitted to have been done.
(4)
The Minister may, by writing, determine either or both of the following:
(a)
that subitem (1) does not apply in relation to a specified thing done;
(b)
that subitem (2) does not apply in relation to a specified thing omitted to have been done.
A determination under this subitem has effect accordingly.
(5)
A determination under subitem (4) is not a legislative instrument.
(6)
For the purposes of this item:
doing
a thing includes making an instrument.
omitting
to do a thing includes failing to make an instrument.
References in instruments
(1)
If:
(a)
an instrument was in force immediately before the commencement time; and
(b)
the instrument refers to child care tax rebate (including by way of abbreviation);
the reference has effect after the commencement time as if it were a reference to child care rebate.
(2)
The Minister may, by writing, determine that subitem (1) does not apply in relation to a specified reference. A determination under this subitem has effect accordingly.
Regulations
44
The Governor-General may make regulations prescribing matters of a transitional nature (including any saving or application provisions) relating to the amendments or repeals made by this Schedule.
The heading formerly read:
Division 4AA - Child care tax
Div 4AA inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
Subdivision AAA - Election to have child care rebate paid in various ways
History
Subdiv AAA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv AAA inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAAA
65EAAAA
Individual may elect to have child care rebate paid in various ways
(Repealed by No 22 of 2017)
History
S 65EAAAA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAAA formerly read:
SECTION 65EAAAA Individual may elect to have child care rebate paid in various ways
65EAAAA(1)
An individual may give the Secretary notice in accordance with subsection (2) electing to have child care rebate in respect of the individual and a child for care provided for the child in an income year paid in one of the following ways:
(a)
weekly into a bank account maintained by the individual alone or jointly or in common with someone else;
(b)
weekly to one or more approved child care services;
(c)
quarterly into a bank account maintained by the individual alone or jointly or in common with someone else.
Note:
Child care rebate is calculated on the basis of reports given by approved child care services in relation to each week of care under section 219N. A report for care provided in one week may be given up to 2 weeks later. A service may therefore give a report for 2 weeks together. For this reason, payments of child care rebate to an individual for 2 successive weeks may be made together. The effective result is then a fortnightly payment.
65EAAAA(2)
A notice under subsection (1):
(a)
must be given in the form, and in the manner or way, approved by the Secretary; and
(b)
must be given before the beginning of the income year to which the notice relates unless:
(i)
the individual makes a claim after the beginning of the income year for payment of child care benefit by fee reduction for care provided for the child by one or more approved child care services; or
(ii)
the Secretary makes a determination under subsection (4).
65EAAAA(3)
If an individual gives notice under subsection (1) when making a claim after the beginning of an income year for payment of child care benefit by fee reduction, the election is taken to relate to the income year in which the claim is made.
65EAAAA(4)
The Secretary may determine, in writing, that an individual may give notice under subsection (1) after the income year to which the notice relates has begun, if the Secretary is satisfied that there are exceptional circumstances justifying the determination.
Note:
A determination of entitlement to child care rebate will be made for the income year under Subdivision A of this Division. So if a person is entitled to child care rebate, does not elect to have it paid weekly or quarterly and has not been receiving child care rebate weekly or quarterly as a result of a previous election (see section 65EAAAC), child care rebate will be paid after the end of the income year.
S 65EAAAA inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAAB
65EAAAB
Period in which election has effect
(Repealed by No 22 of 2017)
History
S 65EAAAB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAAB formerly read:
SECTION 65EAAAB Period in which election has effect
65EAAAB(1)
If:
(a)
a notice is given under paragraph 65EAAAA(1)(a) or (b) to have child care rebate paid weekly; and
(b)
the notice is given before the income year to which it relates has begun;
the election takes effect on the first Monday in the income year and continues in effect for each week all or part of which falls in the income year.
65EAAAB(2)
If:
(a)
a notice is given under paragraph 65EAAAA(1)(c) to have child care rebate paid quarterly; and
(b)
the notice is given before the income year to which it relates has begun;
the election takes effect on the first day of the first quarter in the income year and continues in effect for each quarter which falls in the income year.
65EAAAB(3)
If notice is given under subsection 65EAAAA(1) after the income year to which it relates has begun:
(a)
the Secretary must determine in writing the day on which the election is to take effect; and
(b)
the election continues in effect:
(i)
if the notice is given under paragraph 65EAAAA(1)(a) or (b) to have child care rebate paid weekly - for each week all or part of which falls in the income year; and
(ii)
if the notice is given under paragraph 65EAAAA(1)(c) to have child care rebate paid quarterly - for each quarter which falls in the income year.
S 65EAAAB inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAAC
65EAAAC
Where no election made for an income year
(Repealed by No 22 of 2017)
History
S 65EAAAC repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAAC formerly read:
SECTION 65EAAAC Where no election made for an income year
65EAAAC
If an individual does not give notice under subsection 65EAAAA(1) for an income year, child care rebate in respect of the individual and the child for care provided during the income year is to be paid:
(a)
if child care rebate was paid in respect of the individual and the child in relation to the immediately preceding income year - in the same way as it was paid in relation to that year; and
(b)
otherwise - for the income year.
S 65EAAAC inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Subdivision AAB - Weekly payments of child care rebate
History
Subdiv AAB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv AAB inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAA
65EAAA
Weekly payments of child care rebate
(Repealed by No 22 of 2017)
History
S 65EAAA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAA formerly read:
SECTION 65EAAA Weekly payments of child care rebate
65EAAA
If:
(a)
the Secretary is satisfied that an individual is eligible under subsection 57EAA(1) of the Family Assistance Act for child care rebate for a week in respect of a child; and
(b)
the Secretary has calculated an amount of fee reduction under subsection 50Z(1) in respect of the individual and the child for a session or sessions of care provided by an approved child care service in the week;
the Secretary must calculate the amount of the rebate which the Secretary considers is applicable in respect of the individual and the child for care provided for the child by the approved child care service in the week.
Note 1:
The individual will not be eligible to have child care rebate paid weekly unless the individual has made an election under paragraph 65EAAAA(1)(a) or (b) to have rebate paid weekly.
Note 2:
The calculation is made in accordance with section 84AAA of the Family Assistance Act.
Note 3:
The amount of fee reduction calculated under subsection 50Z(1) may be a nil amount (see section 4A).
S 65EAAA inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAB
65EAAB
Where individual elects to have child care rebate paid weekly to approved child care service
(Repealed by No 22 of 2017)
History
S 65EAAB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAB formerly read:
SECTION 65EAAB Where individual elects to have child care rebate paid weekly to approved child care service
65EAAB(1)
This section applies if:
(a)
the Secretary calculates an amount of child care rebate under section 65EAAA which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and
(b)
the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service.
65EAAB(2)
The Secretary must notify the approved child care service of the amount calculated.
65EAAB(3)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
65EAAB(4)
Without limiting subsection (3), the Secretary may approve notification of the amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.
Note:
The amount is then paid to the approved child care service under subsection 219QC(1).
S 65EAAB inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAC
65EAAC
Where individual elects to have child care rebate paid weekly into own bank account
(Repealed by No 22 of 2017)
History
S 65EAAC repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAC formerly read:
SECTION 65EAAC Where individual elects to have child care rebate paid weekly into own bank account
65EAAC(1)
This section applies if:
(a)
the Secretary calculates an amount of child care rebate under section 65EAAA which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and
(b)
the individual has made an election under paragraph 65EAAAA(1)(a) that is in effect for the week to have child care rebate paid weekly into a bank account nominated and maintained by the individual.
65EAAC(2)
The Secretary must pay the amount of child care rebate calculated under section 65EAAA to the individual, at such time as the Secretary considers appropriate, by paying it to the credit of the bank account.
65EAAC(3)
The Secretary may direct that the whole or a part of an amount that is to be paid under this section is to be paid in a different way from that provided for by subsection (2). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.
65EAAC(4)
The Secretary must give notice to the individual:
(a)
identifying the week or weeks to which the notice relates (the
rebate period
); and
(b)
stating:
(i)
the child's name; and
(ii)
the amount of child care rebate calculated in respect of the rebate period(the
rebate amount
); and
(iii)
the total amount of the individual's approved child care fees for care provided for the child by the approved child care service during the rebate period, worked out under step 1 of the method statement in section 84AAA of the Family Assistance Act when calculating the rebate amount; and
(iv)
the total amount (if any) of fee reductions for care provided for the child by the approved child care service during the rebate period, worked out under step 2 of the method statement in section 84AAA of the Family Assistance Act when calculating the rebate amount.
65EAAC(5)
The calculation and payment of an amount of child care rebate applicable under this section is not ineffective by reason only that any, or all, of the requirements of subsection (4) are not complied with.
65EAAC(6)
This section is subject to:
(a)
section 65EAAF; and
(b)
section 65EAB; and
(c)
Part 4; and
(d)
Division 3 of Part 8B.
S 65EAAC inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAD
65EAAD
Revising a calculation of weekly child care rebate
(Repealed by No 22 of 2017)
History
S 65EAAD repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAD formerly read:
SECTION 65EAAD Revising a calculation of weekly child care rebate
65EAAD
The Secretary may recalculate an amount of child care rebate which the Secretary considers is applicable:
(a)
under section 65EAAA; or
(b)
under a previous application of this section;
in respect of an individual and a child for care provided for the child by an approved child care service in a week, so long as a determination of entitlement has not been made under Subdivision A in respect of the individual and child for the income year in which all or part of the week falls.
S 65EAAD inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAE
65EAAE
If weekly payment is to an approved child care service, notice of revised calculation must be given to the service
(Repealed by No 22 of 2017)
History
S 65EAAE repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAE formerly read:
SECTION 65EAAE If weekly payment is to an approved child care service, notice of revised calculation must be given to the service
65EAAE(1)
This section applies if:
(a)
the Secretary, under section 65EAAD, recalculates an amount of child care rebate which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and
(b)
the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service.
65EAAE(2)
The Secretary must notify the approved child care service of the recalculated amount.
History
S 65EAAE(2) amended by No 25 of 2011, s 3 and Sch 2 item 2, by substituting "The" for "Subject to subsection (3), the", applicable in relation to recalculations done under section 65EAAD of the Family Assistance Administration Act on or after 26 July 2011 in respect of weeks beginning before, on or after 26 July 2011.
65EAAE(3)
(Repealed by No 25 of 2011)
History
S 65EAAE(3) repealed by No 25 of 2011, s 3 and Sch 2 item 3, applicable in relation to recalculations done under section 65EAAD of the Family Assistance Administration Act on or after 26 July 2011 in respect of weeks beginning before, on or after 26 July 2011.
S 65EAAE(3) formerly read:
65EAAE(3)
The Secretary need not notify the approved child care service of the recalculated amount if the amount is reduced, and the recalculation is for a reason other than the substitution or withdrawal by the service of a report given under section 219N.
65EAAE(4)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
65EAAE(5)
Without limiting subsection (4), the Secretary may approve notification of the amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.
Note:
The effect of a recalculation on payments to an approved child care service is dealt with in subsection 219QC(2) and section 219QD.
S 65EAAE inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 65EAAF
65EAAF
Effect of revised calculation - payment to the individual
(Repealed by No 22 of 2017)
History
S 65EAAF repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAAF formerly read:
SECTION 65EAAF Effect of revised calculation - payment to the individual
65EAAF(1)
This section applies if:
(a)
the Secretary, under section 65EAAD, recalculates an amount of child care rebate which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and
(b)
the individual has made an election under paragraph 65EAAAA(1)(a) that is in effect for the week to have child care rebate paid weekly into a bank account nominated and maintained by the individual.
65EAAF(2)
If the recalculation increases the amount of child care rebate applicable in respect of the individual and the child for care provided for the child by the service in the week, then subsections 65EAAC(2), (3) and (6) apply to the increase as if the increase were the amount applicable under section 65EAAA.
65EAAF(3)
If the recalculation decreases the amount of child care rebate applicable in respect of the individual and the child for care provided for the child by the service in the week, the Secretary may set off all or a part of the decrease against an amount of child care rebate applicable under this Subdivision or Subdivision AA for that or any other approved child care service in respect of the individual and the child for a later period in the same income year.
65EAAF(4)
The Secretary must give notice to the individual:
(a)
identifying the week or weeks to which the notice relates (the
rebate period
); and
(b)
stating:
(i)
the child's name; and
(ii)
the amount of child care rebate as recalculated under this section in respect of the rebate period (the
rebate amount
); and
(iii)
the total amount of the individual's approved child care fees for care provided for the child by the approved child care service during the rebate period, worked out under step 1 of the method statement in section 84AAA of the Family Assistance Act when recalculating the rebate amount; and
(iv)
the total amount (if any) of fee reductions for care provided for the child by the approved child care service during the rebate period, worked out under step 2 of the method statement in section 84AAA of the Family Assistance Act when recalculating the rebate amount.
65EAAF(5)
The recalculation and payment of an amount of child care rebate applicable under this section is not ineffective by reason only that any, or all, of the requirements of subsection (4) are not complied with.
S 65EAAF inserted by No 25 of 2011, s 3 and Sch 1 item 13, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Subdivision AA - Quarterly payments of child care rebate
History
Subdiv AA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv AA (heading) substituted by No 50 of 2009, s 3 and Sch 1 item 12, effective 24 June 2009. For transitional provisions, see note under Div 4AA heading. Subdiv AA (heading) formerly read:
Subdivision AA - Quarterly payments of child care tax rebate
Subdiv AA inserted by No 53 of 2008, s 3 and Sch 2 item 13, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
SECTION 65EAA
65EAA
Quarterly payments of child care rebate
(Repealed by No 22 of 2017)
History
S 65EAA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAA formerly read:
SECTION 65EAA Quarterly payments of child care rebate
When Secretary calculates and pays quarterly payments
65EAA(1)
If:
(a)
the Secretary is satisfied that an individual is eligible under subsection 57EA(1) of the Family Assistance Act for child care rebate for a quarter in respect of a child; and
(b)
the quarter has passed;
the Secretary must calculate the amount of the rebate which the Secretary considers is applicable in respect of the individual and the child for the quarter.
Note:
The calculation is made in accordance with section 84AA of the Family Assistance Act.
65EAA(1A)
However, the Secretary may decide not to calculate an amount of rebate for the quarter if the quarter is the last quarter of the income year.
Note:
The Secretary may prefer to pay rebate for the last quarter as part of the individual's entitlement to rebate for the entire income year (see Subdivision A).
History
S 65EAA(1A) inserted by No 50 of 2009, s 3 and Sch 5 item 2, applicable in relation to the last quarter of the 2008-09 income year and of later income years.
65EAA(2)
The Secretary must pay the amount of child care rebate calculated under subsection (1) to the individual at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the individual.
Secretary may make direction as to the manner of making payments
65EAA(3)
The Secretary may direct that the whole or a part of an amount that is to be paid under this section is to be paid in a different way from that provided for by subsection (2). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.
65EAA(4)
This section is subject to:
(a)
section 65EAAF; and
(b)
section 65EAB; and
(c)
Part 4; and
(d)
Division 3 of Part 8B.
History
S 65EAA(4) substituted by No 25 of 2011, s 3 and Sch 1 item 14, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). S 65EAA(4) formerly read:
65EAA(4)
This section is subject to Part 4 and to Division 3 of Part 8B.
S 65EAA amended by No 50 of 2009, s 3 and Sch 1 item 23, by substituting "child care rebate" for "child care tax rebate" (wherever occurring), effective 24 June 2009.
S 65EAA inserted by No 53 of 2008, s 3 and Sch 2 item 13, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. Act No 53 of 2008, s 3 and Sch 2 (as amended by No 50 of 2009, Sch 1 item 39) contains the following transitional provisions:
Division 3 - Transitional: Service's application day happens after the quarter for which child care tax rebate is applicable
33 Definitions
In this Division:
Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
Assistance Act
means theA New Tax System (Family Assistance) Act 1999.
34 When this Division applies
This Division applies if:
(a)
one or more sessions of care are provided by an approved child care service to a child during a week that falls wholly or partly in a quarter; and
(b)
the service's application day (within the meaning of item 91 of Schedule 1 to theFamily Assistance Legislation Amendment (Child Care ManagementSystem and Other Measures) Act 2007) has not happened before the last week that falls wholly or partly in the quarter.
35 Changed effect of the Assistance Act
(1)
The Assistance Act has effect in relation to that care as if paragraph 57EA(1)(d) of that Act were as follows:
(d)
the service has calculated an amount of fee reductions under section 219A of the Family Assistance Administration Act applicable to the individual and the child for at least one of those sessions of care provided in the week; and
(2)
The Assistance Act has effect in relation to that care as if note 3 at the end of subsection 57EA(1) of that Act were omitted.
(3)
The Assistance Act has effect in relation to that care as if the total amount to be worked out under step 2 of the method statement in section 84AA of that Act also included so much of the fee reductions:
(a)
reported under subsection 219N(1) or 219P(1) of the Family Assistance Administration Act; and
(b)
made in respect of the individual and the child;
as are attributable to each base week in the quarter.
Note:
Those fee reductions may be nil (see section 4A of the Administration Act (as replaced by subitem 36(1))).
(4)
The Assistance Act has effect in relation to that care as if subsection 84AB(3) of that Act were as follows:
If fee reduction applies, count unreduced amount of fees
(3)
If fees for child care by an approved child care service have been reduced under Division 1 of Part 8A of the Family Assistance Administration Act, then for the purposes of this section, a reference to the fees for which the individual, or the individual's partner, is liable is taken to be a reference to the fees for which the individual, or the individual's partner, would have been liable for the care if they had not been so reduced.
36 Changed effect of the Administration Act
(1)
The Administration Act has effect in relation to that care as if section 4A of that Act were as follows:
4A Rate and amount of CCB by fee reduction may be zero
For the purposes of this Act and the Family Assistance Act:
(a)
a rate calculated under column 2 of the table in section 219A may be a zero rate; and
(b)
an amount calculated under column 2 of the table in section 219A may be a nil amount.
(2)
The Administration Act has effect in relation to that care as if the following paragraph were inserted after paragraph 65EAA(1)(b of that Act:
; and (c) the Secretary is given a report under subsection 219N(1) or 219P(1) in respect of the individual and the child for at least one session of care provided to the child during a week for which the individual is so eligible for child care rebate in respect of the child;
Division 4 - Transitional: Service's application day happens during the quarter for which child care tax rebate is applicable
37 Interpretation
(1)
In this Division:
Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
(2)
For the purposes of this Division, section 219N of the Administration Act applies with the effect it has under item 96 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007.
38 When this Division applies
This Division applies if:
(a)
one or more sessions of care are provided by an approved child care service to a child during a week that falls wholly or partly in a quarter; and
(b)
the service's application day (within the meaning of item 91 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007) happens during the quarter (other than during the last week that falls wholly or partly in the quarter).
39 Changed effect of the Assistance Act
(1)
The Assistance Act has effect in relation to that care as if subsection 3(1) of that Act included the following definition:
application day,
for an approved child care service, has the meaning given by item 91 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007.
(2)
The Assistance Act has effect in relation to that care as if paragraph 57EA(1)(d) of that Act were as follows:
(d)
either:
(i)
if the week falls before or includes the service's application day - the service has calculated an amount of fee reductions under section 219A of the Family Assistance Administration Act applicable to the individual and the child for at least one of those sessions of care provided in the week; or
(ii)
if the week falls wholly after the service's application day - the Secretary has calculated an amount of fee reduction under subsection 50Z(1) of the Family Assistance Administration Act in respect of the individual and the child for at least one of those sessions of care provided in the week; and
(3)
The Assistance Act has effect in relation to that care as if note 3 at the end of subsection 57EA(1) of that Act were as follows:
Note 3:
For the purposes of subparagraph (d)(ii), it does not matter if the amount is later recalculated under subsection 50ZA(1) of the Family Assistance Administration Act.
(4)
The Assistance Act has effect in relation to any sessions of that care that were provided in a base week in the quarter, where the week falls before or includes the service's application day, as if the total amount to be worked out under step 2 of the method statement in section84AA of that Act for the quarter also included so much of the fee reductions:
(a)
reported under subsection 219N(1) or 219P(1) of the Family Assistance Administration Act; and
(b)
made in respect of the individual and the child;
as are attributable to that base week.
Note 1:
Those fee reductions may be nil (see section 4A of the Administration Act (as replaced by subitem 40(1))).
Note 2:
The normal application of step 2 of that method statement will include in the total amount the fee reductions calculated in respect of care provided in base weeks falling wholly after the service's application day. Those fee reductions may also be nil (see section 4A of the Administration Act as it applies to the service in the weeks after its application day).
(5)
The Assistance Act has effect in relation to any sessions of that care that were provided in a week falling before, or including, the service's application day as if subsection 84AB(3) of that Act were as follows:
If fee reduction applies, count unreduced amount of fees
(3)
If:
(a)
an approved child care service provides care to the child; and
(b)
fees for the care have been reduced under Division 1 of Part 8A of the Family Assistance Administration Act;
then for the purposes of this section, a reference to the fees for which the individual, or the individual's partner, is liable is taken to be a reference to the fees for which the individual, or the individual's partner, would have been liable for that care if they had not been so reduced.
40 Changed effect of the Administration Act
(1)
The Administration Act has effect in relation to any sessions of that care that were provided in a week falling before, or including, the service's application day as if section 4A of that Act were as follows:
4A Rate and amount of CCB by fee reduction may be zero
For the purposes of this Act and the Family Assistance Act:
(a)
a rate calculated under column 2 of the table in section 219A may be a zero rate; and
(b)
an amount calculated under column 2 of the table in section 219A may be a nil amount.
(2)
The Administration Act has effect in relation to that care as if the following paragraph were inserted after paragraph 65EAA(1)(b) of that Act:
; and (c) if the individual is so eligible in relation to at least one session of care provided by an approved child care service in a week falling before, or including, the service's application day - the Secretary is given a report under subsection 219N(1) or 219P(1) in respect of the individual and the child for the care;
.
SECTION 65EAB
65EAB
Revising a calculation of quarterly child care rebate
(Repealed by No 22 of 2017)
History
S 65EAB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAB formerly read:
SECTION 65EAB Revising a calculation of quarterly child care rebate
65EAB(1)
The Secretary may recalculate an amount of child care rebate which the Secretary considers applicable:
(a)
under subsection 65EAA(1); or
(b)
under a previous application of this subsection;
in respect of an individual and a child for a quarter, so long as a determination of entitlement has not been made under Subdivision A in respect of the individual and child for the income year that includes the quarter.
65EAB(2)
If:
(a)
an amount of child care rebate applicable under this Subdivision in respect of an individual and a child for a quarter has been paid to the individual; and
(b)
a recalculation under subsection (1) increases the amount of child care rebate applicable in respect of the individual and the child for the quarter;
then subsections 65EAA(2) to (4) apply to the increase as if the increase were the amount applicable under subsection 65EAA(1).
65EAB(3)
If:
(a)
an amount of child care rebate applicable under this Subdivision in respect of an individual and a child for a quarter has been paid to the individual; and
(b)
a recalculation under subsection (1) decreases the amount of child care rebate applicable in respect of the individual and the child for the quarter;
the Secretary may set off all or a part of the decrease against an amount of child care rebate applicable under this Subdivision or Subdivision AAB in respect of the individual and the child for a later period in the same income year.
S 65EAB(3) amended by No 25 of 2011, s 3 and Sch 1 item 15, by substituting "under this Subdivision or Subdivision AAB in respect of the individual and the child for a later period" for "under this Subdivision in respect of the individual and the child for a later quarter", applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 65EAB amended by No 50 of 2009, s 3 and Sch 1 item 24, by substituting "child care rebate" for "child care tax rebate" (wherever occurring), effective 24 June 2009.
S 65EAB inserted by No 53 of 2008, s 3 and Sch 2 item 13, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
SECTION 65EAC
65EAC
Notices relating to quarterly payments of child care rebate
(Repealed by No 22 of 2017)
History
S 65EAC repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EAC formerly read:
SECTION 65EAC Notices relating to quarterly payments of child care rebate
65EAC(1)
The Secretary must give notice of an amount of child care rebate (the
rebate amount
) applicable under this Subdivision to the individual, stating:
(a)
the child's name and the quarter in respect of which the rebate amount is applicable; and
(b)
the rebate amount; and
(c)
the total amount of the individual's approved child care fees for the child worked out under step 1 of the method statement in section 84AA of the Family Assistance Act when calculating the rebate amount; and
(d)
the total amount (if any) of fee reductions worked out under step 2 of the method statement in section 84AA of the Family Assistance Act when calculating the rebate amount; and
(e)
if the rebate amount is the result of a recalculation covered by subsection 65EAB(2) - the amount of the increase in rebate as a result of the recalculation; and
(f)
if the rebate amount is the result of a recalculation covered by subsection 65EAB(3) - the amount of the decrease in rebate as a result of the recalculation, and whether an amount will be set off as described in that subsection.
65EAC(2)
The calculation and payment of an amount of child care rebate applicable under this Subdivision is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
S 65EAC amended by No 50 of 2009, s 3 and Sch 1 item 25, by substituting "child care rebate" for "child care tax rebate" (wherever occurring), effective 24 June 2009.
S 65EAC inserted by No 53 of 2008, s 3 and Sch 2 item 13, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
Subdivision A - Determination of entitlement to child care rebate
History
Subdiv A repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv A (heading) substituted by No 50 of 2009, s 3 and Sch 1 item 13, effective 24 June 2009. For transitional provisions, see note under Div 4AA heading. Subdiv A (heading) formerly read:
Subdiv A - Determination of entitlement to child care tax rebate
Subdiv A inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
SECTION 65EA
65EA
Determining entitlement, or no entitlement, to child care rebate - eligibility for child care benefit by fee reduction
(Repealed by No 22 of 2017)
History
S 65EA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EA formerly read:
SECTION 65EA Determining entitlement, or no entitlement, to child care rebate - eligibility for child care benefit by fee reduction
65EA(1)
This section applies in respect of an individual and a child for a period in an income year if:
(a)
the Secretary has determined under section 51B that the individual is entitled to be paid child care benefit by fee reduction for one or more sessions of care provided by an approved child care service to the child during the period; or
(b)
the Secretary has determined under subsection 51C(1) or (2) that the individual is not entitled to be paid child care benefit by fee reduction for one or more sessions of care provided by an approved child care service to the child during the period.
Determining entitlement to child care rebate
65EA(2)
If the Secretary is satisfied:
(a)
that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:
(i)
the child for the income year; and
(ii)
the care provided during the period; and
(b)
that, if the individual were to be entitled under this subsection to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount; and
(c)
that a determination under this subsection, or subsection 65EB(2), has not already been made in respect of the individual and the child for the income year;
the Secretary must determine that the individual is entitled to be paid child care rebate in respect of the child for the income year. The determination must include the amount of rebate to which the Secretary considers the individual to be entitled.
Note:
A determination may be made under section 65EC if a determination under this subsection, or subsection 65EB(2), has already been made in respect of the individual and the child for a period in the income year.
Determining no entitlement to child care rebate
65EA(3)
If:
(a)
the Secretary is not satisfied that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:
(i)
the child for the income year; and
(ii)
the care provided during the period; or
(b)the Secretary is satisfied that the individual is so eligible, but is not satisfied that, if the individual were to be entitled to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;
the Secretary must determine that the individual is not entitled to be paid child care rebate in respect of the child for the care provided during the period.
S 65EA substituted by No 50 of 2009, s 3 and Sch 3 item 1, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. No 50 of 2009, s 3 and Sch 3 item 2 also contains the following transitional provision:
Transitional - entitlement to child care rebate
(1)
This item applies to a determination if:
(a)
the determination was made under one of the following provisions of the A New Tax System (Family Assistance) (Administration) Act 1999:
(i)
subsection 65EA(2) or (3);
(ii)
subsection 65EB(2) or (3);
(iii)
subsection 65EC(1); and
(b)
the determination was in force immediately before 24 June 2009.
(2)
The determination has effect, after 24 June 2009, as if it had been made under that provision as amended by this Act.
S 65EA formerly read:
SECTION 65EA Determining entitlement, or no entitlement, to child care tax rebate - eligibility for child care benefit by fee reduction
65EA(1)
The Secretary must make a determination under this section in respect of an individual and a child for an income year if:
(a)
the Secretary has determined under section 51B that the individual is entitled to be paid child care benefit by fee reduction for one or more sessions of care provided by an approved child care service to the child during the income year; or
(b)
the Secretary has determined under subsection 51C(1) or (2) that the individual is not entitled to be paid child care benefit by fee reduction for one or more sessions of care provided by an approved child care service to the child during the income year;so long as a determination under this section, or section 65EB, has not already been made in respect of the individual and the child for the care.
History
S 65EA(1) substituted by No 53 of 2008, s 3 and Sch 1 item 59, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 65EA(1) formerly read:
65EA(1)
The Secretary must make a determination under this section in respect of an individual and a child for an income year if:
(a)
the Secretary has determined under section 51B that the individual is entitled to be paid child care benefit by fee reduction for one or more sessions of care provided by an approved child care service to the child during the year; and
(b)
no determination under this section, or section 65EB, has already been made in respect of the individual and the child for the income year.
Determining entitlement to child care tax rebate
65EA(2)
If the Secretary is satisfied that the individual is eligible under section 57F of the Family Assistance Act for child care tax rebate in respect of the child for the income year, the Secretary must determine the amount of the rebate which the Secretary considers the individual is entitled to be paid in respect of the child for the year.
Determining no entitlement to child care tax rebate
65EA(3)
If the Secretary is not satisfied that the individual is eligible under section 57F of the Family Assistance Act for child care tax rebate in respect of the child for the income year, the Secretary must determine that the individual is not entitled to be paid child care tax rebate in respect of the child for the year.
S 65EA inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
SECTION 65EB
65EB
Determining entitlement, or no entitlement, to child care rebate - eligibility for child care benefit for past period
(Repealed by No 22 of 2017)
History
S 65EB repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EB formerly read:
SECTION 65EB Determining entitlement, or no entitlement, to child care rebate - eligibility for child care benefit for past period
65EB(1)
This section applies in respect of an individual, a child and care provided to the child during a period in an income year if:
(a)
the Secretary has determined under section 52E that the individual is entitled to be paid child care benefit for the period in respect of the child; or
(b)
the Secretary has determined under subsection 52G(1) or (2) that the individual is not entitled to be paid child care benefit for the period in respect of the child.
Determining entitlement to child care rebate
65EB(2)
If the Secretary is satisfied:
(a)
that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:
(i)
the child for the income year; and
(ii)
the care provided during the period; and
(b)
that, if the individual were to be entitled under this subsection to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount; and
(c)
that a determination under this subsection, or subsection 65EA(2), has not already been made in respect of the individual and the child for the income year;
the Secretary must determine that the individual is entitled to be paid child care rebate in respect of the child for the income year. The determination must include the amount of rebate to which the Secretary considers the individual to be entitled.
Note:
A determination may be made under section 65EC if a determination under this subsection, or subsection 65EA(2), has already been made in respect of the individual and the child for a period in the income year.
Determining no entitlement to child care rebate
65EB(3)
If:
(a)
the Secretary is not satisfied that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:
(i)
the child for the income year; and
(ii)
the care provided during the period; or
(b)
the Secretary is satisfied that the individual is so eligible, but is not satisfied that, if the individual were to be entitled to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;
the Secretary must determine that the individual is not entitled to be paid child care rebate in respect of the child for the care provided during the period.
S 65EB substituted by No 50 of 2009, s 3 and Sch 3 item 1, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provision, see note under s 65EA. S 65EB formerly read:
SECTION 65EB Determining entitlement, or no entitlement, to child care tax rebate - eligibility for child care benefit for past period
65EB(1)
The Secretary must make a determination under this section in respect of an individual and care provided to a child by an approved child care service during a past period if:
(a)
the Secretary has determined under section 52E that the individual is entitled to be paid child care benefit for the period for care in respect of the child; or
(b)
the Secretary has determined under subsection 52G(1) or (2) that the individual is not entitled to be paid child care benefit for the past period in respect of the child;so long as a determination under this section, or section 65EA, has not already been made in respect of the individual and the child for care provided by the service during the period.
History
S 65EB(1) substituted by No 53 of 2008, s 3 and Sch 1 item 60, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 65EB(1) formerly read:
65EB(1)
The Secretary must make a determination under this section in respect of an individual and a child for a past period if:
(a)
the Secretary has determined under section 52E that the individual is entitled to be paid child care benefit for the period for care provided to the child; and
(b)
no determination under this section, or section 65EA, has already been made in respect of the individual and the child for the income year in which the period falls.
Determining entitlement to child care tax rebate
65EB(2)
If the Secretary is satisfied that the individual is eligible under section 57F of the Family Assistance Act for child care tax rebate in respect of the child for the income year in which the period falls, the Secretary must determine the amount of the rebate which the Secretary considers the individual is entitled to be paid in respect of the child for the year.
Determining no entitlement to child care tax rebate
65EB(3)
If the Secretary is not satisfied that the individual is eligible under section 57F of the Family Assistance Act for child care tax rebate in respect of the child for the income year in which the period falls, the Secretary must determine that the individual is not entitled to be paid child care tax rebate in respect of the child for the year.
S 65EB inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
SECTION 65EC
65EC
Later determinations of entitlement to child care rebate
(Repealed by No 22 of 2017)
History
S 65EC repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EC formerly read:
SECTION 65EC Later determinations of entitlement to child care rebate
65EC(1)
If:
(a)
a determination is made under subsection 65EA(2) or 65EB(2), or this subsection because of a previous application of this subsection, in respect of an individual and a child for an income year (the
earlier rebate determination
); and
(b)
a determination is later made under section 51B or 52E or subsection 51C(1) or 52G(1) in respect of the individual and the child and one or more sessions of care provided by an approved child care service during a period in the income year (the
later CCB determination
); and
(c)
the later CCB determination is not the result of a review of an earlier determination under the relevant section; and
(d)
as a result of the later CCB determination, the Secretary considers the individual is entitled to be paid an increased amount of child care rebate;
the Secretary must determine that the individual is entitled to be paid the increased amount of child care rebate in respect of the child for the year (the
later rebate determination
).
65EC(2)
The earlier rebate determination ceases to be in force when the later rebate determination is made
S 65EC substituted by No 50 of 2009, s 3 and Sch 3 item 1, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provision, see note under s 65EA. S 65EC formerly read:
SECTION 65EC Later determinations of entitlement to child care tax rebate
65EC(1)
If:
(a)
a determination (the
earlier rebate determination
) is made in respect of an individual and a child for an income year:
(i)
under subsection 65EA(2) as a result of a determination under section 51B or subsection 51C(1); or
(ii)
under subsection 65EA(3) in relation to a determination under section 51B or subsection 51C(1) or (2); or
(iii)
under subsection 65EB(2) as a result of a determination under section 52E or subsection 52G(1); or
(iv)
under subsection 65EB(3) in relation to a determination under section 52E or subsection 52G(1) or (2); or
(v)
under this section as a result of a determination under section 51B or 52E or subsection 51C(1) or 52G(1); and
(b)
a later determination is made under section 51B or 52E or subsection 51C(1) or 52G(1) in respect of the individual and the child for the income year (the
later CCB determination
); and
(c)
the later CCB determination is not the result of a review of an earlier determination under the relevant section; and
(d)
as a result of the later CCB determination, the Secretary considers:
(i)
if there has only been one earlier rebate determination and that was made under subsection 65EA(3) or 65EB(3) - the individual is entitled to be paid an amount (the
new amount
) of child care tax rebate in respect of the child for the year; or
(ii)
otherwise - the individual is entitled to be paid an increased amount (the
new amount
) of child care tax rebate;
the Secretary must determine that the individual is entitled to be paid the new amount of child care tax rebate in respect of the child for the year (the
later rebate determination
).
History
S 65EC(1) substituted by No 53 of 2008, s 3 and Sch 1 item 61, applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008. S 65EC(1) formerly read:
65EC(1)
If:
(a)
a determination is made in respect of an individual and a child for an income year:
(i)
under section 65EA as a result of a determination under section 51B (the
earlier rebate determination
); or
(ii)
under section 65EB as a result of a determination under section 52E (the
earlier rebate determination
); or
(iii)
under this section as a result of a determination under section 51B or 52E (the
earlier rebate determination
); and
(b)
another determination is made under either or both of sections 51B and 52E in respect of the individual and the child for the income year (the
later CCB determination
); and
(c)
the other determination is not the result of a review of an earlier determination under the relevant section; and
(d)
the amount of the rebate which the Secretary considers the individual is entitled to be paid in respect of the child for the year is increased as a result of the later CCB determination;the Secretary must determine under this section the amount of the rebate which the Secretary considers the individual is entitled to be paid in respect of the child for the year (the
later rebate determination
).
65EC(2)
The earlier rebate determination ceases to be in force when the later rebate determination is made.
S 65EC inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
SECTION 65ECA
65ECA
Determining entitlement, or no entitlement, to child care rebate - eligibility for child care benefit in substitution
(Repealed by No 22 of 2017)
History
S 65ECA repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65ECA formerly read:
SECTION 65ECA Determining entitlement, or no entitlement, to child care rebate - eligibility for child care benefit in substitution
65ECA(1)
This section applies in respect of an individual and a child for a period if:
(a)
the Secretary has determined under section 53D that the individual is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child and the period; or
(b)
the Secretary has determined under subsection 53E(1) or (2) that the individual is not entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child and the period.
Determining entitlement to child care rebate
65ECA(2)
If the Secretary is satisfied:
(a)
that the individual is eligible under subsection 57F(1A) of the Family Assistance Act for child care rebate in respect of the child and the period; and
(b)
that, if the individual were to be entitled under this subsection to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;
the Secretary must determine that the individual is entitled to be paid child care rebate because of the death of another individual in respect of the child and the period. The determination must include the amount of rebate to which the Secretary considers the individual to be entitled.
65ECA(3)
Subsections 65EA(3) and 65EB(3) do not limit subsection (2).
Determining no entitlement to child care rebate
65ECA(4)
If:
(a)
the Secretary is not satisfied that the individual is eligible under subsection 57F(1A) of the Family Assistance Act for child care rebate in respect of the child and the period; or
(b)
the Secretary is satisfied that the individual is so eligible, but is not satisfied that, if the individual were to be entitled to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;
the Secretary must determine that the individual is not entitled to be paid child care rebate because of the death of the other individual in respect of the child and the period.
S 65ECA inserted by No 50 of 2009, s 3 and Sch 2 item 11, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2007.
SECTION 65ED
65ED
When determination is in force
(Repealed by No 22 of 2017)
History
S 65ED repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65ED formerly read:
SECTION 65ED When determination is in force
65ED
Subject to subsection 65EC(2), a determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.
S 65ED inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
SECTION 65EE
65EE
Notice of determination
(Repealed by No 22 of 2017)
History
S 65EE repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EE formerly read:
SECTION 65EE Notice of determination
65EE(1)
The Secretary must give notice of a determination under this Subdivision to the individual, stating:
(a)
for a determination under a provision other than section 65ECA:
(i)
the income year in respect of which the determination is made; and
(ii)
whether, under the determination, the individual is entitled to be paid child care rebate in respect of the income year; and
(b)
for a determination under section 65ECA:
(i)
the period in respect of which the determination is made; and
(ii)
whether, under the determination, the individual is entitled to be paid child care rebate in respect of the period; and
(c)
if the individual is so entitled, the amount of the entitlement; and
(d)
that the individual may apply for review of the determination in the manner set out in Part 5
History
S 65EE(1) amended by No 50 of 2009, s 3 and Sch 2 item 12, by substituting paras (a) and (b), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2007. Paras (a) and (b) formerly read:
(a)
the income year in respect of which the determination is made; and
(b)
whether, under the determination, the individual is entitled to be paid child care tax rebate in respect of the income year; and
65EE(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
S 65EE inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
Subdivision B - Payment
History
Subdiv B repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdiv B inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
SECTION 65EF
65EF
Payment of child care rebate
(Repealed by No 22 of 2017)
History
S 65EF repealed by No 22 of 2017, s 3 and Sch 1 item 87, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 65EF formerly read:
SECTION 65EF Payment of child care rebate
Rebate because of eligibility for child care benefit by fee reduction or for past period
65EF(1)
If a determination is made under section 65EA, 65EB or 65EC that an individual is entitled to be paid child care rebate in respect of a child for an income year, the Secretary must pay the amount to which the individual is determined to be entitled, at such time as the Secretary considers appropriate, to the credit of a bank account nominated and maintained by the individual.
History
S 65EF amended by No 53 of 2008, s 3 and Sch 2 item 14, by substituting ", 65EB or 65EC" for "of 65EB", applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
65EF(2)
Subsection (1) has effect subject to subsections (2A), (2B) and (2C).
History
S 65EF(2) to (2C) substituted for s 65EF(2) by No 53 of 2008, s 3 and Sch 2 item 15, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA. S 65(2) formerly read:
65EF(2)
If a determination is made under section 65EC that an individual is entitled to be paid an increased amount of child care tax rebate in respect of a child for an income year, the Secretary must pay the amount of the increase, at such time as the Secretary considers appropriate, to the credit of a bank account nominated and maintained by the individual.
65EF(2A)
If the determination of entitlement is made under section 65EA, the Secretary must reduce the amount to be paid under subsection (1) by:
(a)
the amount of any child care rebate already paid under Subdivision AAB in respect of the individual and the child for a week included in the income year; and
(b)
the amount of any child care rebate already paid under Subdivision AA in respect of the individual and the child for a quarter included in the income year.
History
S 65EF(2A) substituted by No 25 of 2011, s 3 and Sch 1 item 16, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). S 65EF(2A) formerly read:
65EF(2A)
If the determination of entitlement is made under section 65EA, the Secretary must reduce the amount to be paid under subsection (1) by the amount of any child care rebate already paid under Subdivision AA in respect of the individual and the child for a quarter included in the income year.
S 65EF(2) to (2C) substituted for s 65EF(2) by No 53 of 2008, s 3 and Sch 2 item 15, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
65EF(2B)
If:
(a)
the determination of entitlement is made under section 65EC; and
(b)
when working out the amount of the entitlement under section 84A of the Family Assistance Act, the base weeks included one or more base weeks for which a determination under section 51B, or subsection 51C(1), was applicable;
the Secretary must reduce the amount to be paid under subsection (1) by the amount of any child care rebate already paid:
(ca)
under Subdivision AAB in respect of the individual and the child for a week all or part of which falls in the income year; and
(c)
under Subdivision AA in respect of the individual and the child for a quarter included in the income year; and
(d)
under subsection (1) in respect of the individual and the child for the income year.
History
S 65EF(2B) amended by No 25 of 2011, s 3 and Sch 1 item 17, by inserting para (ca), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 65EF(2) to (2C) substituted for s 65EF(2) by No 53 of 2008, s 3 and Sch 2 item 15, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
65EF(2C)
If the determination of entitlement is made under section 65EC in a case not covered by subsection (2B), the Secretary must reduce the amount to be paid under subsection (1) by the amount of any child care rebate already paid under subsection (1) in respect of the individual and the child for the income year.
History
S 65EF(2) to (2C) substituted for s 65EF(2) by No 53 of 2008, s 3 and Sch 2 item 15, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
Rebate because of eligibility for child care benefit in substitution
65EF(2D)
If a determination is made under section 65ECA that an individual is entitled to be paid child care rebate:
(a)
because of the death of another individual; and
(b)
in respect of a child and a period;
the Secretary must pay the amount to which the individual is determined to be entitled, at such time as the Secretary considers appropriate, to the credit of a bank account nominated and maintained by the individual.
History
S 65EF(2D) inserted by No 50 of 2009, s 3 and Sch 2 item 13, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2007.
65EF(2E)
However, the Secretary must reduce the amount to be paid under subsection (2D) by the amount of any child care rebate already paid:
(a)
under Subdivision AAB in respect of the deceased individual and the child for a week wholly or partly included in the period; and
(b)
under Subdivision AA in respect of the deceased individual and the child for a quarter wholly or partly included in the period.
History
S 65EF(2E) substituted by No 25 of 2011, s 3 and Sch 1 item 18, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). S 65EF(2E) formerly read:
65EF(2E)
However, the Secretary must reduce the amount to be paid under subsection (2D) by the amount of any child care rebate already paid under Subdivision AA in respect of the deceased individual and the child for a quarter wholly or partly included in the period.
S 65EF(2E) inserted by No 50 of 2009, s 3 and Sch 2 item 13, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2007.
Secretary may direct payment in a different way
65EF(3)
The Secretary may direct that the whole or a part of an amount which is to be paid under this section is to be paid in a different way from that provided for by subsection (1) or (2D). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.
History
S 65EF(3) amended by No 50 of 2009, s 3 and Sch 2 item 14, by inserting "or (2D)" after "(1)", applicable in relation to care provided by an approved child care service to a child on or after 1 July 2007.
S 65EF(3) amended by No 53 of 2008, s 3 and Sch 2 item 16, by omitting "or (2)" after "subsection (1)", applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
Payment is subject to other provisions
65EF(4)
This section is subject to Part 4 and to Division 3 of Part 8B.
S 65EF amended by No 50 of 2009, s 3 and Sch 1 item 26, by substituting "child care rebate" for "child care tax rebate" (wherever occurring), effective 24 June 2009.
S 65EF inserted by No 113 of 2007, s 3 and Sch 1 item 12, effective 1 July 2007.
Division 4A - One-off payment to families
History
Div 4A inserted by No 60 of 2004, s 3 and Sch 1 item 3, effective 26 May 2004.
SECTION 65F
65F
Payment of one-off payment to families
If an individual is entitled to a one-off payment to families, the Secretary must pay the payment to the individual in a single lump sum:
(a)
on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
History
S 65F inserted by No 60 of 2004, s 3 and Sch 1 item 3, effective 26 May 2004.
Division 4B - Economic security strategy payment to families
History
Div 4B inserted by No 131 of 2008, s 3 and Sch 3 item 5, effective 1 December 2008.
SECTION 65G
65G
Payment of economic security strategy payment to families
If an individual is entitled to an economic security strategy payment to families, the Secretary must pay the payment to the individual in a single lump sum:
(a)
on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
History
S 65G inserted by No 131 of 2008, s 3 and Sch 3 item 5, effective 1 December 2008.
Division 4C - Back to school bonus and single income family bonus
History
Div 4C inserted by No 4 of 2009, s 3 and Sch 3 item 4, effective 18 February 2009.
SECTION 65H
65H
Payment of back to school bonus and single income family bonus
If an individual is entitled to a back to school bonus or a single income family bonus, the Secretary must pay the bonus to the individual in a single lump sum:
(a)
on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the bonus to be made; and
(b)
in such a manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the bonus.
History
S 65H inserted by No 4 of 2009, s 3 and Sch 3 item 4, effective 18 February 2009.
Division 4CA - ETR payment
History
Div 4CA inserted by No 50 of 2012, s 3 and Sch 1 item 3, effective 27 May 2012.
SECTION 65HA
Payment of ETR payment
65HA(1)
If an individual is entitled to an ETR payment, the Secretary must pay the payment to the individual in a single lump sum:
(a)
on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
65HA(2)
If, on 8 May 2012, section
32AA or
32AD prevents the Secretary from making a payment of family tax benefit to the individual, or the individual's partner, worked out on an estimated income basis, the Secretary must not pay the ETR payment to the individual at a time that is earlier than the time family tax benefit is paid to the individual, or the individual's partner, in relation to that day.
History
S 65HA(2) amended by No 50 of 2012, s 3 and Sch 1 item 25, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3)", effective 1 July 2012.
History
S 65HA inserted by No 50 of 2012, s 3 and Sch 1 item 3, effective 27 May 2012.
Division 4D - Clean energy advance
History
Div 4D inserted by No 141 of 2011, s 3 and Sch 2 item 4, effective 14 May 2012.
SECTION 65J
Payment of clean energy advance
65J(1)
Subject to this section, if an individual is entitled to a clean energy advance, the Secretary must pay the advance to the individual in a single lump sum:
(a)
on the day that the Secretary considers to be the earliest day on which it is reasonably practicable for the advance to be paid; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the advance.
65J(2)
If:
(a)
the decision day (see subsection
105(1) of the Family Assistance Act) or the trigger day (see subsection
108(1),
(1A) or
(2) of that Act), as the case may be, is on or after 1 July 2012 and before 1 July 2013; and
(b)
on that day, section
32AA or
32AD of this Act prevents the Secretary from making a payment of family tax benefit to the individual, or the individual's partner, worked out on an estimated income basis;
then the Secretary must not pay the clean energy advance to the individual at a time that is earlier than the time family tax benefit is paid to the individual, or the individual's partner, in relation to that day.
History
S 65J(2) amended by No 49 of 2012, s 3 and Sch 3 item 9, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3) of this Act" in para (b), effective 1 July 2012.
S 65J(2) amended by No 49 of 2012, s 3 and Sch 6 item 28, by inserting ", (1A)" in para (a), effective 14 May 2012.
65J(3)
If:
(a)
the decision day (see subsection
105(1) of the Family Assistance Act) is on or after 1 July 2013; and
(b)
in relation to one or more days in the 2012-13 income year, section
32AA or
32AD of this Act prevents the Secretary from making a payment of family tax benefit to the individual, or the individual's partner, worked out on an estimated income basis;
then the Secretary must not pay the clean energy advance to the individual at a time that is earlier than the time family tax benefit is paid to the individual, or the individual's partner, in relation to those days.
History
S 65J(3) amended by No 49 of 2012, s 3 and Sch 3 item 9, by substituting "an estimated income basis" for "the basis referred to in subsection 20(1), (2A) or (3) of this Act" in para (b), effective 1 July 2012.
History
S 65J inserted by No 141 of 2011, s 3 and Sch 2 item 4, effective 14 May 2012.
Division 4DA - 2020 economic support payment
History
Div 4DA inserted by No 22 of 2020, s 3 and Sch 4 item 3, effective 25 March 2020.
SECTION 65JA
Payment of first 2020 economic support payment
65JA(1)
If an individual is entitled to a first 2020 economic support payment, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:
(a)
on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
65JA(2)
The Secretary must not pay the payment on or after 1 July 2022 if the individual is entitled to the payment because subsection
116(2) or
(4) of the Family Assistance Act applies to the individual on a day.
History
S 65JA inserted by No 22 of 2020, s 3 and Sch 4 item 3, effective 25 March 2020.
SECTION 65JB
Payment of second 2020 economic support payment
65JB(1)
If an individual is entitled to a second 2020 economic support payment, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:
(a)
on the date, occurring on or after 10 July 2020, that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
65JB(2)
The Secretary must not pay the payment on or after 1 July 2023 if the individual is entitled to the payment because subsection
116(2) or
(4) of the Family Assistance Act applies to the individual on 10 July 2020.
History
S 65JB inserted by No 22 of 2020, s 3 and Sch 4 item 3, effective 25 March 2020.
Division 4DB - Additional economic support payments
History
Div 4DB inserted by No 97 of 2020, s 3 and Sch 1 item 3, effective 14 November 2020.
SECTION 65JC
Payment of additional economic support payment 2020
65JC(1)
If an individual is entitled to an additional economic support payment 2020, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:
(a)
on the date, occurring on or after 27 November 2020, that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
65JC(2)
The Secretary must not pay the payment on or after 1 July 2023 if the individual is entitled to the payment because subsection
123(2) or
(4) of the Family Assistance Act applies to the individual on 27 November 2020.
History
S 65JC inserted by No 97 of 2020, s 3 and Sch 1 item 3, effective 14 November 2020.
SECTION 65JD
Payment of additional economic support payment 2021
65JD(1)
If an individual is entitled to an additional economic support payment 2021, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:
(a)
on the date, occurring on or after 26 February 2021, that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and
(b)
in such manner as the Secretary considers appropriate.
Note:
The individual does not have to make a claim for the payment.
65JD(2)
The Secretary must not pay the payment on or after 1 July 2023 if the individual is entitled to the payment because subsection
123(2) or
(4) of the Family Assistance Act applies to the individual on 26 February 2021.
History
S 65JD inserted by No 97 of 2020, s 3 and Sch 1 item 3, effective 14 November 2020.
Division 4E - Single income family supplement
History
Div 4E inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
Subdivision A-Making claims
History
Subdiv A inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65K
Need for a claim
65K(1)
Subject to subsection (2), the only way that an individual can become entitled to be paid single income family supplement is to make a claim in accordance with this Division.
65K(2)
If:
(a)
in relation to a period in an income year:
(i)
a determination under section 16 or 17 is in force in respect of an individual as a claimant; or
(ii)
a determination under section 18 is in force in respect of an individual because the Secretary is satisfied that the individual is eligible for family tax benefit under section 32 of the Family Assistance Act; and
(b)
the individual's rate of family tax benefit payable under the determination in relation to that period takes into account one or more FTB children of the individual;
the individual is not required to make a claim for single income family supplement in relation to that period.
History
S 65K inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KA
How to claim
65KA(1)
An individual (a
claimant
) may make a claim:
(a)
for payment of single income family supplement for a past period; or
(b)
for payment of single income family supplement by single payment/in substitution because of the death of another individual.
Form etc. of claim
65KA(2)
To be effective:
(a)
a claim must:
(i)
be made in a form and manner; and
(ii)
contain any information; and
(iii)
be accompanied by any documents; required by the Secretary; and
(b)
in the case of a claim for payment of single income family supplement for a past period - the tax file number requirement in section
65KB must be satisfied in relation to the claim; and
(c)
in the case of a claim for payment of single income family supplement in substitution because of the death of another individual - the tax file number requirement in section
65KC must be satisfied in relation to the claim.
History
S 65KA inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KB
Tax file number requirement to be satisfied for claims for a past period
65KB(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph
65KA(2)(b) (which states what is required for certain claims to be effective).
65KB(2)
Subject to subsection (7), the requirement is that a statement of one of the kinds set out in subsections (3), (4) and (5) must be made in relation to each TFN claim person.
Statement of tax file number
65KB(3)
The first kind of statement that can be made is a statement of the TFN claim person's tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.
Statement that TFN claim person does not know what his or her tax file number is etc.
65KB(4)
The second kind of statement that can be made is a statement by the TFN claim person 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
65KB(5)
The third kind of statement that can be made is a statement by the TFN claim person 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.
How statement to be given
65KB(6)
A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement
65KB(7)
The Secretary may determine that the requirement in subsection (2) does not apply to a TFN claim person if:
(a)
the person is, or was, the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection (4) or (5).
History
S 65KB inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KC
Tax file number requirement to be satisfied for claim in substitution because of the death of another individual
65KC(1)
This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph
65KA(2)(c) (which states what is required for claims in substitution because of the death of another individual to be effective).
65KC(2)
Subject to subsections (7) and (8), the requirement is that a statement of one of the kinds set out in subsections (3), (4) and (5) must be made in relation to each TFN substitution person.
Statement of tax file number
65KC(3)
The first kind of statement that can be made is a statement of a TFN substitution person's tax file number. Regardless of who the TFN substitution person is, this kind of statement can be made by the claimant only.
Statement that TFN substitution person does not know what his or her tax file number is etc.
65KC(4)
The second kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual's partner during the period in respect of which the payment is claimed to the effect that the TFN substitution 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
65KC(5)
The third kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual's partner during the period in respect of which the payment is claimed to the effect that the TFN substitution 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.
How statement to be given
65KC(6)
A statement made by the claimant must be made in the claim. A statement made by a TFN substitution person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.
Exemption from tax file number requirement
65KC(7)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant does not know the person's tax file number.
65KC(8)
The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant cannot obtain a statement referred to in subsection (4) or (5) in respect of the person.
History
S 65KC inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KD
Restrictions on claims for payment for a past period
Restriction where previous claim
65KD(1)
A claim for payment of single income family supplement for a past period is not effective if the claimant has previously made a claim for payment of single income family supplement for any of the past period (whether or not the claim has yet been determined).
Other restrictions
65KD(2)
A claim for payment of single income family supplement for a past period is not effective if:
(a)
the period does not fall wholly within one income year; or
(b)
the period does fall wholly within one income year (the
relevant income year
) but the claim is made after the end of:
(i)
the first income year after the relevant income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the claim before the end of that first income year.
History
S 65KD(2) amended by No 70 of 2013, s 3 and Sch 2B item 39, by substituting para (b), applicable in relation to a past period falling in the 2012-13 income year or a later income year. Para (b) formerly read:
(b)
the period does fall wholly within one income year but the claim is made after the end of the 2 income years immediately following that income year.
65KD(2A)
The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.
History
S 65KD(2A) inserted by No 70 of 2013, s 3 and Sch 2B item 40, applicable in relation to a past period falling in the 2012-13 income year or a later income year.
65KD(3)
A claim for payment of single income family supplement for a past period is not effective if the period occurs in the income year in which the claim is made.
History
S 65KD inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KE
Restrictions on bereavement claims
Restriction where previous claim
65KE(1)
A claim for payment of single income family supplement by single payment/in substitution because of the death of another individual is not effective if the claimant has previously made a claim for payment of single income family supplement because of the death of that individual (whether or not the claim has yet been determined).
Other restrictions
65KE(2)
If a claim for payment of single income family supplement by single payment/in substitution because of the death of another individual is based on eligibility for an amount of single income family supplement under section 57GF or 57GG of the Family Assistance Act, the claim is not effective if it is made after the end of the income year following the one in which the death occurred.
History
S 65KE inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KF
Claim may be withdrawn or varied
65KF(1)
A claimant may withdraw or vary a claim before the claim is determined.
65KF(2)
The claimant may only do so in a manner determined by the Secretary.
65KF(3)
If a claim is withdrawn, it is taken never to have been made.
History
S 65KF inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
Subdivision B - Determination of claims and payment of single income family supplement
History
Subdiv B inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KG
65KG
Secretary must determine claim
If an effective claim is made, the Secretary must determine the claim in accordance with this Subdivision. If a claim is not effective, it is taken not to have been made.
History
S 65KG inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KH
Restriction on determining claim where income tax assessment not made
65KH(1)
If, in relation to a claim for payment of single income family supplement made by an individual:
(a)
the claim is for payment of that supplement for a past period; and
(b)
the past period falls in an income year (the
past period income year
) that is one of the 2 income years before the one in which the claim is made; and
(c)
either or both of subsections (2) and (3) apply;
the Secretary can only determine the claim if each assessment concerned has been made.
65KH(2)
This subsection applies if:
(a)
the claimant is required to lodge an income tax return for the past period income year; and
(b)
at the time the claim is made, an assessment has not been made under the
Income Tax Assessment Act 1936 of the tax payable on the claimant's taxable income for the past period income year.
65KH(3)
This subsection applies if:
(a)
a person is the claimant's partner at any time during the past period; and
(b)
that person is required to lodge an income tax return for the past period income year; and
(c)
at the time the claim is made, an assessment has not been made under the
Income Tax Assessment Act 1936 of the tax payable on that person's taxable income for the past period income year.
History
S 65KH inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KI
Restriction on determining claim where income tax return not lodged
65KI(1)
If, in relation to a claim for payment of single income family supplement made by an individual:
(a)
the claim is for payment of that supplement for a past period; and
(b)
the past period falls in an income year (the
past period income year
) that is one of the 2 income years before the one in which the claim is made; and
(c)
either or both of subsections (2) and (3) apply;
then the claim is taken never to have been made.
65KI(2)
This subsection applies if:
(a)
the claimant is required to lodge an income tax return for the past period income year; and
(b)
the claimant has not lodged the return before the end of:
(i)
the first income year after the past period income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the return before the end of that first income year.
History
S 65KI(2) amended by No 70 of 2013, s 3 and Sch 2B item 41, by substituting para (b), applicable in relation to a past period falling in the 2012-13 income year or a later income year. Para (b) formerly read:
(b)
the claimant has not lodged the return before the end of the 2 income years immediately following the past period income year.
65KI(3)
This subsection applies if:
(a)
a person is the claimant's partner at any time during the past period; and
(b)
that person is required to lodge an income tax return for the past period income year; and
(c)
that person has not lodged the return before the end of:
(i)
the first income year after the past period income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.
History
S 65KI(3) amended by No 70 of 2013, s 3 and Sch 2B item 42, by substituting para (c), applicable in relation to a past period falling in the 2012-13 income year or a later income year. Para (c) formerly read:
(c)
that person has not lodged the return before the end of the 2 income years immediately following the past period income year.
65KI(4)
The further period referred to in subparagraph (2)(b)(ii) or (3)(c)(ii) must end no later than the end of the second income year after the past period income year.
History
S 65KI(4) inserted by No 70 of 2013, s 3 and Sch 2B item 43, applicable in relation to a past period falling in the 2012-13 income year or a later income year.
S 65KI inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KJ
Restriction on determining claim where tax file number not provided etc.
Statement that TFN claim person or TFN substitution person does not know what his or her tax file number is etc.
65KJ(1)
If:
(a)
a TFN claim person makes a statement of the kind set out in subsection
65KB(4); or
(b)
a TFN substitution person makes a statement of the kind set out in subsection
65KC(4);
the Secretary can only determine the claim concerned if:
(c)
within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(d)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.
Statement that an application for a tax file number is pending
65KJ(2)
If:
(a)
a TFN claim person makes a statement of the kind set out in subsection
65KB(5); or
(b)
a TFN substitution person makes a statement of the kind set out in subsection 65KC(5);
the Secretary can only determine the claim concerned if:
(c)
within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person's tax file number; or
(d)
28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:
(i)
the person has not applied for a tax file number; or
(ii)
an application by the person for a tax file number has been refused; or
(iii)
the person has withdrawn an application for a tax file number.
65KJ(3)
If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.
History
S 65KJ inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KK
65KK
Determination of past period entitlement claim
If:
(a)
the claim is one for payment of single income family supplement for a past period; and
(b)
the Secretary is satisfied that the claimant was eligible for single income family supplement:
(i)
for the whole of the period in accordance with Subdivision A of Division 6 of Part 3 of the Family Assistance Act; or
(ii)
for part of the period in accordance with that Subdivision and for the remainder of the period in accordance with section 57GE of that Act;
the Secretary must determine that the claimant is entitled to be paid single income family supplement for the past period.
History
S 65KK inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KL
65KL
Determination of bereavement entitlement claim
If:
(a)
the claim is one for payment of single income family supplement by single payment/in substitution because of the death of another individual; and
(b)
the Secretary is satisfied that the claimant is eligible for single income family supplement under section
57GF or
57GG of the Family Assistance Act;
the Secretary must determine that the claimant is entitled to be paid the single income family supplement.
History
S 65KL inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KM
65KM
Determination that no entitlement
If the Secretary is not satisfied as mentioned in section
65KK or 65KL, the Secretary must determine that the claimant is not entitled to be paid single income family supplement for the past period or because of the death of the other individual, as the case requires.
History
S 65KM inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KN
65KN
When determination is in force
A determination under this Division comes into force when it is made and remains in force at all times afterwards.
History
S 65KN inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KO
Notice of determination
65KO(1)
The Secretary must give notice of a determination under this Subdivision to the claimant, stating:
(a)
whether the claimant is entitled to be paid single income family supplement under the determination; and
(b)
if the claimant is so entitled - the amount of the supplement and how it is to be paid; and
(c)
that the claimant may apply for review of the determination in the manner set out in Part
5.
65KO(2)
The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.
History
S 65KO inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KP
Payment of single income family supplement - no claim required
65KP(1)
Subject to this section, if an individual is not required to make a claim for single income family supplement in relation to a period (the
past period)
in an income year (the
past period income year
), the Secretary must pay any amount of single income family supplement the individual is eligible for in relation to that past period:
(a)
on the day that the Secretary considers to be the earliest day on which it is reasonably practicable for the amount to be paid; and
(b)
in such manner as the Secretary considers appropriate.
Note:
Subsection 65K(2) sets out when a claim for single income family supplement is not required.
65KP(2)
If either or both of the following apply:
(a)
the individual is required to lodge an income tax return for the past period income year;
(b)
the following apply:
(i)
a person is the individual's partner at any time during the past period;
(ii)
that person is required to lodge an income tax return for the past period income year;
then the amount of single income family supplement cannot be paid to the individual unless, in relation to each person who is required to lodge an income tax return for that income year, an assessment has been made under the Income Tax Assessment Act 1936 of the tax payable on that person's taxable income for that income year.
65KP(3)
If either or both of the following apply:
(a)
the individual is required to lodge an income tax return for the past period income year, but the individual has not lodged the return before the end of:
(i)
the first income year after the past period income year; or
(ii)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the individual from lodging the return before the end of that first income year;
(b)
the following apply:
(i)
a person is the individual's partner at any time during thepast period;
(ii)
that person is required to lodge an income tax return for the past period income year;
(iii)
that person has not lodged the return before the end of the first income year after the past period income year, or of such further period (if any) as the Secretary allows if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the income tax return before the end of that first income year;
then the amount of single income family supplement is not to be paid to the individual.
History
S 65KP(3) amended by No 5 of 2015, s 3 and Sch 1 item 5, by substituting "income year;" for "income year." in para (a)(ii), effective 25 March 2015.
S 65KP(3) amended by No 70 of 2013, s 3 and Sch 2B items 44 and 45, by substituting paras (a) and (b)(iii), applicable in relation to a past period falling in the 2012-13 income year or a later income year. Paras (a) and (b)(iii) formerly read:
(a)
the individual is required to lodge an income tax return for the past period income year, but the individual has not lodged the return before the end of the 2 income years immediately following the past period income year;
(b)(iii)
that person has not lodged the return before the end of the 2 income years immediately following the past period income year;
65KP(3A)
The further period referred to in subparagraph (3)(a)(ii) or (3)(b)(iii) must end no later than the end of the second income year after the past period income year.
History
S 65KP(3A) inserted by No 70 of 2013, s 3 and Sch 2B item 46, applicable in relation to a past period falling in the 2012-13 income year or a later income year.
65KP(4)
This section is subject to Part
4, Division
3 of Part
8B and sections
225 and
226.
History
S 65KP inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KQ
Payment of single income family supplement - claim required
65KQ(1)
If an individual is entitled to be paid an amount of single income family supplement under a determination on a claim for payment of single income family supplement:
(a)
for a past period; or
(b)
by single payment/in substitution because of the death of another individual;
the Secretary must pay the amount to the individual at such time and in such manner as the Secretary considers appropriate.
65KQ(2)
This section is subject to Part
4, Division
3 of Part
8B and sections
225 and
226.
History
S 65KQ inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KR
Secretary's power to request tax file numbers
65KR(1)
If a determination is in force under which the claimant is entitled to be paid single income family supplement for a past period, the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, a written statement, in relation to a specified TFN determination person, of whichever of the kinds set out in subsections (2), (3) and (4) the claimant chooses.
Statement of tax file number
65KR(2)
The first kind of statement that can be made is a statement of the TFN determination person's tax file number. Regardless of who the TFN determination person is, this kind of statement can be made by the claimant only.
Statement that TFN person does not know what his or her tax file number is etc.
65KR(3)
The second kind of statement that can be made is a statement by the TFN determination person 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
65KR(4)
The third kind of statement that can be made is a statement by the TFN determination person 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.
History
S 65KR insertedby No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KS
Variation of past period determinations where failure to provide tax file number
Non-compliance with request
65KS(1)
If:
(a)
the Secretary makes a request under subsection
65KR(1); and
(b)
the claimant does not comply with the request within 28 days of the request being made;
then, subject to subsection (2), the consequence in subsection (7) applies.
Exemption from request under subsection 65KR(1)
65KS(2)
The Secretary may determine that the consequence in subsection (7) does not apply if:
(a)
the TFN determination person concerned is or was the claimant's partner; and
(b)
the claimant cannot obtain from the person:
(i)
the person's tax file number; or
(ii)
a statement by the person under subsection 65KR(3) or (4).
Statement made by TFN determination person under subsection 65KR(3)
65KS(3)
If:
(a)
the Secretary makes a request under subsection
65KR(1); and
(b)
by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection
65KR(3); and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has no tax file number;
the consequence in subsection (7) applies.
Statement made by TFN determination person under subsection 65KR(4)
65KS(4)
If:
(a)
the Secretary makes a request under subsection
65KR(1); and
(b)
by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection
65KR(4); and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;
the consequence in subsection (7) applies.
Statement made by TFN claim person under subsection 65KB(4)
65KS(5)
If:
(a)
a TFN claim person has made a statement of the kind set out in subsection
65KB(4); and
(b)
a determination is in force under which the claimant is entitled to be paid single income family supplement for a past period; and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;
the consequence in subsection (7) applies.
Statement made by TFN claim person under subsection 65KB(5)
65KS(6)
If:
(a)
a TFN claim person has made a statement of the kind set out in subsection
65KB(5); and
(b)
a determination is in force under which the claimant is entitled to be paid single income familysupplement for a past period; and
(c)
the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;
the consequence in subsection (7) applies.
Consequence - variation of determination
65KS(7)
For the purposes of subsection (1), (3), (4), (5) or (6), the consequence is that the Secretary may, if the determination is one under which the claimant is entitled to be paid single income family supplement for a past period, vary the determination so that it has the effect that the claimant is not entitled to be paid single income family supplement for any day in the past period.
Consequence of Secretary later becoming aware of tax file number
65KS(8)
If:
(a)
under subsection (7), the Secretary varies the determination; and
(b)
the Secretary finds out the tax file number of the TFN determination person or TFN claim person, as the case requires, at any time after the variation takes place;
the Secretary must vary the determination to undo the effect mentioned in subsection (7).
History
S 65KS inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
SECTION 65KT
Notice of variation of determination
65KT(1)
The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part
5.
65KT(2)
The variation is not ineffective by reason only that the requirements of subsection (1) are not complied with.
History
S 65KT inserted by No 141 of 2011, s 3 and Sch 8 item 10, applicable in relation to the 2012-13 income year and later income years.
Division 5 - Payment protection and garnishee orders
SECTION 66
PROTECTION OF PAYMENTS UNDER THIS PART
66(1)
Payments of the following are absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise:
(a)
family tax benefit;
(b)
family tax benefit advances;
(ba)
(Repealed by No 96 of 2014)
(c)
stillborn baby payments;
(d)
(Repealed by No 49 of 2012)
(e)-(ea)
(Repealed by No 22 of 2017)
(eb)
single income family supplement;
(f)-(fb)
(Repealed by No 22 of 2017)
(g)
one-off payment to families;
(h)
economic security strategy payment to families;
(i)
back to school bonus or single income family bonus;
(j)
clean energy advance;
(k)
ETR payment;
(l)
2020 economic support payment;
(m)
additional economic support payment 2020;
(n)
additional economic support payment 2021.
History
S 66(1) amended by No 97 of 2020, s 3 and Sch 1 item 4, by inserting para (m) and (n), effective 14 November 2020.
S 66(1) amended by No 22 of 2020, s 3 and Sch 4 item 4, by inserting para (l), effective 25 March 2020.
S 66(1) amended by No 22 of 2017, s 3 and Sch 1 items 88 and 89, by repealing para (e), (ea) and (f) to (fb), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (e), (ea) and (f) to (fb) formerly read:
(e)
child care benefit;
(ea)
child care rebate;
(f)
payments under section 219Q or subsection 219QA(2) in respect of fee reduction;
(faa)
payments under section 219QC or subsection 219QD(2) in respect of child care rebate;
(fa)
payments of enrolment advances under section 219RA;
(fb)
payments under section 219RD (business continuity payments);
S 66(1) amended by No 96 of 2014, s 3 and Sch 9 item 16, by repealing para (ba), effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. Para (ba) formerly read:
(ba)
schoolkids bonus;
S 66(1) amended by No 70 of 2013, s 3 and Sch 2A item 41, by substituting para (c), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. Para (c) formerly read:
(c)
baby bonus;
S 66(1) amended by No 49 of 2012, s 3 and Sch 1 item 43, by repealing para (d), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Para (d) formerly read:
(d)
maternity immunisation allowance;
S 66(1) amended by No 50 of 2012, s 3 and Sch 1 item 4, and Sch 2 item 14, by inserting para (ba) and (k), effective 27 May 2012.
S 66(1) amended by No 141 of 2011, s 3 and Sch 8 item 11, by inserting para (eb), applicable in relation to the 2012-13 income year and later income years.
S 66(1) amended by No 141 of 2011, s 3 and Sch 2 item 5, by inserting para (j), effective 14 May 2012.
S 66(1) amended by No 25 of 2011, s 3 and Sch 1 item 19, by inserting para (faa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 66(1) amended by No 34 of 2010, s 3 and Sch 1 item 1, by inserting para (fb), effective 13 April 2010.
S 66(1) amended by No 4 of 2009, s 3 and Sch 3 item 5, by inserting para (i), effective 18 February 2009.
S 66(1) amended by No 131 of 2008, s 3 and Sch 3 item 6, by inserting para (h), effective 1 December 2008.
S 66(1) amended by No 53 of 2008, s 3 and Sch 5 item 11, by inserting para (ea), effective 25 June 2008.
S 66(1) amended by No 118 of 2007, s 3 and Sch 1 item 31, by substituting paras (f) and (fa) for para (f), effective 29 June 2007. Para (f) formerly read:
(f)
payments of advances under section 219R;
S 66(1) amended by No 82 of 2007, s 3 and Sch 6 item 34, by substituting para (c), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
Para (c) formerly read:
(c)
maternity payment;
S 66(1) amended by No 60 of 2004, s 3 and Sch 1 item 4, by inserting para (g) at the end, effective 26 May 2004.
S 66(1) amended by No 59 of 2004, s 3 and Sch 2 item 26, by substituting para (c), effective 1 July 2004. No 59 of 2004, s 3 and Sch 2 item 27, contains the following saving provision:
Saving provision for maternity allowance payments
27
Despite the amendment of section 66 of the A New Tax System (Family Assistance) (Administration) Act 1999, that section applies to a payment of maternity allowance made before, on or after the commencement of this Division as if the amendment had not been made.
Para (c) formerly read:
(c)
maternity allowance;
S 66(1) amended by No 45 of 2000, s 3 Sch 2 item 68, by substituting para (f), effective 1 July 2000. For transitional provisions see note under s 69. Para (f) formerly read:
(f)
if regulations in accordance with paragraph 63(e) provide for advance payments to be set off as mentioned in that paragraph-those advance payments.
66(2)
Subsection
(1) has effect subject to:
(a)-(ab)
(Repealed by No 22 of 2017)
(b)
section
84 (about deductions from a person's family tax benefit to repay a debt of the person); and
(ba)
section
84A (about setting off a person's entitlement to family assistance against a debt of the person); and
(bb)
section
87A (setting off debts against various payments);
(bc)
(Repealed by No 79 of 2011)
(c)
section
92 (about a person consenting to deductions from the person's family tax benefit to repay the debt of someone else); and
(ca)
section
92A (about setting off family assistance of a person to repay the debt of another person); and
(cb)-(cc)
(Repealed by No 22 of 2017)
(cd)
Division
3 of Part
8B (about payments to payment nominee); and
(d)
section
225 (about making of deductions from family assistance for payment to the Commissioner of Taxation); and
(e)
section
226 (about setting off a family assistance entitlement against a tax liability); and
(f)
section
227 (about deductions from family tax benefit to repay certain child support debts); and
(fa)
Part 3AA of the
Social Security (Administration) Act 1999; and
(g)
Part 3B of the
Social Security (Administration) Act 1999.
History
S 66(2) amended by No 39 of 2022, s 3 and Sch 1 item 49, by substituting "Part 3B" for "Parts 3B and 3D" in para (g), effective 30 March 2023.
S 66(2) amended by No 39 of 2022, s 3 and Sch 1 item 1A, by inserting para (fa), effective 1 October 2022.
S 66(2) amended by No 22 of 2017, s 3 and Sch 1 items 90 and 91, by repealing para (a) to (ab) and (cb) to (cc), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (a) to (ab) and (cb) to (cc) formerly read:
(a)
subsections 56(3) and 56A(3) (about payment of child care benefit in a different way); and
(aa)
subsections 65EAA(3), 65EAAC(3) and 65EF(3) (about payment of child care rebate in a different way); and
(aaa)
subsection 65EAAF(3) (about setting off a decrease in a weekly amount of child care rebate against rebate for a later period); and
(ab)
subsection 65EAB(3) (about setting off a decrease in a quarterly amount of child care rebate against rebate for a later quarter); and
(cb)
section 219QA (setting off a recalculated fee reduction against payments under section 219Q or subsection 219QA(2) in respect of fee reduction or payments of enrolment advances under section 219RA);
(cba)
section 219QD (setting off a recalculated weekly payment of child care rebate against various payments);
(cc)
section 219RC (setting off an enrolment advance against payments under section 219Q or subsection 219QA(2) in respect of fee reduction or payments of enrolment advances under section 219RA);
S 66(2) amended by No 144 of 2015, s 3 and Sch 1 item 2, by substituting "Parts 3B and 3D" for "Part 3B" in para (g), effective 13 November 2015.
S 66(2) amended by No 79 of 2011, s 3 and Sch 1 items 3 and 4 by substituting "various payments" for "the payment of enrolment advances under section 219RA" in para (bb) and repealing para (bc), effective 26 July 2011. Para (bc) formerly read:
(bc)
section 87B (setting off debts against payments under section 219Q or subsection 219QA(2) in respect of fee reduction);
S 66(2) amended by No 53 of 2011, s 3 and Sch 5 items 28 to 30, by omitting "23(4)," and substituting "child care benefit in a different way" for "a person's family assistance to someone else on behalf of the person" in para (a), and inserting para (cd), effective 1 July 2011.
S 66(2) amended by No 25 of 2011, s 3 and Sch 1 items 20 to 24, by inserting ", 65EAAC(3)" in para (aa), inserting para (aaa) and (cba), and substituting "various payments" for "payments under section 219Q or subsection 219QA(2) in respect of fee reduction or payments of enrolment advances under section 219RA" in paras (cb) and (cc), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 66(2) amended by No 63 of 2008, s 3 and Sch 2 item 33, by omitting "47(2)" after "23(4)", effective 1 January 2009. For application and transitional provision, see note under s 47(1AA).
S 66(2) amended by No 53 of 2008, s 3 and Sch 3 items 1 and 2, by omitting "arrears of" before "family assistance" in paras (ba) and (ca), effective 25 June 2008.
S 66(2) amended by No 53 of 2008, s 3 and Sch 2 item 17, by inserting paras (aa) and (ab), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 66(2) amended by No 130 of 2007, s 3 and Sch 1 item 1, by inserting para (g) at the end, effective 18 August 2007.
S 66(2) amended by No 118 of 2007, s 3 and Sch 1 items 32 and 33, by inserting paras (bb) and (bc) after para (ba) and inserting paras (cb) and (cc) after para (ca), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 66(2) amended by No 108 of 2006, s 3 and Sch 2 item 1, by substituting "56(3) and 56A(3)" for "56(2) and 56A(2)" in para (a), effective 27 September 2006.
S 66(2) amended by No 75 of 2001.
S 66(2) amended by No 45 of 2000. For transitional provisions see note under s 69. Para (a) formerly read:
(a)
subsections 23(4) and 47(2), and regulations in accordance with subsection 55(2) (about payment of a person's family assistance to someone else on behalf of the person); and
Paras (f) and (g) formerly read:
(f)
section 227 (about setting off a person's entitlement to arrears of family assistance against a debt of the person); and
(g)
section 228 (about a person consenting to deductions from the person's entitlement to arrears of family assistance to repay the debt of another person).
History
S 66 amended by No 50 of 2009, s 3 and Sch 1 item 27, by substituting "child care rebate" for "child care tax rebate" (wherever occurring), effective 24 June 2009.
SECTION 67
Effect of garnishee etc order
67(1)
If:
(a)
a person has an account with a financial institution; and
(b)
payments of any of the kinds mentioned in subsection
66(1) are being paid, or have been paid, to the credit of the account; and
(c)
a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
67(2)
The saved amount is worked out as follows:
Method statement
Step 1.
Work out the total amount of the payments mentioned in subsection (1) 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
.
PART 3A - PAYMENT OF CHILD CARE SUBSIDY AND ADDITIONAL CHILD CARE SUBSIDY
History
Pt 3A inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. No 22 of 2017, s 3 and Sch 4 contain the following application, saving and transitional provisions:
Schedule 4 - Application, savingand transitional provisions
Part 1 - Introduction
1 Definitions
1
In this Schedule:
Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
commencement day
means 2 July 2018.
Note:
Schedule 1 commences on 2 July 2018.
pre-commencement period
means the period commencing on 1 January 2018 and ending on 1 July 2018.
Part 2 - Child care subsidy and additional child care subsidy
2 Commencement of child care subsidy and additional child care subsidy
2
A person can only be eligible for child care subsidy or additional child care subsidy for a session of care provided on or after the commencement day.
3 Deemed claims for CCS
3
An individual is taken to have made a claim in respect of a child for CCS, in accordance with Division 2 of Part 3A of the Administration Act, if, immediately before the commencement day:
(a)
a determination is in effect under section 50F of the Administration Act, that the individual is conditionally eligible under section 42 of the Assistance Act in respect of the child; or
(b)
the individual has made an effective claim for child care benefit on which the Secretary has not yet made a determination.
4 Pre-commencement claims etc. for CCS
(1)
The following things may be done during the pre-commencement period, for the purposes of ensuring that amounts of CCS and ACCS, and amounts under section 67EB of the Administration Act, can be paid promptly for weeks commencing on and after the commencement day:
(a)
individuals may make claims for CCS, as if the amendments made by Schedule 1 were in force;
(b)
the Secretary may exercise powers and perform functions under Part 4A of the Assistance Act and Part 3A of the Administration Act as inserted by Schedule 1, and under Part 6 of the Administration Act as amended by Schedule 1, as if the amendments made by Schedule 1 were in force.
(2)
Subitem (1) does not limit the operation of section 4 of the Acts Interpretation Act 1901.
(3)
To avoid doubt, subitem (1) is subject to item 2.
…
6 Requirement for enrolments to be in writing
6
References in the Assistance Act and the Administration Act to a complying written arrangement include references to an arrangement:
(a)
in force immediately before the commencement day; and
(b)
under which a child was enrolled for care by an approved child care service within the meaning of the Administration Act as in force immediately before the commencement day.
Part 3 - Child care benefit and child care rebate
7 End of child care benefit and child care rebate
7
No person can be eligible for child care benefit or child care rebate for care, or a session of care, provided on or after the commencement day.
8 Saving of law in relation to child care benefit and child care rebate
(1)
The following Acts and instruments continue in force, on and after the commencement day, in relation to child care benefit or child care rebate for which a person was eligible before the commencement day, subject to any modifications prescribed by rules made under item 12 (together these are the
continued law
):
(a)
the Assistance Act, as in force immediately before the commencement day;
(b)
the Administration Act, as in force immediately before the commencement day;
(c)
an instrument (whether legislative or administrative) in force for the purposes of the Assistance Act or the Administration Act immediately before the commencement day;
(d)
any other Act amended by this Act, as in force immediately before the commencement day.
(2)
Without limitation, subitem (1) has the following effects:
(a)
a person may make a claim for child care benefit or child care rebate on or after the commencement day, in relation to a session of care provided before the commencement day;
(b)
the Secretary must make determinations on and after the commencement day of eligibility for, and entitlement to be paid, child care benefit or child care rebate in respect of sessions of care provided before the commencement day;
(c)
payments must be made on and after the commencement day of, or in relation to, child care benefit and child care rebate for which a person was eligible before the commencement day;
(d)the person continues to be liable for any debt to the Commonwealth incurred before the commencement day;
(e)
the person may incur a debt to the Commonwealth after the commencement day in relation to payments made to the person before, on or after the commencement day;
(f)
any such debts may be recovered on or after the commencement day in accordance with the continued law;
(g)
decisions in relation to child care benefit and child care rebate that are reviewable may be reviewed on and after the commencement day in accordance with the continued law.
(3)
Subitem (1) does not apply to the extent of any inconsistency with another provision of this Schedule.
(4)
Subitem (1) does not limit the operation of section 7 of the Acts Interpretation Act 1901 in relation to the repeals made by Schedule 1 to this Act.
Part 4 - Providers of child care services
9 Deemed approval of operators of existing approved child care services
(1)
If, immediately before the commencement day, a person is the operator of an approved child care service within the meaning of the Administration Act as then in force, then, on and after the commencement day:
(a)
the person is taken to be:
(i)
an approved provider within the meaning of the Administration Act; and
(ii)
approved in respect of the service; and
(b)
the service is taken to be a service of a type determined by the Secretary under subitem (2).
(2)
For paragraph (1)(b), the Secretary may, by instrument, determine an approved child care service within the meaning of the Administration Act as in force immediately before the commencement day to be a service of one of the following types, as described in the table in subclause 2(3) of Schedule 2 to the Assistance Act (CCS hourly rate cap):
(a)
a centre-based day care service;
(b)
a family day care service;
(c)
an outside school hours care service;
(d)
a type of service prescribed by the Minister's rules for the purposes of item 4 of that table.
(3)
An instrument made under subitem (2):
(a)
is not a legislative instrument if it is expressed to apply in relation to a particular approved child care service; and
(b)
is a legislative instrument if it is expressed to apply in relation to a class of approved child care services.
(4)
If, immediately before the commencement day, the approval of a child care service is suspended under Part 8 of the Administration Act, then, on and from the commencement day:
(a)
the approval of the operator of the service under subitem (1) is taken to be suspended in respect of the service; and
(b)
the Secretary may deal with the operator in respect of the service in accordance with the Administration Act as amended by this Act.
10 Saving of law in relation to approved providers
(1)
The following Acts and instruments continue in force, on and after the commencement day, subject to any modifications prescribed by rules made under item 12 (together these are the
continued law
), in relation to things done, or matters arising, before the commencement day in relation to a person mentioned in subitem 9(1):
(a)
the Assistance Act, as in force immediately before the commencement day;
(b)
the Administration Act, as in force immediately before the commencement day;
(c)
an instrument (whether legislative or administrative) in force for the purposes of the Assistance Act or the Administration Act immediately before the commencement day;
(d)
any other Act amended by this Act, as in force immediately before the commencement day.
(2)
Without limitation, subitem (1) has the following effects:
(a)
the person must continue to comply with the continued law in relation to care provided before the commencement day;
(b)
the person continues to be liable for any debt to the Commonwealth incurred before the commencement day;
(c)
the person may incur a debt to the Commonwealth after the commencement day in relation to payments made to the person before, on or after the commencement day;
(d)
any such debts may be recovered on or after the commencement day in accordance with the continued law;
(e)
decisions in relation to the person that are reviewable may be reviewed on and after the commencement day in accordance with the continued law.
Part 5 - Miscellaneous
11 Delegations
11
The amendment of subsection 221(1) of the Administration Act by this Act does not affect a delegation in effect for the purposes of that subsection immediately before the commencement day.
12 Transitional rules
(1)
The Minister may make rules prescribing matters:
(a)
required or permitted by this Act to be prescribed by the rules; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
In particular, rules may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:
(a)
the amendments or repeals made by any Schedule to this Act; or
(b)
the enactment of this Act.
(3)
Rules made within 2 years after the commencement day may provide that this Act or any other Act or instrument has effect with any modifications prescribed by the rules.
(4)
Subsection 12(2) of the Legislation Act 2003 does not apply in relation to a provision of the rules if:
(a)
the rules are registered within 2 years after the commencement day; and
(b)
the provision is taken to commence before the day the rules are registered, but on or after the commencement day.
(5)
However, if:
(a)
rules are registered to which paragraph (4)(a) and (b) applies; and
(b)
a person engaged in conduct before the day the rules were registered; and
(c)
but for any retrospective effect of the rules, the conduct would not have contravened a provision of this Act, or another Act or instrument;
then a court must not convict the person of an offence, or impose a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of this Act or another Act or instrument.
(6)
This Schedule does not limit the rules that may be made under this item.
Division 1 - Introduction
History
Div 1 inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67AA
Simplified outline of this Part
Individuals must make a claim for CCS in order to become entitled to be paid CCS or ACCS in relation to child care provided to a child.
In order to become entitled to be paid ACCS (grandparent) or ACCS (transition to work), an application is needed as well as the claim for CCS.
The Secretary will determine whether an individual is eligible for CCS for a child. If the individual is eligible, weekly determinations are then made about how much (if any) CCS or ACCS is to be paid each week.
Weekly payments are mostly made via the child care service provider, who will pass them on to the individual (usually as a fee reduction).
Broadly, recipients of CCS and ACCS have responsibilities to keep the Secretary informed about changes in their circumstances that might affect their eligibility for or entitlement to CCS or ACCS, and to respond to requests for information.
An approved provider who is eligible for ACCS (child wellbeing) for a child does not need to make a claim, but does need to make a declaration in order to become entitled to be paid the ACCS. Providers also have responsibilities to keep the Secretary informed and respond to requests for information.
It is also possible for individuals to claim CCS or ACCS in substitution for an individual who has died. If an individual is entitled to be paid such an amount, it is paid directly to the individual.
Note:
For the constitutional basis of the provisions of this Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers), see section 85AB of the Family Assistance Act.
History
S 67AA inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67AB
Forms of CCS and ACCS
67AB(1)
An individual may, in accordance with this Part, become entitled to be paid:
(a)
CCS by fee reduction;
(b)
ACCS by fee reduction;
(c)
CCS or ACCS in substitution for an individual who has died.
67AB(2)
An approved provider may, in accordance with this Part, become entitled to be paid ACCS (child wellbeing).
History
S 67AB inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 2 - Making claims
History
Div 2 inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BA
Simplified outline of this Division
Claims for CCS must include particular information and be made in a particular way. Among other things, information is needed about bank account details and tax file numbers.
A claim that does not meet the requirements is taken not to have been made.
History
S 67BA inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BB
67BB
Need for a claim
The only way that an individual (other than an approved provider) can become entitled to be paid CCS or ACCS is to make a claim in respect of a child for CCS in accordance with this Division.
Note 1:
As well as making a claim for CCS, an individual who wants to be paid ACCS (grandparent) or ACCS (transition to work) must apply for that kind of ACCS. See paragraphs 67CD(4)(a) and (6)(a).
Note 2:
An approved provider does not have to make a claim to be entitled to be paid ACCS (child wellbeing), but does need to make a declaration. See paragraph 67CH(1)(c).
History
S 67BB inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BC
67BC
Who can claim
The only persons who can make a claim for CCS in accordance with this Division are individuals.
History
S 67BC inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BD
67BD
Kinds of claims
An individual may make a claim in respect of a child for CCS:
(a)
by fee reduction; or
(b)
in substitution for an individual who has died.
History
S 67BD inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BE
When a claim is effective
67BE(1)
A claim made by an individual in respect of a child for CCS is effective if:
(a)
the claim is made in a form and manner approved by the Secretary; and
(b)
the claim contains the information, and is accompanied by the documents, required by the Secretary; and
(c)
the claim contains details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid; and
(d)
unless paragraph (e) applies - the claim contains the tax file number of each TFN claim person; and
(e)
if the claim is for CCS in substitution for an individual who has died - the claim contains the tax file number of each TFN substitution person; and
(f)
if the claim is for CCS in substitution for an individual who has died - the claim is made before the end of the income year after the income year in which the individual died; and
(g)
any other requirements in the Secretary's rules are met; and
(h)
no other provision in this Division prevents the claim being effective.
History
S 67BE(1) amended by No 125 of 2019, s 3 and Sch 1 item 35, by substituting para (c) to (e), applicable in relation to: (a) claims made on or after 16 December 2019; and (b) claims made before 16 December 2019 if, immediately before 16 December 2019, a determination has not been made by the Secretary under section 67CC of the A New Tax System (Family Assistance) (Administration) Act 1999 in relation to the claim. Para (c) to (e) formerly read:
(c)
the bank account requirements in section 67BG are met for the purposes of the claim; and
(d)
unless paragraph (e) applies - the tax file number requirements in section 67BH are met for the purposes of the claim; and
(e)
if the claim is for CCS in substitution for an individual who has died - the tax file number requirements in section 67BI are met for the purposes of the claim; and
67BE(2)
The Secretary may make a written determination that paragraph (1)(d) does not apply in relation to a claim for 28 days after the day the determination is made, if the Secretary is satisfied that it is appropriate in the circumstances to do so.
History
S 67BE(2) inserted by No 125 of 2019, s 3 and Sch 1 item 35A, effective 16 December 2019.
67BE(3)
If:
(a)
a determination under subsection (2) is made in relation to a claim; and
(b)
the Secretary is satisfied that it is appropriate in the circumstances that paragraph (1)(d) not apply in relation to the claim indefinitely;
the Secretary may, before the end of the 28 days after the day the determination is made, make a further written determination accordingly.
History
S 67BE(3) inserted by No 125 of 2019, s 3 and Sch 1 item 35A, effective 16 December 2019.
History
S 67BE amended by No 125 of 2019, s 3 and Sch 1 item 34A, by inserting "(1)" before "A claim", effective 16 December 2019.
S 67BE inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BF
Claims that are taken not to have been made
67BF(1)
A claim that is not effective is taken not to have been made.
67BF(2)
A claim is taken not to have been made by an individual if:
(a)
the Secretary has made a determination under subsection
67BE(2) in relation to the claim; and
(b)
at the end of the 28 days after the day the determination was made:
(i)
if the Secretary has made a further determination under subsection 67BE(3) in relation to the claim - the individual has not provided the individual's tax file number; or
(ii)
if the Secretary has not made a further determination under subsection 67BE(3) in relation to the claim - the individual has not provided the tax file number of each TFN claim person.
History
S 67BF(2) substituted by No 125 of 2019, s 3 and Sch 1 item 36, applicable in relation to: (a) claims made on or after 16 December 2019; and (b) claims made before 16 December 2019 if, immediately before 16 December 2019, a determination has not been made by the Secretary under section 67CC of the A New Tax System (Family Assistance) (Administration) Act 1999 in relation to the claim. S 67BF(2) formerly read:
67BF(2)
A claim is taken not to have been made if:
(a)
in the claim, the individual makes a statement referred to in subparagraph 67BG(1)(a)(ii) (about providing bank account details); and
(b)
at the end of the 28 days after the day the claim is made, the individual has not provided the details; and
(c)
the Secretary has not exempted the individual under paragraph 67BG(1)(b).
67BF(3)
The Secretary's rules may prescribe other circumstances in which a claim is taken not to have been made.
History
S 67BF(3) substituted by No 125 of 2019, s 3 and Sch 1 item 36, applicable in relation to: (a) claims made on or after 16 December 2019; and (b) claims made before 16 December 2019 if, immediately before 16 December 2019, a determination has not been made by the Secretary under section 67CC of the A New Tax System (Family Assistance) (Administration) Act 1999 in relation to the claim. S 67BF(3) formerly read:
67BF(3)
A claim is taken not to have been made if:
(a)
in the claim or in a document accompanying it, an individual makes a statement referred to in paragraph 67BH(1)(b) or (c) or 67BI(1)(b) or (c) (about providing tax file number details); and
(b)
at the end of the 28 days after the claim is made, the Commissioner of Taxation has not told the Secretary what the individual's tax file number is; and
(c)
there is no determination in effect under paragraph 67BH(3)(b) or 67BI(3)(b) exempting the individual.
History
S 67BF inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BG
67BG
Bank account requirements
(Repealed by No 125 of 2019)
History
S 67BG repealed by No 125 of 2019, s 3 and Sch 1 item 37, applicable in relation to: (a) claims made on or after 16 December 2019; and (b) claims made before 16 December 2019 if, immediately before 16 December 2019, a determination has not been made by the Secretary under section 67CC of the A New Tax System (Family Assistance) (Administration) Act 1999 in relation to the claim. S 67BG formerly read:
SECTION 67BG Bank account requirements
For purposes of claim
67BG(1)
The bank account requirements are met for the purposes of a claim made by an individual if:
(a)
in the claim, the individual:
(i)
provides details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid; or
(ii)
makes a statement that he or she will provide details of such a bank account within 28 days after the claim is made; or
(b)
the Secretary is satisfied that it is appropriate to exempt the individual from the requirement in paragraph (a).
For purposes of determination
67BG(2)
The bank account requirements are met for the purposes of a determination under Division 3 for an individual if:
(a)
the Secretary has the details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid; or
(b)
paragraph (1)(b) applies.
S 67BG inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BH
67BH
Tax file number requirements - CCS by fee reduction
(Repealed by No 125 of 2019)
History
S 67BH repealed by No 125 of 2019, s 3 and Sch 1 item 37, applicable in relation to: (a) claims made on or after 16 December 2019; and (b) claims made before 16 December 2019 if, immediately before 16 December 2019, a determination has not been made by the Secretary under section 67CC of the A New Tax System (Family Assistance) (Administration) Act 1999 in relation to the claim. S 67BH formerly read:
SECTION 67BH Tax file number requirements - CCS by fee reduction
For purposes of claim
67BH(1)
The tax file number requirements in this section are met for the purposes of a claim if one of the following statements is made in relation to each TFN claim person:
(a)
a statement, by the claimant, of the TFN claim person's tax file number;
(b)
a statement, by a TFN claim person, that the TFN claim person:
(i)
has a tax file number and has asked the Commissioner of Taxation to tell the person what it is; and
(ii)
authorises the Commissioner of Taxation to tell the Secretary whether the person has a tax file number and, if the person has, what it is;
(c)
a statement, by a TFN claim person, that the TFN claim person:
(i)
has an application for a tax file number pending; and
(ii)
authorises the Commissioner of Taxation to tell the Secretary the outcome of the application (including if the person withdraws the application).
67BH(2)
A statement referred to in subsection (1) must be made:
(a)
if made by the claimant - in the claim; and
(b)
otherwise - in a document accompanying the claim in a form approved by the Secretary.
67BH(3)
Subsection (1) does not apply in relation to a TFN claim person if the Secretary:
(a)
is satisfied that the TFN claim person is or was the claimant's partner and that the claimant can obtain from the person neither the person's tax file number nor a statement referred to in paragraph (1)(b) or (c); and
(b)
makes a written determination to that effect.
67BH(4)
A determination made under paragraph (3)(b) is not a legislative instrument.
For purposes of determination
67BH(5)
The tax file number requirements in this section are met for the purposes of a determination under Division 3 for an individual if one of the following applies in relation to all TFN determination persons:
(a)
the Secretary knows the TFN determination person's tax file number;
(b)
a determination made under paragraph (3)(b) is in effect in relation to the TFN determination person.
S 67BH inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67BI
67BI
Tax file number requirements - CCS in substitution for an individual who has died
(Repealed by No 125 of 2019)
History
S 67BI repealed by No 125 of 2019, s 3 and Sch 1 item 37, applicable in relation to: (a) claims made on or after 16 December 2019; and (b) claims made before 16 December 2019 if, immediately before 16 December 2019, a determination has not been made by the Secretary under section 67CC of the A New Tax System (Family Assistance) (Administration) Act 1999 in relation to the claim. S 67BI formerly read:
SECTION 67BI Tax file number requirements - CCS in substitution for an individual who has died
For purposes of claim
67BI(1)
The tax file number requirements in this section are met for the purposes of a claim if one of the following statements is made in relation to each TFN substitution person:
(a)
a statement, by the claimant, of a TFN substitution person's tax file number;
(b)
a statement, by a TFN substitution person who was the deceased individual's partner, that the person:
(i)
has a tax file number and has asked the Commissioner of Taxation to tell the person what it is; and
(ii)
authorises the Commissioner of Taxation to tell the Secretary whether the person has a tax file number and, if the person has, what it is;
(c)
a statement, by a TFN substitution person who was the deceased individual's partner, that the person:
(i)
has an application for a tax file number pending; and
(ii)
authorises the Commissioner of Taxation to tell the Secretary the outcome of the application (including if the person withdraws the application).
67BI(2)
A statement referred to in subsection (1) must be made:
(a)
if made by the claimant - in the claim; and
(b)
otherwise - in a document accompanying the claim in a form approved by the Secretary.
67BI(3)
Subsection (1) does not apply in relation to a TFN substitution person if the Secretary:
(a)
is satisfied that the claimant does not know the TFN substitution person's tax file number and cannot obtain a statement referred to in paragraph (1)(b) or (c); and
(b)
makes a written determination to that effect.
67BI(4)
A determination made under paragraph (3)(b) is not a legislative instrument.
For purposes of determination
67BI(5)
The tax file number requirements in this section are met for the purposes of a determination under Division 3 for an individual if one of the following applies in relation to all TFN substitution persons:
(a)
the Secretary knows the TFN substitution person's tax file number;
(b)
a determination made under paragraph (3)(b) is in effect in relation to the TFN substitution person.
S 67BI inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 3 - Determinations
History
Div 3 inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdivision A - Entitlement to be paid CCS or ACCS
History
Subdiv A inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CA
Simplified outline of this Division
An individual or an approved provider who is eligible for CCS or ACCS is only entitled to be paid CCS or ACCS if the Secretary has made a determination to thateffect.
For individuals who claim in respect of a child for CCS by fee reduction, the Secretary will make an initial determination of the individual's eligibility for CCS for the child. Once this is in effect, determinations are made, for each week, about the individual's entitlement to CCS or ACCS that week.
To be entitled to be paid for a week, the individual must:
(a) be eligible for CCS or ACCS (generally); and
(b) meet some additional entitlement conditions.
The additional entitlement conditions mean that not everyone who is eligible for CCS or ACCS will be entitled to be paid for every week. In particular, individuals need to have met the CCS reconciliation conditions for previous income years for which they were entitled to CCS (usually these conditions are met by obtaining a timely tax assessment) and to have kept the Secretary up to date about changes affecting eligibility or entitlement.
Even if the Secretary determines that an individual is entitled to be paid CCS for a week, the individual might later have to repay the CCS if the individual does not meet the CCS reconciliation conditions. (This does not apply to ACCS.)
Determinations are also made each week in relation to an approved provider's entitlement to be paid ACCS (child wellbeing) for a child.
One-off determinations are made in relation to an individual's entitlement to be paid CCS or ACCS in substitution for an individual who has died.
History
S 67CA amended by No 26 of 2021, s 3 and Sch 1 item 40, by omitting "in time" after "CCS reconciliation conditions", effective 27 March 2021 and applicable in relation to the 2018-19 income year and each later income year. For application provisions, see note under s 205C.
S 67CA inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CB
Entitlement to be paid CCS or ACCS
67CB(1)
An individual or an approved provider is only entitled to be paid CCS or ACCS if the Secretary has made a determination to that effect under this Division.
67CB(2)
The Secretary is to make determinations under this Division on the basis of the information available to the Secretary at the time of making the determination.
Note:
Part 5 provides for review of determinations, including in relation to the use of information in circumstances where information becomes available after a determination is made.
67CB(3)
At any time, an individual or an approved provider is entitled to be paid, in accordance with this Part, the amount of CCS or ACCS (if any) for a week specified in whichever child care decision is in effect at the time for the week.
67CB(4)
However, an individual who is entitled to be paid CCS for sessions of care provided to a child in a week:
(a)
ceases to be entitled to be paid that CCS, and is taken never to have been entitled to be paid that CCS, if the individual has not met the CCS reconciliation conditions, for the income year in which the CCS fortnight that includes the week starts, by the first deadline for the income year; and
(b)
cannot again become entitled to be paid that CCS before the individual meets the CCS reconciliation conditions for the income year.
Note 1:
See section 105E for the determinations the Secretary is required to make in these circumstances.
Note 2:
CCS payments for an income year are capped if the CCS reconciliation conditions for the income year are met after the second deadline for the income year (see subsection 105D(2A)).
History
S 67CB(4) amended by No 26 of 2021, s 3 and Sch 1 items 41-43, by substituting para (b), inserting "1" in the note and inserting note 2, effective 27 March 2021 and applicable in relation to the 2018-19 income year and each later income year. For application provisions, see note under s 205C. Para (b) formerly read:
(b)
cannot again become entitled to be paid that CCS if the individual does not meet the CCS reconciliation conditions for the income year by the second deadline for the income year.
67CB(5)
Subsection (4) applies despite any other provision of this Act or the Family Assistance Act or any determination in effect to the contrary.
History
S 67CB inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdivision B - Determinations for individuals claiming CCS by fee reduction
History
Subdiv B inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CC
Determination of individual's eligibility for CCS by fee reduction
Determination on effective claim
67CC(1)
If an individual makes an effective claim in respect of a child for CCS by fee reduction, the Secretary must determine:
(a)
if, when making the determination, the Secretary is satisfied that the requirements in subparagraphs
85BA(1)(a)(i) to
(iv) of the Family Assistance Act are met in relation to the claim - that the individual is eligible for CCS by fee reduction for the child; and
(b)
if not so satisfied - that the individual is not eligible for CCS by fee reduction for the child.
Cessation of eligibility
67CC(2)
The Secretary may determine that an individual for whom a determination under paragraph
(1)(a) is in effect in relation to a child is not eligible for CCS by fee reduction for the child, if any of the following apply:
(a)
the Secretary is satisfied that the individual has ceased to be eligible, and is not reasonably likely to become eligible again, for CCS by fee reduction for sessions of care provided to the child;
(b)
the Secretary has made determinations under subsection
67CD(8) in relation to the individual (otherwise than because of subsection
105E(2)) for:
(i)
unless subparagraph (ii) applies - at least 52 consecutive weeks; or
(ii)
if the Minister's rules prescribe a different number of consecutive weeks for the purposes of this subparagraph - at least that number of consecutive weeks;
(c)
the child ceased to meet the immunisation requirements in section
6 of the Family Assistance Act more than 63 days ago;
(d)
a report under section
204B for a week, indicating that a session of care in relation to which the individual is the claimant has been provided to the child in the week, has not been given to the Secretary in relation to:
(i)
unless subparagraph (ii) applies - at least 26 consecutive weeks; or
(ii)
if the Minister's rules prescribe a different number of consecutive weeks for the purposes of this subparagraph - at least that number of consecutive weeks;
(e)
the Secretary is satisfied that the individual:
(i)
does not intend that the child be enrolled for care by a child care service; or
(ii)
does not intend that the child attend any sessions of care provided by a child care service.
History
S 67CC(2) amended by No 66 of 2022, s 3 and Sch 1 item 23, by inserting "in relation to which the individual is the claimant" in para (d), effective 30 November 2022 and applicable in relation to a week for which a report described in that paragraph has not been given to the Secretary, whether the week started before, on or after 30 November 2022.
S 67CC(2) amended by No 86 of 2021, s 3 and Sch 2 items 10 and 11, by substituting para (b) and inserting para (d) and (e), effective 7 March 2022. No 86 of 2021, s 3 and Sch 2 item 12 contain the following application provisions:
12 Application provisions
(1)
The repeal and substitution of paragraph 67CC(2)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Part applies in relation to determinations under subsection 67CC(2) of that Act made on or after the commencement of this item that relate to:
(a)
determinations under paragraph 67CC(1)(a) of that Act made before, on or after the commencement of this item; and
(b)
determinations under subsection 67CD(8) of that Act made before, on or after the commencement of this item.
(2)
Paragraph 67CC(2)(d) of the A New Tax System (Family Assistance) (Administration) Act 1999, as added by this Part, applies in relation to determinations under subsection 67CC(2) of that Act made on or after the commencement of this item that relate to:
(a)
determinations under paragraph 67CC(1)(a) of that Act made before, on or after the commencement of this item; and
(b)
a period under subparagraph 67CC(2)(d)(i) or (ii) of that Act (as added by this Part) that starts before, on or after the commencement of this item.
(3)
Paragraph 67CC(2)(e) of the A New Tax System (Family Assistance) (Administration) Act 1999, as added by this Part, applies in relation to determinations under subsection 67CC(2) of that Act made on or after the commencement of this item that relate to determinations under paragraph 67CC(1)(a) of that Act made before, on or after the commencement of this item.
Para (b) formerly read:
(b)
the Secretary has made determinations under subsection 67CD(8) (the individual is not entitled to be paid CCS or ACCS for sessions of care provided to the child) for at least 52 consecutive weeks (otherwise than because of subsection 105E(2));
Cessation of eligibility on request
67CC(3)
The Secretary may determine that an individual for whom a determination under paragraph
(1)(a) is in effect in relation to a child is not eligible for CCS by fee reduction for the child, if the individual requests the Secretary, in a form and manner approved by the Secretary, to do so. The Secretary may make the determination despite the individual being eligible.
Date of effect
67CC(4)
A determination made under paragraph
(1)(a):
(a)
takes effect on the day specified in the determination, which must be the first day for which the Secretary is satisfied that the requirements in subparagraphs
85BA(1)(a)(i) to
(iv) of the Family Assistance Act are met that is also:
(i)
the first Monday of a CCS fortnight; and
(ii)
not more than 28 days before the day the claim was made; and
(b)
continues in effect until any of the following happens:
(i)
it is superseded by a determination made under subsection (2) or (3);
(ii)
it is set aside on review;
(iii)
a day or event (if any) specified in the determination as the day or event on which the determination ceases to have effect;
(iv)
the individual dies.
67CC(5)
A determination made under paragraph
(1)(b) has effect from the day the determination is made.
67CC(6)
A determination made under subsection
(2) or
(3) has effect from the day specified in the determination (which may be earlier than the day the determination is made).
History
S 67CC inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CD
Determination of individual's entitlement to be paid CCS or ACCS
Preconditions for making determinations
67CD(1)
The Secretary may make a determination under this section for an individual for a week, in relation to sessions of care provided to a child by an approved child care service, only if:
(a)
a determination that the individual is eligible for CCS by fee reduction for the child is in effect under paragraph
67CC(1)(a) in relation to any day in the week; and
(b)
the provider of the service has given the Secretary a report under section
204B (requirement to report about children for whom care is provided) in relation to the child for the week, including such a report as varied, substituted or corrected under subsection
204B(6) or section
204C; and
(c)-(d)
(Repealed by No 125 of 2019)
(e)
if the Secretary gives the individual a notice under subsection (11) in relation to the child's enrolment for those sessions - the individual has complied with the notice.
History
S 67CD(1) amended by No 125 of 2019, s 3 and Sch 1 items 38 and 39, by repealing para (c), (d) and the note, effective 16 December 2019. Para (c), (d) and the note formerly read:
(c)
if the individual's claim for CCS was made less than 28 days ago - the bank account requirements in section 67BG are met for the purposes of a determination under this Division for the individual; and
(d)
if the individual's claim for CCS was made less than 28 days ago - the tax file number requirements in section 67BH are met for the purposes of a determination under this Division for the individual; and
Note:
For paragraph (b), the report must be given in accordance with subsection 204B(2), and is not given in accordance with that subsection unless the required information is accurate and complete (see subsection 204B(3)).
67CD(1A)
For the purposes of paragraph (1)(b), the provider of the service is taken to have given the Secretary a report under section
204B in relation to the child for the week even if the report is not given by the day required under paragraph
204B(2)(d).
Note:
The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).
History
S 67CD(1A) inserted by No 125 of 2019, s 3 and Sch 1 item 40, effective 16 December 2019.
Entitlement to be paid CCS
67CD(2)
If the Secretary is satisfied that:
(a)
the individual is eligible for CCS under section
85BA of the Family Assistance Act for one or more of the sessions of care provided by the service to the child in the week, or would be eligible except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and
(b)
the individual meets the information requirements in subsection (10) for the week; and
(c)
none of subsections (3), (4) and (6) apply in relation to the sessions of care; and
(d)
the amount of CCS to which the individual will become entitled for the sessions of care is more than nil;
the Secretary must determine:
(e)
that the individual is entitled to be paid CCS for the sessions of care referred to in paragraph (a); and
(f)
the amount of CCS the individual is entitled to be paid.
Note:
See subsection (1) for preconditions for making determinations under this subsection.
Entitlement to be paid ACCS (child wellbeing) or ACCS (temporary financial hardship)
67CD(3)
If the Secretary is satisfied that:
(a)
the individual is eligible for ACCS under section
85CA or
85CG of the Family Assistance Act for one or more sessions of care provided by the service to the child in the week, or would be except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and
(b)
there is no determination in effect under subsection
67CH(2) that a provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and
(c)
the individual meets the information requirements in subsection (10) for the week;
the Secretary must determine:
(d)
that the individual is entitled to be paid ACCS (child wellbeing) or ACCS (temporary financial hardship) (as applicable) for the sessions of care referred to in paragraph (a); and
(e)
the amount of ACCS the individual is entitled to be paid.
Note:
See subsection (1) for preconditions for making determinations under this subsection.
Entitlement to be paid ACCS (grandparent)
67CD(4)
If the Secretary is satisfied that:
(a)
the individual has applied to the Secretary, in a form and manner approved by the Secretary, and within any time period approved by the Secretary, for ACCS (grandparent) in relation to the week; and
(b)
the application contains the information, and is accompanied by the documents, required by the Secretary; and
(c)
the individual is eligible for ACCS under section
85CJ of the Family Assistance Act for one or more sessions of care provided by the service to the child in the week, or would be except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and
(d)
there is no determination in effect under subsection
67CH(2) that a provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and
(e)
the individual meets the information requirements in subsection (10) for the week;
the Secretary must determine:
(f)
that the individual is entitled to be paid ACCS (grandparent) for the sessions of care referred to in paragraph (c); and
(g)
the amount of ACCS (grandparent) the individual is entitled to be paid.
Note:
See subsection (1) for preconditions for making determinations under this subsection.
67CD(5)
A determination cannot be made under subsection (4) for an individual for a week if the CCS fortnight that includes the week starts more than 28 days before the individual made the application referred to in paragraph (4)(a).
Entitlement to be paid ACCS (transition to work)
67CD(6)
If the Secretary is satisfied that:
(a)
the individual has applied to the Secretary, in a form and manner approved by the Secretary, and within any time period approved by the Secretary, for ACCS (transition to work) in relation to the week; and
(b)
the application contains the information, and is accompanied by the documents, required by the Secretary; and
(c)
the individual is eligible for ACCS under section
85CK of the Family Assistance Act for one or more sessions of care provided by the service to the child in the week, or would be except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and
(d)
there is no determination in effect under subsection
67CH(2) that a provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and
(e)
the individual meets the information requirements in subsection (10) for the week;
the Secretary must determine:
(f)
that the individual is entitled to be paid ACCS (transition to work) for the sessions of care referred to in paragraph (b); and
(g)
the amount of ACCS (transition to work) the individual is entitled to be paid.
Note:
See subsection (1) for preconditions for making determinations under this subsection.
67CD(7)
A determination cannot be made under subsection (6) for an individual for a week if the CCS fortnight that includes the week starts before the individual made the application referred to in paragraph (6)(a).
No entitlement to be paid CCS or ACCS
67CD(8)
If the Secretary is not satisfied as referred to in subsection (2), (3), (4) or (6), the Secretary must determine that the individual is not entitled to be paid CCS or ACCS for the sessions of care provided to the child by the service in the week.
Immunisation grace period
67CD(9)
A session of care is provided on a day in an
immunisation grace period
for a child if:
(a)
on the day, the child does not meet the immunisation requirements in section
6 of the Family Assistance Act; and
(b)
the day is no more than 63 days after the day the child ceased to meet the immunisation requirements.
Meeting the information requirements
67CD(10)
An individual
meets the information requirements
for a week if, on a day in the week:
(a)
either of the following applies:
(i)
the Secretary has the details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid;
(ii)
the Secretary made a request of the individual under section 67FE no more than 28 days ago; and
(b)
any of the following applies:
(i)
the Secretary has the tax file number of each TFN determination person;
(ii)
the Secretary made a determination under subsection 67BE(2) or (3) in relation to the individual's claim no more than 28 days ago;
(iii)
the Secretary made a request of the individual under section 67FG no more than 28 days ago;
(iv)
the Secretary has the tax file number of the individual and is satisfied that it is unreasonable in the circumstances for the individual to provide the tax file number of each TFN determination person other than the individual;
(c)
if, before the week, a period for giving information or producing a document required under Division
1 of Part
6 had ended without the individual giving the information or producing the document - the individual has given the information or produced the document; and
(d)
if a determination was made for the individual under section
67CD for a week in the income year (the
relevant income year
) that is 2 income years before the income year in which the CCS fortnight that includes the week starts - the individual has met the CCS reconciliation conditions for the relevant income year.
[
CCH Note:
S 67CD(10) will be amended by No 26 of 2021, s 3 and Sch 1 item 44, by substituting para (d), effective 1 July 2021. Para (d) will read:
(d)
if a determination was made for the individual under section 67CD for a week in a previous income year and the first deadline for the previous income year has passed - the individual has met the CCS reconciliation conditions for that previous income year.
]
History
S 67CD(10) amended by No 125 of 2019, s 3 and Sch 1 item 41, by substituting para (a) and (b), effective 16 December 2019. Para (a) and (b) formerly read:
(a)
either of the following apply:
(i)
the bank account requirements in section 67BG are met for the purposes of a determination under this Division for the individual;
(ii)
the Secretary made a request of the individual under section 67FE no more than 28 days ago; and
(b)
any of the following apply:
(i)
the tax file number requirements in section 67BH are met for the purposes of a determination under this Division for the individual;
(ii)
the Secretary made a request of the individual under section 67FG no more than 28 days ago;
(iii)
the Secretary made a request of the individual under section 67FG no more than 56 days ago and a statement of the kind referred to in paragraph 67BH(1)(b) or (c) was provided in response within 28 days of the request;
Notice requiring information about enrolments
67CD(11)
For paragraph (1)(e), the Secretary may, by written notice, require an individual to give to the Secretary, in a form and manner approved by the Secretary, information stated in the notice in relation to the child's enrolment for sessions of care provided, or to be provided, by an approved child care service.
History
S 67CD inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CE
Notice of determinations under this Subdivision
Notice to individual
67CE(1)
The Secretary must give written notice to an individual for whom any of the following determinations are made, no later than 7 days after making the determination:
(a)
a determination under section
67CC about the individual's eligibility for CCS for a child;
(b)
a determination under section
67CD about the individual's entitlement to be paid CCS or ACCS for a week, if the determination is different from a determination made under that section for the individual for the previous week for any of the following reasons:
(i)
a change in the individual's applicable percentage;
(ii)
a change in the individual's activity test result.
(iii)
(Repealed by No 86 of 2021)
History
S 67CE(1) amended by No 86 of 2021, s 3 and Sch 1 items 17 and 18, by substituting "test result." for "test result;" in para (b)(ii) and repealing para (b)(iii), effective 10 December 2021. No 86 of 2021, s 3 and Sch 1 item 20 contains the following saving provision:
20 Saving provision - income years ending before commencement
20
Despite the repeal of subparagraph 67CE(1)(b)(iii), and the amendment of subsection 105E(6), of the A New Tax System (Family Assistance) (Administration) Act 1999 by this Schedule, those provisions, as in force immediately before the commencement of this item, continue to apply, on and after that commencement, in relation to income years ending before that commencement.
Para (b)(iii) formerly read:
(iii)
the annual cap that applies to the individual being reached for a child for an income year.
67CE(2)
At least once every CCS quarter, the Secretary must give written notice to an individual for whom determinations are made under section
67CD for weeks starting in the CCS quarter.
67CE(3)
A
CCS quarter
is the period of 3 months starting on the first Monday of the first CCS fortnight each January, April, July and October.
Notice to providers
67CE(4)
The Secretary must give written notice of a determination made under section
67CD to the provider of the child care service that provided the sessions of care to which the determination relates, as soon as practicable after making the determination.
67CE(5)
A notice under subsection
(4) may be given to a provider by making the notice available to the provider using an electronic interface.
67CE(6)
If the Secretary has decided to pay the fee reduction amount in relation to a determination under section
67CD directly to the individual under subsection
67EC(2), the notice under subsection
(4) of this section must include a statement to that effect.
History
S 67CE inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdivision C - Determinations for individuals claiming CCS or ACCS in substitution for individual who has died
History
Subdiv C inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CF
Determination of individual's entitlement to be paid CCS or ACCS in substitution for individual who has died
Preconditions for making determinations
67CF(1)
The Secretary may make a determination under this section for an individual (the
substitute
) only if:
(a)
the substitute has made an effective claim in respect of a child for CCS in substitution for an individual who has died; and
(b)
the provider of a child care service that provided sessions of care to the child in a week to which the claim relates has given the Secretary a report under section
204B (requirement to report about children for whom care is provided) in relation to the child for each week in which such sessions of care were provided, including such a report as varied, substituted or corrected under subsection
204B(6) or section
204C; and
(c)
either of the following applies:
(i)
the Secretary has the details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid;
(ii)
the Secretary made a request of the individual under section 67FE no more than 28 days ago.
(d)
(Repealed by No 125 of 2019)
History
S 67CF(1) amended by No 125 of 2019, s 3 and Sch 1 items 42 and 43, by substituting para (c) for para (c) and (d) and repealing the note, effective 16 December 2019. Para (c), (d) and the note formerly read:
(c)
the bank account requirements in section 67BG are met for the purposes of a determination under this Division; and
(d)
the tax file number requirements in section 67BI are met for the purposes of a determination under this Division.
Note:
For paragraph (b), the report must be given in accordance with subsection 204B(2), and is not given in accordance with that subsection unless the required information is accurate and complete (see subsection 204B(3)).
67CF(1A)
For the purposes of paragraph (1)(b), the provider of the child care service is taken to have given the Secretary a report under section
204B in relation to the child for a week even if the report is not given by the day required under paragraph
204B(2)(d).
Note:
The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).
History
S 67CF(1A) inserted by No 125 of 2019, s 3 and Sch 1 item 44, effective 16 December 2019.
Individual entitled to be paid CCS or ACCS in substitution
67CF(2)
If the Secretary is satisfied that the substitute is eligible for an amount of CCS or ACCS under section
85DA of the Family Assistance Act, the Secretary must determine in writing:
(a)
that the substitute is entitled to be paidCCS or ACCS in substitution for the individual who has died; and
(b)
the amount of CCS or ACCS that the substitute is entitled to be paid.
Individual not entitled to be paid CCS or ACCS in substitution
67CF(3)
If the Secretary is not satisfied as referred to in subsection (2), the Secretary must determine that the substitute is not entitled to be paid CCS or ACCS in substitution for the individual who has died.
History
S 67CF inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CG
67CG
Notice of determinations under this Subdivision
The Secretary must give written notice to an individual for whom a determination is made under section
67CF about the individual's entitlement to be paid CCS or ACCS in substitution for an individual who has died, no later than 7 days after making the determination.
History
S 67CG inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdivision D - Determinations for approved providers
History
Subdiv D inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CH
Determination of provider's entitlement to be paid ACCS (child wellbeing)
Preconditions for making determinations
67CH(1)
The Secretary must make a determination under this section for an approved provider for a week, in relation to sessions of care provided by an approved child care service of the provider to a child, if:
(a)
either of the following is in effect in relation to the child for the week:
(i)
a certificate given by the provider under section 85CB of the Family Assistance Act;
(ii)
a determination made by the Secretary under section 85CE of the Family Assistance Act; and
(b)
the provider has given the Secretary a report forthe week under section
204B (requirement to report about children for whom care is provided) in relation to the child, including such a report as varied, substituted or corrected under subsection
204B(6) or section
204C; and
(c)
the provider has given the Secretary a declaration, in a form approved by the Secretary:
(i)
for a certificate or determination in effect because of subparagraph 85CA(2)(b)(i) of the Family Assistance Act - that the provider has made reasonable endeavours to identify an individual who is eligible for CCS (child wellbeing) for the sessions of care and has not been able to identify anyone; or
(ii)
for a certificate or determination in effect because of subparagraph 85CA(2)(b)(ii) of the Family Assistance Act - that the child is in a class prescribed for the purposes of that subparagraph.
History
S 67CH(1) amended by No 84 of 2020, s 3 and Sch 1 item 6, by substituting para (c), effective 1 July 2021. Para (c) formerly read:
(c)
the provider has given the Secretary a declaration, in a form approved by the Secretary, that the provider has made reasonable endeavours to identify an individual who is eligible for ACCS (child wellbeing) for the sessions of care and has not been able to identify anyone.
S 67CH(1) amended by No 125 of 2019, s 3 and Sch 1 item 45, by repealing the note, effective 16 December 2019. The note formerly read:
Note:
For paragraph (b), the report must be given in accordance with subsection 204B(2), and is not given in accordance with that subsection unless the required information is accurate and complete (see subsection 204B(3)).
67CH(1A)
For the purposes of paragraph
(1)(b), the provider is taken to have given the Secretary a report for the week under section
204B in relation to the child even if the report is not given by the day required under paragraph
204B(2)(d).
Note:
The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).
History
S 67CH(1A) inserted by No 125 of 2019, s 3 and Sch 1 item 46, effective 16 December 2019.
Provider entitled to be paid ACCS (child wellbeing)
67CH(2)
If the Secretary is satisfied that the provider is eligible for ACCS under subsection
85CA(2) of the
Family Assistance Act for sessions of care provided to the child in the week, the Secretary must determine in writing:
(a)
that the provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and
(b)
the amount of ACCS (child wellbeing) that the provider is entitled to be paid.
Provider not entitled to be paid ACCS (child wellbeing)
67CH(3)
If the Secretary is not satisfied as referred to in subsection
(2), the Secretary must determine in writing that the provider is not entitled to be paid ACCS (child wellbeing) for those sessions of care.
History
S 67CH inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67CI
Notice of determinations under this Subdivision
67CI(1)
The Secretary must give written notice of a determination made under this Subdivision to the approved provider for whom the determination was made as soon as practicable.
67CI(2)
A notice under subsection (1) may be given to an approved provider by making the notice available to the provider using an electronic interface.
History
S 67CI inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 4 - Estimates etc. of adjusted taxable income
History
Div 4 inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67DA
Simplified outline of this Division
To work out the amount of CCS an individual is entitled to be paid for a week, it is necessary to know the individual's adjusted taxable income for the income year the week relates to.
The final amount of the individual's income for the income year usually cannot be known until after the income year has ended.
In the meantime, the Secretary is able to rely on an estimate provided by the individual, or on an indexed estimate or the indexed actual income of an earlier income year.
After the individual meets the CCS reconciliation conditions, any underpayment to the individual will generally be topped up and any overpayments become debts due to the Commonwealth.
History
S 67DA inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67DB
Determinations when adjusted taxable income is not known
Determinations under section 67CD
67DB(1)
This section applies if, at the time of making a determination under section
67CD for a week in a CCS fortnight, for an individual who is not eligible for any kind of ACCS, the individual has not met the CCS reconciliation conditions.
Estimate
67DB(2)
The Secretary may make the determination under section
67CD on the basis of the most recent of whichever of the following estimates (if any) exists on the first Monday of the CCS fortnight:
(a)
a reasonable estimate given to the Secretary by the individual;
(b)
the indexed estimate stated in a notice given to the individual under section
67DC and with a start day that has arrived or passed;
(c)
the indexed actual income stated in a notice given to the individual under section
67DD and with a start day that has arrived or passed.
No estimate
67DB(3)
If none of the estimates referred to in subsection (2) exists on the first Monday of the CCS fortnight, the Secretary must determine under subsection
67CD(8) that the individual is not entitled to be paid CCS or ACCS.
History
S 67DB inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67DC
Indexed estimates
67DC(1)
The Secretary may calculate an indexed estimate for an individual under subsection (5), with a start day chosen by the Secretary, if:
(a)
the individual, or the individual's partner, is a claimant for CCS by fee reduction; and
(b)
a determination is in effect under paragraph
67CC(1)(a) that the claimant is eligible for CCS for a child; and
(c)
information about the adjusted taxable income of the individual needed to make a determination under Division
3 for the claimant is not known; and
(d)
the claimant has given the Secretary an estimate of the amount needed that the Secretary considers to be reasonable.
67DC(2)
If the Secretary calculates an indexed estimate for the individual, the Secretary may give the claimant a notice:
(a)
stating the indexed estimate for the individual; and
(b)
specifying the start day used in the Secretary's calculation (which must be the first day of a CCS fortnight at least 14 days after the day the notice is given).
67DC(3)
The Secretary must not give a notice under subsection (2) stating an indexed estimate for the individual with a start day in an income year if the Secretary has already given a notice under subsection (2) stating an indexed estimate for that individual with a start day in the same income year.
67DC(4)
A notice given to a claimant under subsection (2) stating an indexed estimate for an individual has no effect if, before the start day specified in the notice for the indexed estimate, the Secretary gives the claimant a notice under subsection
67DD(2) stating an indexed actual income for the same individual. Any such notice under subsection
67DD(2) must specify a start day that is no earlier than the start day specified in the superseded notice.
67DC(5)
Calculate an indexed estimate (which may be nil) for the individual by multiplying the individual's current ATI number (see subsection (6)) by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):
|
AWE for the reference period in the most recent November |
|
|
AWE for the reference period in the highest previous November |
|
where:
AWE
means the amount published by the Australian Statistician in a document titled "Average Weekly Earnings" under the headings "Average Weekly Earnings, Australia - Original - Persons - All employees total earnings" (or, if any of those change, in a replacement document or under replacement headings).
highest previous November
means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.
most recent November
means the November of the income year before the income year in which the start day occurs.
reference period
, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.
67DC(6)
For the purposes of subsection (5), the individual's
current ATI number
is:
(a)
if, at the time of calculation, the Secretary has given the claimant a notice under subsection
67DD(2) stating an indexed actual income for the individual with a start day that has not arrived - the indexed actual income stated in the notice; or
(b)
if paragraph (a) does not apply and the individual is the claimant - the amount the Secretary is permitted to use for the individual under section
67DB (disregarding the effect for couples of section
67DE of this Act and clause
3AA of Schedule
3 to the Family Assistance Act); or
(c)
if paragraph (a) does not apply and the individual is the claimant's partner - the amount the Secretary would be permitted to use for the individual under section
67DB if the individual were the claimant (disregarding the effect for couples of section
67DE of this Act and clause
3AA of Schedule
3 to the Family Assistance Act).
History
S 67DC(6) amended by No 125 of 2019, s 3 and Sch 1 item 47, by substituting "clause 3AA" for "clause 3" in para (b) and (c), effective 16 December 2019.
67DC(7)
A notice under subsection (2) is not a legislative instrument.
History
S 67DC inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67DD
Indexed actual incomes
67DD(1)
The Secretary may calculate an indexed actual income for an individual under subsection (4), with a start day chosen by the Secretary, if:
(a)
the individual, or the individual's partner, is a claimant for CCS by fee reduction; and
(b)
a determination is in effect under paragraph
67CC(1)(a) that the claimant is eligible for CCS; and
(c)
information about the adjusted taxable income of the individual needed to make a determination under Division
3 for the claimant is not known; and
(d)
the most recent such determination made for the claimant was made on the basis of an indexed estimate or an indexed actual income; and
(e)
since the claimant was last given a notice under subsection
67DC(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for an individual, the claimant has not given the Secretary an estimate of the claimant's adjusted taxable income that the Secretary considers to be reasonable; and
(f)
the adjusted taxable income for an income year (
actual income
) of the individual (disregarding the effect for couples of clause
3AA of Schedule
3 to the Family Assistance Act) becomes known to the Secretary and it is the most recent income year for which the individual's actual income is known to the Secretary.
History
S 67DD(1) amended by No 125 of 2019, s 3 and Sch 1 item 48, by substituting "clause 3AA" for "clause 3" in para (f), effective 16 December 2019.
67DD(2)
If:
(a)
the Secretary calculates an indexed actual income for the individual; and
(b)
the indexed actual income is greater than the individual's current ATI number (see subsection (5));
the Secretary may give the claimant a notice:
(c)
stating the indexed actual income for the individual; and
(d)
specifying the start day used in the Secretary's calculation (which must be the start of a CCS fortnight at least 14 days after the day the notice is given).
67DD(3)
A notice given to a claimant under subsection (2) stating an indexed actual income for an individual has no effect if, before the start day specified in the notice, the Secretary gives the claimant another notice under that subsection or a notice under subsection 55AA(2) stating an indexed estimate or indexed actual income for the same individual. Any other such notice must specify a start day that is no earlier than the start day specified in the superseded notice.
67DD(4)
Calculate an indexed actual income (which may be nil) for the individual by multiplying the actual income of the individual which became known to the Secretary by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):
|
AWE for the reference period in the most recent November |
|
|
AWE for the reference period in the highest previous November |
|
where:
AWE
means the amount published by the Australian Statistician in a document titled "Average Weekly Earnings" under the headings "Average Weekly Earnings, Australia - Original - Persons - All employees total earnings" (or, if any of those change, in a replacement document or under replacement headings).
highest previous November
means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.
most recent November
means the November of the income year before the income year in which the start day occurs.
reference period
, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.
67DD(5)
For the purposes of paragraph (2)(b), the individual's
current ATI number
is:
(a)
if, at the time of calculation, the Secretary has given the claimant a notice under subsection
67DC(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for the individual with a start day that has not arrived - the indexed estimate or indexed actual income stated in the notice; or
(b)
if paragraph (a) does not apply and the individual is the claimant - the amount the Secretary is permitted to use for the individual under section
67DB (disregarding the effect for couples of section
67DE of this Act and clause
3AA of Schedule
3 to the Family Assistance Act); or
(c)
if paragraph (a) does not apply and the individual is the claimant's partner - the amount the Secretary would be permitted to use for the individual under section
67DB if the individual were the claimant (disregarding the effect for couples of section
67DE of this Act and clause
3AA of Schedule
3 to the Family Assistance Act).
History
S 67DD(5) amended by No 125 of 2019, s 3 and Sch 1 item 48, by substituting "clause 3AA" for "clause 3" in para (b) and (c), effective 16 December 2019.
67DD(6)
A notice under subsection (2) is not a legislative instrument.
History
S 67DD inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67DE
Indexed estimates and indexed actual incomes for members of couples
67DE(1)
This section applies in relation to any individual who is a member of a couple.
67DE(2)
For the purposes of this Act or the Family Assistance Act, any reference to a determination under section
67CD being made on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (3).
67DE(3)
The reference is taken to be a reference to the determination being made on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with:
(a)
the indexed estimate or indexed actual income for the individual's partner stated in a notice given to:
(i)
if the individual is the claimant for CCS or ACCS (grandparent) - the individual; or
(ii)
if the individual is the partner of the claimant - the individual's partner;
under subsection 67DC(2) or 67DD(2) with the most recent start day that has arrived or passed; or
(b)
if there is no such indexed estimate or indexed actual income - a reasonable estimate of the adjusted taxable income of the individual's partner (disregarding the effect of clause
3AA of Schedule
3 to the Family Assistance Act) that has been given to the Secretary by the individual.
History
S 67DE(3) amended by No 125 of 2019, s 3 and Sch 1 item 49, by substituting "clause 3AA" for "clause 3" in para (b), effective 16 December 2019.
History
S 67DE inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 5 - Payments
History
Div 5 inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67EA
Simplified outline of this Division
If an individual is entitled to be paid CCS or ACCS by fee reduction for sessions of care provided to a child in a week:
(a) the Secretary pays the amount to the provider of the child care service (less a withholding amount in the case of CCS); and
(b) the provider must pass on the amount to the individual within 14 days or a longer period directed by the Secretary (whether as a fee reduction or in any other way). The provider's obligation to pass on the amount is dealt with in section 201A.
If the individual does not receive their full entitlement in this way, the entitlement is paid directly to them, though usually not until after the CCS reconciliation conditions are met.
Approved providers who are entitled to be paid ACCS (child wellbeing), and individuals who are entitled to be paid CCS or ACCS in substitution for an individual who has died, are paid their entitlements directly.
History
S 67EA amended by No 66 of 2022, s 3 and Sch 8 item 1, by inserting "or a longer period directed by the Secretary" in para (b), effective 30 November 2022 and applicable in relation to fee reduction decisions that are made on or after 30 November 2022.
S 67EA inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67EB
Payments to providers of individuals' entitlements to CCS or ACCS by fee reduction
67EB(1)
If a fee reduction decision is made for an individual in relation to sessions of care provided by a child care service to a child, the Secretary must pay the fee reduction amount for the decision to the credit of a bank account nominated and maintained by the provider of the service.
Note:
However, the Secretary may instead pay the fee reduction amount directly to the individual (see subsection 67EC(2)).
67EB(2)
The following table sets out the decisions that are
fee reduction decisions
and the amount that is the
fee reduction amount
for each such decision. A reference to a provider being given notice of a fee reduction decision is a reference to the provider being given notice of the decision under the provision specified for the decision in the table.
Fee reduction decisions and fee reduction amounts
|
Item
|
Fee reduction decision
|
Fee reduction amount
|
Notice of the decision
|
1 |
a determination made under subsection 67CD(2) of an amount of CCS the individual is entitled to be paid for sessions of care provided by a service to a child in a week, if made while the child is still enrolled for care by the service |
the amount of CCS the individual is entitled to be paid less the withholding amount for the payment |
subsection 67CE(4) |
2 |
a determination made under subsection 67CD(3), (4) or (6) of an amount of ACCS the individual is entitled to be paid for sessions of care provided by a service to a child in a week, if made while the child is still enrolled for care by the service |
the amount of ACCS the individual is entitled to be paid |
subsection67CE(4) |
3 |
a decision on review under Part 5 of this Act or under the AAT Act that has the effect that the amount of CCS an individual is entitled to be paid for sessions of care provided by a service to a child in a week in a CCS fortnight is increased (including from nil), if the decision is made:
(a) before the individual meets the CCS reconciliation conditions for the income year in which the CCS fortnight starts; and
(b) while the child is still enrolled for care by the service |
the amount by which the entitlement is increased, less the withholding amount for the payment |
subsection 106A(2) or 109B(2A) or section 136 |
4 |
a decision on review under Part 5 of this Act or under the AAT Act that has the effect that the amount of ACCS an individual is entitled to be paid for sessions of care provided by a service to a child in a week in a CCS fortnight is increased (including from nil), if the decision is made:
(a) before the individual meets the CCS reconciliation conditions for the income year in which the CCS fortnight starts; and
(b) while the child is still enrolled for care by the service |
the amount by which the entitlement is increased |
subsection 106A(2) or 109B(2A) or section 136 |
[
CCH Note:
S 67EB(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART Act" for "AAT Act" in table item 3 and 4, column headed "Fee reduction decision", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
67EB(3)
The
withholding amount
, for a payment, is the following percentage of the payment:
(a)
10%;
(b)
if the Minister's rules prescribe a different percentage and paragraph
(c) does not apply - the prescribed percentage;
(c)
if a determination made under subsection
(4) applies to the individual - the percentage specified in the determination.
67EB(4)
The Secretary may make a determination specifying a percentage for an individual for the purposes of paragraph
(3)(c), if the Secretary is satisfied that the percentage is appropriate to manage a debt that has been or might be incurred by the individual under Part
4.
67EB(5)
A determination made under subsection
(4) is not a legislative instrument.
67EB(6)
This section is subject to:
(a)
subsection
67EC(2) (direct payment to individuals); and
(b)
Part
4 (overpayments and debt recovery); and
(c)
paragraph
195H(1)(f) (suspension of payments); and
(d)
section
205B (setting off business continuity payments).
History
S 67EB inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67EC
Payment directly to individuals of entitlements to CCS or ACCS
Before CCS reconciliation conditions met
67EC(1)
If:
(a)
a decision is made for an individual in relation to sessions of care provided by an approved child care service to a child; and
(b)
the decision would be a fee reduction decision except that the child is not enrolled for care by the service when the decision is made;
the Secretary must pay the amount that would have been the fee reduction amount for the decision, in accordance with subsection (5):
(c)
directly to the individual; or
(d)
if the Secretary considers it appropriate - to another person:
(i)
on the individual's behalf; or
(ii)
to discharge or set off an obligation of the individual to the other person.
67EC(2)
If:
(a)
a fee reduction decision is made for an individual in relation to sessions of care provided by an approved child care service to a child; and
(b)
the Secretary considers that it is appropriate in the circumstances;
the Secretary may pay the fee reduction amount directly to the individual in accordance with subsection (5) instead of under subsection 67EB(1) (payment to credit of approved provider's bank account).
Fee reduction amounts not passed on
67EC(3)
If a provider:
(a)
remits a fee reduction amount to the Secretary in accordance with paragraph
201A(1)(b); or
(b)
incurs a debt to the Commonwealth under section
71D in relation to a fee reduction amount;
the Secretary may pay the fee reduction amount directly to the individual in accordance with subsection (5).
After CCS reconciliation conditions met
67EC(4)
If:
(a)
an individual is entitled to be paid CCS or ACCS by fee reduction for sessions of care provided by an approved child care service in CCS fortnights starting in an income year (the
relevant income year
); and
(b)
the individual meets the CCS reconciliation conditions for the relevant income year; and
(c)
the total of the fee reduction amounts passed on by the provider of the service to the individual under section
201A, for fee reduction decisions for weeks in CCS fortnights starting in the relevant income year, is less than the total amount of CCS or ACCS the individual is entitled to be paid for those weeks;
the Secretary must pay so much of the difference as has not already been paid under subsection (1), (2) or (3) to the individual under subsection (5).
Note:
CCS payments for an income year are capped if the CCS reconciliation conditions for the income year are met after the second deadline for the income year (see subsection 105D(2A)).
History
S 67EC(4) amended by No 26 of 2021, s 3 and Sch 1 items 45 and 46, by omitting "no later than the second deadline for the relevant income year" after "relevant income year" from para (b) and inserting the note, effective 27 March 2021 and applicable in relation to the 2018-19 income year and each later income year. For application provisions, see note under s 205C.
How amounts are to be paid under this section
67EC(5)
The whole or any part of an amount mentioned in subsection (1), (2), (3) or (4) must be paid at such time as the Secretary considers appropriate:
(a)
to the credit of a bank account nominated and maintained by:
(i)
the individual; or
(ii)
if the amount is to be paid to another person under paragraph (1)(b) - the other person; or
(b)
if the Secretary so directs - in a different way.
67EC(6)
Without limitation, the Secretary may consider that it is not appropriate to make a payment under subsection (1), (2) or (3) until after the individual meets the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week to which the payment relates starts.
Provisions this section is subject to
67EC(7)
This section is subject to:
(a)
Part
4 (overpayments and debt recovery); and
(b)
Division
3 of Part
8B (payments to payment nominees).
History
S 67EC inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67ED
Payment of CCS or ACCS in substitution for an individual who has died
67ED(1)
If an individual is entitled to be paid CCS or ACCS in substitution for an individual who has died, the Secretary must pay the amount of the entitlement, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the individual.
67ED(2)
The Secretary may direct that the whole or part of the amount is to be paid in a different way. If the Secretary does so, the amount must be paid in accordance with the direction.
67ED(3)
This section is subject to:
(a)
Part
4 (overpayments and debt recovery); and
(b)
Division
3 of Part
8B (payments to payment nominees).
History
S 67ED inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67EE
Payments to provider in respect of provider's own entitlement to be paid ACCS (child wellbeing)
67EE(1)
If a provider is entitled to be paid an amount of ACCS (child wellbeing) for sessions of care provided to a child in a week, the Secretary must pay the amount, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the provider.
67EE(2)
This section is subject to:
(a)
Part
4 (overpayments and debt recovery); and
(b)
paragraph
195H(1)(f) (suspension of payments); and
(c)
section
205B (setting off business continuity payments).
History
S 67EE inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 6 - Giving information
History
Div 6 inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FA
Simplified outline of this Division
Individuals who are eligible for CCS or ACCS have a duty to keep the Secretary informed about changes of circumstances that might affect their eligibility or entitlement.
The Secretary may also request individuals from time to time to give information relevant to their eligibility or entitlement.
Providers have a duty to notify the Secretary if they consider that a child who has been considered to be at risk of serious abuse or neglect is not at risk. The Secretary may also request them to give information about various matters.
History
S 67FA inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FB
Notice of change of circumstances: individuals
67FB(1)
An individual must notify the Secretary as soon as practicable, in a manner set out in a notice given to the individual under section
67FD, if:
(a)
a determination is in effect under paragraph
67CC(1)(a) that the individual is eligible for CCS for a child; and
(b)
any of the following happens:
(i)
an event that causes the individual to cease to be eligible for CCS for sessions of care provided by an approved child care service to the child;
(ii)
if the individual was eligible for a kind of ACCS - an event that causes the individual to cease to be eligible for that kind of ACCS for sessions of care provided by an approved child care service to the child;
(iii)
an event that affects whether the individual is entitled to be paid CCS or a kind of ACCS, or the amount of CCS or ACCS the individual is entitled to be paid, for the child;
(iv)
the individual becomes aware that an event referred to in subparagraph (i), (ii) or (iii) is likely to happen.
67FB(2)
An individual commits an offence if the individual contravenes subsection
(1).
Penalty: Imprisonment for 6 months.
67FB(3)
Subsection
(1) does not require an individual who has been eligible for ACCS (transition to work) to notify the Secretary of the end of the 24 week period referred to in paragraph
85CK(2)(b) of the Family Assistance Act.
History
S 67FB(3) amended by No 106 of 2023, s 3 and Sch 2 item 12, by substituting "24 week" for "12 week", effective 1 July 2024.
67FB(4)
To avoid doubt, subsection
(1) does not require an individual who is eligible for CCS or ACCS for an Aboriginal or Torres Strait Islander child to notify the Secretary that the child is an Aboriginal or Torres Strait Islander child.
History
S 67FB(4) inserted by No 66 of 2022, s 3 and Sch 3 item 4, effective 1 July 2023 and applicable in relation to sessions of care provided to a child in a CCS fortnight that starts in the income year in which this item commences or in a later income year. No 66 of 2022, s 3 and Sch 3 item 9 contains the following transitional provision:
9 Transitional rules
(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments made by this Schedule.
(2)
To avoid doubt, rules made for the purposes of subitem (1) may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)
directly amend the text of an Act.
History
S 67FB inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FC
Notice if child not at risk of serious abuse or neglect: providers
67FC(1)
An approved provider must notify the Secretary as soon as practicable, in a manner set out in a notice given to the provider under section
67FD, if:
(a)
a certificate given by the provider under section
85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to a child for a week; and
(b)
the provider considers that the child is not at any risk of serious abuse or neglect during the week; and
(c)
the time for cancelling the certificate under section
85CC of the Family Assistance Act has passed.
67FC(2)
An approved provider must notify the Secretary as soon as possible, in a manner set out in a notice given to the provider under section
67FD, if:
(a)
the provider knows that a determination made by the Secretary under section
85CE (determination for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to a child for a week; and
(b)
the provider considers that the child is not at any risk of serious abuse or neglect during the week.
67FC(3)
A person commits an offence if the person contravenes subsection (1) or (2).
Penalty: 60 penalty units.
67FC(4)
Subsection (1) and (2) apply even if the certificate or determination has ceased to have effect.
History
S 67FC inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FD
Manner of notifying change of circumstances
67FD(1)
The Secretary must approve a manner of notification to be used to notify the Secretary of matters required to be notified under sections
67FB and
67FC.
67FD(2)
The Secretary must give individuals to whom section
67FB applies and approved providers to whom section
67FC applies written notice of the approved manner.
History
S 67FD inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FE
67FE
Request for bank account details
If:
(a)
a determination is in effect under paragraph
67CC(1)(a) that an individual is eligible for CCS for a child; and
(b)
the Secretary is satisfied that the Secretary does not have the details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid;
the Secretary may, by written notice given to the individual, request the individual to give the Secretary the details of such a bank account within 28 days of the request.
History
S 67FE inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FF
67FF
Request for tax file number etc. in claim forms
(Repealed by No 125 of 2019)
History
S 67FF repealed by No 125 of 2019, s 3 and Sch 1 item 50, effective 16 December 2019. S 67FF formerly read:
SECTION 67FF Request for tax file number etc. in claim forms
67FF(1)
The Secretary may request, in a claim form for CCS by fee reduction, that a statement of the kind referred to in paragraph 67BH(1)(a), (b) or (c) be made in relation to each TFN claim person.
67FF(2)
The Secretary may request, in a claim form for CCS in substitution for an individual who has died, that a statement of the kind referred to in paragraph 67BI(1)(a), (b) or (c) be made in relation to each TFN substitution person.
S 67FF inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FG
67FG
Request for tax file number etc. of TFN determination persons
If:
(a)
a determination is in effect under paragraph
67CC(1)(a) that an individual is eligible for CCS for a child; and
(b)
the Secretary does not know the tax file number of one or more of the TFN determination persons;
the Secretary may, by written notice given to the individual, request that the individual provide the tax file number of a specified TFN determination person within 28 days of the request.
History
S 67FG substituted by No 125 of 2019, s 3 and Sch 1 item 51, effective 16 December 2019. S 67FG formerly read:
SECTION 67FG Request for tax file number etc. of TFN determination persons
67FG(1)
If:
(a)
a determination is in effect under paragraph 67CC(1)(a) that an individual is eligible for CCS for a child; and
(b)
the Secretary is satisfied that the tax file number requirements in section 67BH are not met for the purposes of a determination under Division 3 for the individual;
the Secretary may, by written notice given to the individual, request that a statement of the kind referred to in paragraph 67BH(1)(a), (b) or (c) be made in relation to a specified TFN determination person within 28 days of the request.
67FG(2)
For the purposes of subsection (1), a reference in subsection 67BH(1) to:
(a)
the claimant - is taken to be a reference to the individual; and
(b)
a TFN claim person - is taken to be a reference to a TFN determination person.
S 67FG inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FH
Request for information about care provided
67FH(1)
The Secretary may, by written notice given to the approved provider of a child care service, require the provider to give the Secretary information in relation to any aspect of care provided or expected to be provided by the service.
67FH(2)
The notice must:
(a)
specify the period in relation to which, or the intervals at which, the information is to be provided; and
(b)
be given in a form and manner approved by the Secretary.
67FH(3)
Information given in response to the notice must be given in a form and manner approved by the Secretary.
History
S 67FH inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67FI
67FI
Request for information in relation to eligibility or entitlement for CCS or ACCS
The Secretary may, by written notice given to an individual for whom a determination is in effect under paragraph
67CC(1)(a) that the individual is eligible for CCS for a child, request the individual to give the Secretary, before the end of the period specified in the notice, the information specified in the notice in relation to the individual's present or future eligibility or entitlement for CCS or ACCS.
History
S 67FI inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 7 - Payment protection and garnishee orders
History
Div 7 inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67GA
Simplified outline of this Division
Generally, a payment of CCS or ACCS is protected, subject to some exceptions related to debt management and payment to nominees.
History
S 67GA inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67GB
Protection of payments in relation to CCS and ACCS
67GB(1)
Payments of the following amounts are absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise:
(a)
child care subsidy;
(b)
additional child care subsidy;
(c)
payments under section
67EB (fee reduction amounts);
(d)
payments under section
205A or
205C (business continuity payments).
History
S 67GB(1) amended by No 26 of 2021, s 3 and Sch 1 item 3, by inserting "or 205C" in para (d), effective 27 March 2021. For application provisions, see note under s 205C.
67GB(2)
Subsection (1) has effect subject to the following provisions:
(a)
paragraph
67EC(5)(b) and subsection
67ED(2) (about payment of CCS or ACCS in a different way);
(b)
section
84A (about setting off a person's entitlement to family assistance against a debt of the person);
(c)
section
87A (setting off debts against various payments);
(d)
Division
3 of Part
8B (about payments to payment nominee).
History
S 67GB inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 67GC
Effect of garnishee etc. order
67GC(1)
If:
(a)
a person has an account with a financial institution; and
(b)
payments of any of the kinds mentioned in subsection
67GB(1) are being paid, or have been paid, to the credit of the account; and
(c)
a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
67GC(2)
The saved amount is worked out as follows:
Method statement
Step 1.
Work out the total amount of the payments mentioned in subsection (1) 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.
History
S 67GC inserted by No 22 of 2017, s 3 and Sch 1 item 92, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
PART 4 - OVERPAYMENTS AND DEBT RECOVERY
Division 1-Preliminary
SECTION 68
68
References to amount paid to person
For the purposes of this Part, an amount of family assistance is taken to be paid to a person if:
(a)
the amount is applied against a liability of that person or another person for:
(i)
a primary tax; or
(ii)
a debt under this Act or the Social Security Act 1991; or
(b)
the amount is set off under this Part against another amount.
Note:
CCS or ACCS is also taken to have been paid to a person if a fee reduction amount is passed on to an individual (see section 201A).
History
S 68 substituted by No 22 of 2017, s 3 and Sch 1 item 93, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 68 formerly read:
SECTION 68 Meaning of
amount paid to person
68(1)
For the purposes of this Part,
amount paid to person
in respect of whom a determination of entitlement to be paid child care benefit has been made - means the amount of the entitlement (see subsection 3(1)) paid to the person.
History
S 68(1) substituted by No 45 of 2000, s 2 Sch 2 item 76, effective 1 July 2000. For transitional provisions see note under s 69. S 68(1) formerly read:
68(1)
For the purposes of this Part, if an amount of child care benefit is paid to an approved child care service pursuant to a claim by a person, the amount is taken to have been paid to either:
(a)
the person who made the claim; or
(b)
if, at the time the amount is paid, another person is, in accordance with the regulations, liable for repayment of debts under this Act in relation to the child care benefit-that other person.
68(1A)
In the case of a person in respect of whom a determination of entitlement to be paid child care benefit by fee reduction has been made under section 51B (individual) or 54B (approved child care service), the amount of the entitlement paid to the person consists of:
(a)
the amount:
(i)
in the case of an individual - that the service that provided care in respect of which the determination under section 51B was made is required, under section 219B, to pass on to the individual as a fee reduction for that care; or
(ii)
in the case of a service that provided care in respect of which a determination under section 54B was made - that the service is required, under section 219BA, to pass on to itself as a fee reduction for that care; and
(b)
the amount, as paid to the person, of the difference (if any) referred to in:
(i)
in the case of an individual - subsection 56(1); and
(ii)
in the case of an approved child care service - subsection 56B(1).
History
S 68(1A) amended by No 118 of 2007, s 3 and Sch 1 item 34, by substituting para (a), effective 29 June 2007. For applicationand transitional provisions see note under Pt 8A heading. Para (a) formerly read:
(a)
the amount:
(i)
in the case of an individual - received by the individual as fee reductions in respect of an income year; or
(ii)
in the case of a service - received by the service, in respect of a financial year, from one or more payments of an amount of an advance paid to reimburse the service the amount of fee reductions made for care provided by the service to a child; and
S 68(1A) inserted by No 45 of 2000, s 2 Sch 2 item 76, effective 1 July 2000. For transitional provisions see note under s 69.
68(1B)
In the case of a person who has made an election under paragraph 65EAAAA(1)(b) to have child care rebate in respect of a child paid weekly to an approved child care service, the amount of child care rebate paid to the person in a week for which the election is in effect consists of the amount that the service is required, under section 219EA, to pass on to the individual for care provided for the child in the week.
History
S 68(1B) inserted by No 25 of 2011, s 3 and Sch 1 item 25, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
68(2)
For the purposes of this Part, an amount of family assistance is taken to be paid to a person if that amount is applied against a liability of that person or another person for:
(a)
a primary tax; or
(b)
a debt under this Act or the Social Security Act 1991.
SECTION 68A
68A
Recovery from approved child care service
(Repealed by No 22 of 2017)
History
S 68A repealed by No 22 of 2017, s 3 and Sch 1 item 93, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 68A formerly read:
SECTION 68A Recovery from approved child care service
68A
The amount of a debt due under this Part by an approved child care service is payable by the operator of the service.
S 68A inserted by No 53 of 2008, s 3 and Sch 3 item 28, effective 25 June 2008.
SECTION 69
69
Special provisions relating to approved providers
For the purposes of this Part, a reference to an amount being paid to a person when the person is an approved provider includes a reference to an amount that, at the time when it was paid, was paid to an approved provider even if:
(a)
the provider is no longer approved; or
(b)
the provider is no longer approved in respect of the service concerned.
History
S 69 substituted by No 22 of 2017, s 3 and Sch 1 item 93, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 69 formerly read:
SECTION 69 Special provisions relating to approved child care services
69
For the purposes of this Part, a reference to an amount being paid to a person when the person is an approved child care service includes a reference to an amount that, at the time when it was paid, was paid to an approved child care service even if:
(a)
the service is no longer approved; or
(b)
the service operator no longer operates the service concerned.
S 69 substituted by No 45 of 2000, s 3 Sch 2 item 77, effective 1 July 2000.
Act No 45 of 2000 contained the following transitional provisions:
Schedule 5 - Transitional and saving provisions associated with the establishment of a scheme for the payment of family tax benefit, maternity allowance and maternity immunisation allowance
1 Definitions
(1)
In this Schedule, unless the contrary intention appears:
approved care organisation
means an organisation that is taken, by virtue of the operation of subitem (2), to be an approved care organisation for the purposes of the Family Assistance Act.
Family Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
Family Assistance Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
family assistance law
has the same meaning as in subsection 3(1) of the Family Assistance Administration Act.
family benefit
means payments of:
(a)
family allowance; or
(b)
family tax payment; or
(c)
parenting payment in the nature of non-benefit PP (partnered);
payable under the social security law.
MAT
means maternity allowance within the meaning of subsection 3(1) of the Family Assistance Administration Act.
MIA
means maternity immunisation allowance within the meaning of subsection 3(1) of the Family Assistance Administration Act.
receiving
, in relation to family benefit, has the meaning given under subitem (3).
Secretary
, in relation to an act or thing done, or a decision or determination made, under particular legislation, means the Secretary of the Department administered by the Minister administering that legislation.
social security law
means the Social Security Act 1991 and the Social Security (Administration) Act 1999.
(2)
Any organisation that, immediately before 1 July 2000, was an approved care organisation for the purposes of the
Social Security Act 1991 is taken to have been approved under section 20 of the Family Assistance Act, with effect from that date
, as an approved care organisation, for the purposes of the latter Act.
(3)
For the purposes of this Part, an individual or an approved care organisation is taken to be receiving payments of family benefit under the
Social Security Act 1991 from the earliest date on which such payments are payable to the individual or to the organisation, as the case requires, even if the first instalment of that benefit is not paid until a later day.
2 Individuals receiving family benefit treated as having lodged effective claim for family tax benefit by instalment
(1)
If, immediately before 1 July 2000, an individual was receiving family benefit, then, with effect from that date, that individual is taken, subject to items 4 and 5, to have made an effective claim for family tax benefit by instalment under subsection
7(2) of the Family Assistance Administration Act as amended by this Act.
(2)
If, before 1 July 2000, an individual receiving family benefit had provided bank account details for the purposes of making the claim for, or receiving, such benefits, those details are taken to have been provided in the context of the effective claim that is taken to have been made under subitem (1).
3 Approved care organisations receiving family allowance treated as having lodged effective claim for family tax benefit by instalment
(1)
If, immediately before 1 July 2000, an approved care organisation was receiving family allowance, then, with effect from that date, that organisation is taken, subject to item 5, to have made an effective claim for family tax benefit by instalment under subsection
7(2) of the Family Assistance Administration Act as amended by this Act.
(2)
If, before 1 July 2000, the organisation had provided bank account details for the purposes of making the claim for, or receiving, such family allowance payments, those details are taken to have been provided in the context of the effective claim that is taken to have been made under subitem (1).
4 Special rules relating to outstanding TFN requirements
4
If:
(a)
an individual has been requested, before 1 July 2000, under section
75 of the
Social Security (Administration) Act 1999, to provide a tax file number in relation to a claim for, or the receipt of, family benefit; and
(b)
the individual has not, before that date, provided that tax file number; and
(c)
as at 1 July 2000, less than 28 days have elapsed since the request to provide that number;
then, for the purposes of section 27 of the Family Assistance Administration Act as amended by this Act:
(d)
the Family Assistance Administration Act as so amended is treated as having been in force when the requirement to provide that tax file number was made; and
(e)
the requirement to provide that tax file number is taken to have been made, at the time when it was made, under section
26 of the Family Assistance Administration Act as so amended and as so in force.
5 Special rules relating to outstanding bank account requirements
5
If:
(a)
an individual or an approved care organisation has been requested, before 1 July 2000, under section 55 of the
Social Security (Administration) Act 1999 to nominate a bank account into which family benefit can be paid; and
(b)
the individual or organisation has not, before that date, nominated a bank account; and
(c)
as at 1 July 2000, less than 28 days have elapsed since the request to nominate an account;
then, for the purposes of section 27A of the Family Assistance Administration Act as amended by this Act:
(d)
the Family Assistance Administration Act as so amended is treated as having been in force when the requirement to nominate a bank account was made; and
(e)
the requirement to nominate a bank account is taken to have been made, at the time when it was made, under section
26A of the Family Assistance Administration Act as so amended and as so in force.
6 The making of determinations
(1)
On, or as soon as practicable after, 1 July 2000, the Secretary will assess the eligibility for family tax benefit by instalment of each individual, and each approved care organisation, that is taken to have lodged an effective claim.
(2)
If, for the purposes of making a determination under section
16 of the Family Assistance Administration Act as amended by this Act in relation to an individual or approved care organisation to which subitem (1) refers:
(a)
the Secretary has, before 1 July 2000, sought from an individual or an approved care organisation any information necessary for the purposes of making such a determination; and
(b)
that information has not been provided;
the Secretary may make a determination under section 19 of the Family Assistance Administration Act as so amended to the effect that the individual or organisation is not entitled to be paid family tax benefit by instalment for each day while the determination is in force.
(3)
For the avoidance of doubt, such a determination does not prevent an individual or organisation that later provides information as required by the Secretary from claiming under the Family Assistance Administration Act as so amended:
(a)
family tax benefit by instalment when that information is so provided; and
(b)
family tax benefit for the past period between 1 July 2000 and the time when a determination of entitlement to family tax benefit by instalment is made.
7 Directions concerning payments to third parties
7
If, immediately before 1 July 2000, there was in force a direction by the Secretary under subsection 44(3) of the
Social Security (Administration) Act 1999 to the effect that the whole or a part of a person's family benefit payment be paid to someone else on behalf of the person, that direction has effect, on and after that date, as if it were a direction to the same effect given by the Secretary under subsection
23(4) of the Family Assistance Administration Act as amended by this Act in relation to the payment of family tax benefit in respect of that person.
8 Instalment periods
(1)
If:
(a)
an individual or an approved care organisation was receiving family benefit by way of family allowance or family tax payment immediately before 1 July 2000; and
(b)
that individual or organisation received, or last received, a payment of that family allowance or family tax payment in respect of a period commencing less than 14 days before 1 July 2000; and
(c)
the Secretary makes a determination under section
16 of the Family Assistance Administration Act as amended by this Act in respect of the entitlement of that individual or organisation to family tax benefit with effect from that day;
then:
(d)
the first instalment of family tax benefit is to be for a period starting on 1 July 2000 and ending 14 days after the beginning of the last instalment of family benefit; and
(e)
instalments of family tax benefit thereafter, subject to any change that the Secretary may make under subsection
23(3) of the Family Assistance Administration Act as so amended, are to be for successive periods of 14 days.
(2)
If:
(a)
an individual was not receiving family benefit by way of family allowance immediately before 1 July 2000 but was receiving family benefit by way of non-benefit PP (partnered) immediately before that date; and
(b)
that individual received, or last received, a payment of that non-benefit PP (partnered) in respect of a period commencing less than 14 days before 1 July 2000; and
(c)
the Secretary makes a determination under section
16 of the Family Assistance Administration Act as amended by this Act in respect of the entitlement of that individual to family tax benefit with effect from that day;
then:
(d)
the first instalment of family tax benefit is to be for a period starting on 1 July 2000 and ending 14 days after the beginning of the last instalment of non-benefit PP (partnered); and
(e)
instalments of family tax benefit thereafter, subject to any change that the Secretary may make under subsection
23(3) of the Family Assistance Administration Act as so amended, are to be for successive periods of 14 days.
9 Claims for family benefit that are undetermined as at 1 July 2000
(1)
If:
(a)
before 1 July 2000, a person lodged a claim for family benefit by way of family allowance or family tax payment; and
(b)
that claim was not determined before that date; and
(c)
the person was, at the time of the claim, or becomes, before 1 July 2000, qualified for family benefit of that kind;
the claim is to be determined under the social security law as in force before 1 July 2000, as if:
(d)
the social security law as so in force had continued in force; and
(e)
the claim related only to the period preceding 1 July 2000.
(2)
If:
(a)
before 1 July 2000, a person lodged a claim for family benefit by way of family allowance or family tax payment in anticipation of becoming qualified for that benefit; and
(b)
the claim was not determined by that date; and
(c)
the person does not become qualified for the relevant family benefit before 1 July 2000;
the claim is to be taken to have lapsed on that date.
(3)
If:
(a)
before 1 July 2000, a person has lodged a claim for parenting payment; and
(b)
the claim has not been determined before that date; and
(c)
the person was, at the time of the claim, or becomes, before 1 July 2000, qualified for family benefit of that kind;
then:
(d)
the claim is to be determined under the social security law as in force before 1 July 2000 as if the law as so in force had continued: and
(e)
if parenting payment would be paid under the law as so in force at the rate applicable for non-benefit PP (partnered) - the claim is to be determined as if it related only to the period preceding 1 July 2000.
(4)
If:
(a)
before 1 July 2000, a person lodged a claim for parenting payment in anticipation of becoming qualified for that payment; and
(b)
the claim was not determined by that date; and
(c)
the person does not become qualified for parenting payment before 1 July 2000; and
(d)
if the person were to become qualified for parenting payment on or after that date - it would be parenting payment in the nature of non-benefit PP (partnered) and not some other form of parenting payment;
the claim is to be taken to have lapsed on that date.
10 Certain claims for family benefit will be admitted on or after 1 July 2000
(1)
In this item:
backdated claim period
means a period after the occurrence of a particular event during which a claim for family benefit with effect from that event will be allowed.
(2)
If:
(a)
a person did not make a claim for family benefitbefore 1 July 2000; and
(b)
but for the amendment of the social security law with effect from 1 July 2000, if the person had made such a claim after that date, the backdated claim period would have extended back to the occurrence of a particular event before that date;
then:
(c)
the person may make such a claim on or after 1 July 2000 as if those amendments had not been made; and
(d)
the claim can be dealt with in so far as the backdated claim period would permit a claim in respect of a period before 1 July 2000.
11 Transfer of claims for maternity allowance or maternity immunisation allowance from social security law to family assistance law
(1)
If:
(a)
a person claims maternity allowance or maternity immunisation allowance under the social security law before 1 July 2000; and
(b)
the claim has not been determined as at that date;
the claim is to be treated as if it were a claim for MAT or MIA under Division 3 of Part 3 of the Family Assistance Administration Act as amended by this Act and not as such a claim for the corresponding allowance under the Social Security Act 1991.
(2)
If a person purports to claim maternity allowance or maternity immunisation allowance under the social security law on or after 1 July 2000, that claim is to be treated as if it were a claim for MAT or MIA, as the case requires, under Division
3 of Part
3 of the Family Assistance Administration Act as amended by this Act and not as such a claim for the corresponding allowance under the social security law.
(3)
A person who has been paid maternity allowance or maternity immunisation allowance under the social security law in respect of a particular child cannot claim MAT or MIA for the same child under Division
3 of Part
3 of the Family Assistance Administration Act as amended by this Act.
12 Applications for family benefit, maternity allowance or maternity immunisation allowance made after 1 July 2000 on behalf of another person
(1)
If:
(a)
an amount of family benefit is payable to a person; and
(b)
the person dies before receiving that amount; and
(c)
another person applies, on or after 1 July 2000, to receive the amount; and
(d)
the application is made:
(i)
within 26 weeks after the first person's death; or
(ii)
within such further period as is allowed by the Secretary in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the Secretary's opinion, is best entitled to it.
(2)
If:
(a)
an amount of maternity allowance or maternity immunisation allowance claimed under the social security law is payable to a person in respect of a particular child; and
(b)
the person dies before receiving that amount; and
(c)
another person applies, on or after 1 July 2000, to receive the amount; and
(d)
the application is made:
(i)
within 26 weeks after the first person's death; or
(ii)
within such further period as is allowed by the Secretary in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the Secretary's opinion, is best entitled to it.
(3)
If the Secretary pays an amount under subitem (1) in respect of family benefit of a particular kind claimed under the social security law, the Commonwealth has no further liability to any person in respect of family benefit of that kind under the social security law or in respect of any family benefit of a like kind under the family assistance law.
(4)
If the Secretary pays an amount under subitem (2) in respect of a particular child, the Commonwealth has no further liability to any person in respect of maternity allowance or maternity immunisation allowance under the social security law, or in respect of MAT or MIA under the family assistance law, in respect of that child.
(5)
For the purpose of Part
5 of the Family Assistance Administration Act, a decision of the Secretary under subitem (1) or (2) has effect as if it were a decision of an officer under the family assistance law.
13 Claims for advance payment under Social Security Law
(1)
If:
(a)
an individual had, under section 864A of the
Social Security Act 1991 as in force before 1 July 2000, requested a family allowance advance in respect of an advance period, within the meaning of that Act, that ended before 1 July 2000, and all subsequent advance periods; and
(b)that request had been granted;
the grant has effect, in relation to the advance period commencing on 1 July 2000 and all subsequent advance periods as if:
(c)
it were a grant made under section
33 of the Family Assistance Administration Act as amended by this Act; and
(d)
it related not to qualification for family allowance advance but rather to an entitlement to family tax benefit advance in relation to the individual's family tax benefit as determined by the Secretary in accordance with item 6.
(2)
For the avoidance of doubt, an individual who is treated, by virtue of the operation of subitem (1), as having made and been granted a request under section
33 of the Family Assistance Administration Act as amended by this Act, may on 1 July 2000, or at any time after that date, withdraw the request in so far as it is treated as relating to standard advance periods within the meaning of that Act as so amended for which the individual has not been paid a family tax benefit advance.
14 Saving provision relating to information collection
14
If:
(a)
family benefit, or maternity allowance or maternity immunisation allowance claimed under the social security law, is payable to a person; and
(b)
the Secretary decides, on or after 1 July 2000, to seek further information in relation to the benefit or allowance;
the Secretary may, under Division 1 of Part 5 of the Social Security (Administration) Act 1999, require the provision of information concerning that benefit or allowance, or concerning the person to whom it is payable, as if that benefit or allowance had continued, on and after 1 July 2000, to be a social security payment as defined for the purposes of the Social Security (Administration) Act 1999.
15 Portability
(1)
If:
(a)
immediately before 1 July 2000, an individual
(i)
is receiving family benefit in the nature of family allowance in respect of another individual; or
(ii)
is receiving family benefit in the nature of parenting payment because the individual has a PP child; and
(b)
the person in respect of whom, or because of whom, that benefit is received (the
child
) is absent from Australia immediately before that date because:
(i)
having left Australia, the child has not returned before that date; or
(ii)
having been born outside Australia, the child has not subsequently come to Australia before that date;
the child is not, if that absence extends for a period of 3 years beginning on the first day of the absence, an FTB child at any time after the period of 3 years ends.
(2)
In determining whether the period of absence of the child extends for 3 years beginning on the first day of the child's absence:
(a)
any return or coming to Australia before 1 July 2000 that would have been disregarded under the
Social Security Act 1991 as in force before that date had that Act as so in force continued unamended after that date is to be disregarded for the purposes of subitem (1); and
(b)
any return or coming to Australia on or after 1 July 2000 that would have been disregarded under section
24 of the Family Assistance Act as amended by this Act if that section were to have applied to the person is also to be disregarded for the purposes of that subitem.
(3)
If:
(a)
the child referred to in paragraph (1)(b) is absent from Australia for a continuous period of more than 26 weeks (whether or not that 26 weeks ends before 1 July 2000); and
(b)
an individual having an entitlement to family tax benefit in respect of the child is not an absent overseas recipient within the meaning of subsection
62(2) of the Family Assistance Act as amended by this Act during any part of the child's absence from Australia occurring after 26 weeks and after the individual becomes so entitled;
Schedule 1 to the Family Assistance Act as so amended applies in relation to that entitlement during that part of the child's absence that is referred to in paragraph (b) with the modifications set out in the table included in subsection 63(4) of that Act as so amended.
(4)
If:
(a)
the child referred to in paragraph (1)(b) is absent from Australia for a continuous period of more than 26 weeks (whether or not that 26 weeks ends before 1 July 2000); and
(b)
the child comes to Australia; and
(c)
the child leaves Australia less than 26 weeks after coming to Australia; and
(d)
an individual having an entitlement to family tax benefit in respect of the child is not an absent overseas recipient within the meaning of subsection
62(2) of the Family Assistance Act as amended by this Act during any part of the child's absence from Australia referred to in paragraph (c) after the individual becomes so entitled;
Schedule 1 to the Family Assistance Act as so amended applies in relation to that entitlement during that part of the child's absence that is referred to in paragraph (d) from Australia with the modifications set out in the table included in subsection 63(4) of that Act as so amended.
16 Lump sum bereavement payments for certain persons receiving non-benefit PP (partnered) at death of child
(1)
If:
(a)
a child died less than 4 weeks before 1 July 2000; and
(b)
at the time of the child's death, the child was the only PP child of a person; and
(c)
under section 512A of the
Social Security Act 1991 as in force immediately before 1 July 2000, if that section had continued in force after that date, the person would, but for this item, have qualified to continue to receive that parenting payment for the period of 4 weeks that starts on the day following the day of the child's death;
so much of the parenting payment as would have been payable in respect of each day in that 4 week period that occurs after 30 June 2000:
(d)
continues to be payable as if section 512A of that Act as so in force had not been repealed but had so provided; and
(e)
is payable as a single lump sum on, or as soon as practicable after, 1 July 2000.
(2)
For the purposes of Part 4 of the
Social Security (Administration) Act 1999, a decision made for the purposes of section 512A of the
Social Security Act 1991 as continued in force for the purposes of subitem (1) has effect as a decision of an officer under the social security law.
17 Lump sum bereavement payments for certain persons receiving family tax payment at death of child
(1)
If:
(a)
a child died less than 4 weeks before 1 July 2000; and
(b)
at the time of the child's death, a person was receiving family tax payment in respect of that child or of children including that child; and
(c)
under section 900AZZC of the
Social Security Act 1991 as in force before 1 July 2000, if that section had continued in force after that date, the person would, but for this item, have qualified to continue to receive family tax payment for the period of 4 weeks that starts on the day following the day of the child's death at the rate that would have been applicable if the child had not died;
so much only of the amount of family tax payment that would have been payable in respect of each day in that 4 week period that occurs after 30 June 2000 and that is attributable to that child:
(d)
continues to be payable to the person as if section 900AZZC of that Act as so in force had not been repealed but had so provided; and
(e)
is payable as a single lump sum on, or as soon as practicable after, 1 July 2000.
(2)
For the purposes of Part 4 of the
Social Security (Administration) Act 1999, a decision made for the purposes of section 900AZZC of the
Social Security Act 1991 as continued in force for the purposes of subitem (1) has effect as a decision of an officer under the social security law.
18 Lump sum bereavement payments for certain persons receiving family allowance at death of child
(1)
If:
(a)
a child died before 1 July 2000; and
(b)
at the time of the child's death a person was receiving family allowance in respect of that child or of children including that child; and
(c)
under Subdivision A or B of Division 10 of Part 2.17 of the
Social Security Act 1991 as in force before 1 July 2000, if those Subdivisions had continued in force after that date, the person would, but for this item, have qualified to continue to receive family allowance for a period (the
bereavement period
) that starts on the day following the day of the child's death at the rate that would have been applicable if the child had not died;
so much only of the amount of family allowance that would have been payable in respect of each day of the bereavement period that occurs after 30 June 2000 and that is attributable to that child:
(d)
continues to be payable to the person as if that Subdivision of that Act as so in force had not been repealed but had so provided; and
(e)
is payable as a single lump sum on, or as soon as practicable after, 1 July 2000.
(2)
For the purposes of Part 4 of the
Social Security (Administration) Act 1999, a decision under Subdivision A or B of Division 10 of Part 2.17 of the
Social Security Act 1991 as continued in force for the purposes of subitem (1) has effect as a decision of an officer under the social security law.
19 Set-offs
(1)
If:
(a)
a child dies before 1 July 2000; and
(b)
before the Secretary learns of the death of the child, an individual has begun to receive family tax benefit in respect of the child in accordance with a determination under section
16 of the Family Assistance Administration Act as amended by this Act in respect of any period after 30 June 2000;
the Secretary must, as soon as practicable after learning of the child's death, review that determination in accordance with section 104 of the Family Assistance Administration Act as so amended.
(2)
If the person continued to receive non-benefit PP (partnered) after 30 June 2000 in respect of the deceased child - the Secretary can set off the amount of any single lump sum due by the Commonwealth under item 16 against any debt arising on a review of family tax benefit conducted in accordance with subitem (1).
(3)
If the person continued to receive family tax payment after 30 June 2000 and the rate of the payment was attributable, in whole or in part, to the deceased child - the Secretary can set off the amount of any single lump sum due by the Commonwealth under item 17 against any debt arising on a review of family tax benefit conducted in accordance with subitem (1).
(4)
If the person continued to receive family allowance after 30 June 2000 and the rate of the allowance was attributable, in whole or in part, to the deceased child - the Secretary can set off the amount of any single lump sum due by the Commonwealth under item 18 against any debt arising on a review of family tax benefit conducted in accordance with subitem (1).
20 Bereavement payments in relation to the death of a recipient
(1)
Despite the repeal of section 513A of the
Social Security Act 1991 as in force before 1 July 2000, that section is taken to continue in force, on and after that date, so as to facilitate any claim by the partner of a person qualified for parenting payment in respect of a child who has died, for a period of 13 weeks after the death of that child.
(2)
For the purposes of subitem (1), section 513A of the
Social Security Act 1991 as so continued in force has effect as if the reference in the section to the amount of parenting payment that would have been payable includes a reference to any lump sum that would have been payable because of the operation of item 16.
(3)
Despite the repeal of section 900 of the
Social Security Act 1991 as in force before 1 July 2000, that section is taken to continue in force, on and after that date, so as to facilitate any claim by the partner of a person qualified for family allowance in respect of a child who has died, for a period of 13 weeks after the death of that child.
(4)
For the purposes of subitem (3), section 900 of the
Social Security Act 1991 as so continued in force has effect as if the reference:
(a)
in subsection (1) of that section to the sum of the amounts referred to in paragraphs (f), (g) and (h) of that subsection; and
(b)
in subsection (2) of that section to the sum of the amounts referred to in paragraphs (e), (f) and (g) of that subsection;
each includes a reference to any lump sum that would have been payable because of the operation of item 18.
(5)
For the purposes of Part 4 of the
Social Security (Administration) Act 1999, a decision made for the purposes of section 513A, or section 900, of the
Social Security Act 1991 as continued in force for the purposes of this item has effect as if it were a decision of an officer under the social security law.
21 Provision of TFNs in certain circumstances under
Social Security Act 1991
taken to be provision under Family Assistance Administration Act
21
If the tax file number of an individual has been provided to the Secretary:
(a)
by the individual; or
(b)
by the partner of the individual; or
(c)
by the Commissioner of Taxation on the authority of the individual;
under a provision of the Social Security Act 1991 for a purpose related to a claim for, or to entitlement to, family allowance, family tax payment or parenting payment in the nature of non-benefit PP (partnered), that tax file number is taken, for the purposes of subsection 154A(1) of the Family Assistance Administration Act as amended by this Act, to have been so provided under a provision of that Act as so amended for the purposes of that Act as so amended.
22 Saving provision - Part A rate of family tax benefit for families with children not subject to family allowance income test
(1)
This item applies to an individual who, immediately before 1 July 2000:
(a)
was receiving family allowance under the
Social Security Act 1991 in respect of a child; and
(b)
by virtue of the operation of subclause 52(2) or 53(2) of Schedule 1A to that Act - did not have to satisfy the requirements of paragraph 838(1)(c) of that Act in order to be qualified for family allowance for that child; and
(c)
was also receiving either carer allowance or double orphan pension under that Act in respect of that child.
(2)
If, on or after 1 July 2000, an individual to whom this item applies has at least one FTB child in relation to whom the individual continues to receive either carer allowance or double orphan pension under the
Social Security Act 1991, the Part A rate of family tax benefit payable under the Family Assistance Act as amended by this Act to the individual from time to time on or after that date is a rate equal to:
(a)
unless paragraph (b) applies - the Part A rate of family tax benefit that would be payable to the individual under that Act as so amended; or
(b)
if the rate referred to in paragraph (a) is less than the rate (the
saved rate
) that would have been the individual's minimum family allowance rate under the
Social Security Act 1991 immediately before 1 July 2000 if that rate were worked out having regard only to those FTB children of the individual in respect of whom the individual continues to receive either carer allowance or double orphan pension under that Act - the saved rate.
(3)
If, at any time, an individual begins to receive a Part A rate of family tax benefit calculated in accordance with paragraph (2)(a), the person ceases, with effect from that time, to have any entitlement, at any time thereafter, to a Part A rate of family tax benefit at the saved rate.
Schedule 6 - Transitional provisions associated with the establishment of a scheme for the payment of child care benefit
1 Definitions
1
In this Schedule, unless the contrary intention appears:
approved child care service
has the meaning given in subsection 3(1) of the Family Assistance Administration Act.
childcare assistance
means fee reductions made in respect of care provided before:
(a)
1 July 2000; or
(b)
on or after 1 July 2000, as provided for in this Schedule;
in compliance with:
(c)
the fee relief guidelines; or
(d)
a Commonwealth program, administered by the Commonwealth Department of Family and Community Services or the Commonwealth Services Delivery Agency, that provided for fee reductions, generally known as ``childcare assistance'' or ``fee relief''.
childcare assistance agreement
means an agreement, to which the Commonwealth is a party:
(a)
entered into under section 20 of the
Child Care Act 1972; or
(b)
any other agreement, not being an agreement entered into under that Act;
that is made to provide grants to reimburse the costs of fee reductions.
childcare assistance scheme
means the Commonwealth program under which childcare assistance is paid.
child care rebate
means child care rebate payable under the Childcare Rebate Act 1993.
data collection form
means a written request to an individual from the Secretary for information relating to matters associated with the establishment of a scheme for payment of child care benefit.
family allowance
means family allowance payable under the Social Security Act 1991.
Family Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
Family Assistance Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
family assistance law
has the same meaning as in subsection 3(1) of the Family Assistance Administration Act.
fee relief guidelines
means the Childcare Assistance (Fee Relief) Guidelines made under section 12A of the Child Care Act 1972 as in force on 30 June 2000.
Secretary
, in relation to an act or thing done, or a decision or determination made, under particular legislation, means the Secretary of the Department administered by the Minister administering that legislation.
2 Special rules relating to individual entitled to childcare assistance before 1 July 2000
(1)
If, before 1 July 2000:
(a)
a decision has been made in respect of an individual and a child with the effect that the individual is entitled to childcare assistance in respect of the child; and
(b)
the individual has returned a completed data collection form to the Secretary by the date specified in the form;
then:
(c)
section
42 of the Family Assistance Act as amended by this Act and in force on 1 July 2000, is treated as being in force when the completed data collection form was returned; and
(d)
the individual is taken to be conditionally eligible under that section, as so in force, at the time that the form was returned.
(2)
If:
(a)
determinations of conditional eligibility, CCB %, a weekly limit of hours and schooling %, would, apart from this subitem, come into force on 1 July 2000 in respect of the individual and the child; and
(b)
the individual has not remained entitled to childcare assistance in respect of the child for the period commencing on the day the data collection form is returned to the Secretary and ending on 30 June 2000;
the determinations do not come into force on 1 July 2000.
Note:
Determinations of conditional eligibility, a weekly limit of hours, CCB % and schooling % are made under sections 50F, 50H, 50J and 50K respectively of the Family Assistance Administration Act as amended by this Act and in force on 1 July 2000.
(3)
If:
(a)
a requirement has been imposed before 1 July 2000 under the childcare assistance scheme in respect of the child of the individual; and
(b)
the requirement is that the child comply with the immunisation requirement; and
(c)
the child does not meet the requirement by 1 July 2000; and
(d)
immediately before 1 July 2000, less than 63 days have elapsed since the requirement was imposed;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(e)
section
57E of the Family Assistance Administration Act as so amended, and paragraph 42(1)(c) of the Family Assistance Act as so amended, are treated as having been in force when the requirement was imposed; and
(f)
the requirement is taken to have been imposed, at the time when it was imposed, under section
57E of the Family Assistance Administration Act as so amended and as so in force; and
(g)
the requirement is taken to have been imposed, at the time when it was imposed, for the purposes of paragraph 42(1)(c) of the Family Assistance Act as so amended and as so in force.
(4)
If, immediately before 1 July 2000, the child is meeting the immunisation requirements set out in the childcare assistance scheme, then, on 1 July 2000, the child is taken to meet the immunisation requirements in section
6 of the Family Assistance Act, as amended by this Act and in force on that day.
3 Special rules if individual claiming child care rebate and receiving family allowance returns data collection form
(1)
If:
(a)
an individual makes a claim for childcare rebate in respect of a child within the period commencing on 1 January 1998 and ending on 30 June 2000; and
(b)
immediately before 1 July 2000, the individual is receiving family allowance in respect of the child; and
(c)
the individual returns a completed data collection form to the Secretary by the date specified in the form;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(d)
paragraph
49B(a) of the Family Assistance Administration Act, as so amended is treated as being in force when the completed data collection form is returned; and
(e)
the individual is taken to have made an effective claim under that paragraph, as so in force, at the time that the form was returned.
(2)
If, immediately before 1 July 2000, the child is meeting the immunisation requirements set out in the
Childcare Rebate Act 1993, then, on I July 2000, the child is taken to meet the immunisation requirements in section
6 of the Family Assistance Act as amended by this Act and in force on that day.
4 Individuals may make a claim for child care benefit by fee reduction before 1 July 2000
4
If an individual makes a claim for child care benefit by fee reduction before 1 July 2000, then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(a)
paragraph
49B(a) of the Family Assistance Administration Act, as so amended is treated as being in force when the claim is made; and
(b)
the claim is taken to have been made, at the time that it was made, under that paragraph of that Act as so amended and in force.
5 Minimum CCB % if individual objects to use of tax file number given previously
(1)
This item applies to an individual referred to in subitems 2(1) and 3(1).
(2)
If:
(a)
the tax file number of an individual to which this item applies has been provided to the Secretary:
(i)
by the individual; or
(ii)
by the partner of the individual; or
(iii)
by the Commissioner of Taxation on the authority of the individual; under:
(iv)
a provision of the Social Security Act 1991 for a purpose related to a claim for, or entitlement to, family allowance; or
(v)
the childcare assistance scheme for a purpose related to a claim for, or entitlement to, childcare assistance; and
(b)
the individual returns to the Secretary a completed data collection form by the date specified in the form; and
(c)
in that form, the individual objects to the use of the tax file number previously provided to the Secretary;
a determination of CCB % under section 50J of the Family Assistance Administration Act as amended by this Act and that would come into force on 1 July 2000 in respect of the individual, is to be calculated under Schedule 2 to the Family Assistance Act using the minimum taxable income % as the taxable income %.
6 Special rules relating to status of a child
(1)
If:
(a)
immediately before 1 July 2000, a decision is in force under the childcare assistance scheme that a child is taken to be a dependent child; and
(b)
either:
(i)
under item 2, an individual is taken to be conditionally eligible for child care benefit by fee reduction in respect of the child; or
(ii)
under item 3, an individual is taken to have made an effective claim for child care benefit by fee reduction in respect of the child; or
(iii)
under item 4, an individual makes a claim for child care benefit by fee reduction in respect of the child;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(c)
the Family Assistance Act as so amended is treated as having been in force when the decision under paragraph (a) was made; and
(d)
the decision that the child is taken to be a dependent child is taken to have been a determination that the child is an FTB child of the individual made, at the time referred to in subitem (2), under subsection
42(2) of the Family Assistance Act as so amended and in force.
(2)
The determination referred to in paragraph (1)(d) is taken to have been made on:
(a)
in the case of subparagraph (b)(i) - the day the individual is taken to be conditionally eligible immediately before the time the individual is taken to be so conditionally eligible; and
(b)
in the case of subparagraph (b)(ii) - the day the effective claim is taken to have been made; and
(c)
in the case of subparagraph (b)(iii) - the day the claim is made.
7 Special rules relating to residence
(1)
If:
(a)
immediately before 1 July 2000, a decision is in force under the childcare assistance scheme that an individual is taken to be a resident for childcare assistance purposes with effect that the individual is a resident on 1 July 2000; and
(b)
either:
(i)
under item 2, the individual is taken to be conditionally eligible for child care benefit by fee reduction; or
(ii)
under item 3, the individual is taken to have made an effective claim for child care benefit by fee reduction; or
(iii)
under item 4, an individual makes a claim for child care benefit by fee reduction;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(c)
the Family Assistance Act as so amended is treated as having been in force when the decision under paragraph (a) was made; and
(d)
the decision that the individual is a resident is taken to have been a determination made, at the time referred to in subitem (2), under section
8 of the Family Assistance Act as so amended and in force.
(2)
The determination is taken to have been made on:
(a)
in the case of subparagraph (b)(i) - the day the individual is taken to be conditionally eligible, immediately before the time the individual is taken to be so conditionally eligible; and
(b)
in the case of subparagraph (b)(ii) - the day the effective claim is taken to have been made; and
(c)
in the case of subparagraph (b)(iii) - the day the claim is made.
8 Special rules relating to tax file numbers provided for another purpose
8
If:
(a)
the tax file number of an individual has been provided to the Secretary:
(i)
by the individual; or
(ii)
by the partner of the individual; or
(iii)
by the Commissioner of Taxation on the authority of the individual; under:
(iv)
a provision of the Social Security Act 1991 for a purpose related to a claim for, or entitlement to, family allowance; or
(v)
the childcare assistance scheme; and
(b)
the individual returns to the Secretar
y a completed data collection form by the date specified in the form; and
(c)
in that form, the individual does not object to the use of the tax file number previously so provided to the Secretary;
that tax file number is taken to have been provided for the purposes of section 50B of the Family Assistance Administration Act, as amended by this Act and in force on 1 July 2000.
9 Special rules relating to TFN requirements
(1)
If:
(a)
an individual has been requested, before 1 July 2000, under section
75 of the
Social Security (Administration) Act 1999 or under the childcare assistance scheme, to provide a tax file number in relation to a claim for, or the receipt of, family allowance or childcare assistance; and
(b)
the individual has not, before that date, provided that tax file number; and
(c)
immediately before 1 July 2000, less than 28 days have elapsed since the request to provide that number;
then, for the purposes of the Family Assistance Administration Act as amended by this Act and the Family Assistance Act as so amended:
(d)
the Family Assistance Act as so amended is treated as having been in force when the request was made; and
(e)
the request is taken to have been made, at the time when it was made, under section
57B of the Family Assistance Act as so amended and in force.
(2)
If, under a decision made under the childcare assistance scheme, an individual has been exempted, before 1 July 2000, from having to meet the tax file number requirements of the scheme, then, for the purposes of the Family Assistance Administration Act, as amended by this Act:
(a)
that Act as so amended is treated as having been in force when the decision that the individual is exempt was made; and
(b)
the decision is taken to have been made, at the time the exemption under the childcare assistance scheme was given, under subsection 57B(6) of that Act as so amended and in force.
10 Special rules relating to a childcare assistance agreement in force immediately before 1 July 2000
Agreement to which this item relates
(1)
This item applies to a childcare assistance agreement that was in force immediately before 1 July 2000.
Agreement ceases to operate for grants for fee reductions after 1 July 2000 except in certain circumstances
(2)
Except in the limited circumstances set out in subitem (3) or (4), on and after 1 July 2000, an agreement to which this item applies does not operate, in respect of a grant to reimburse the costs of fee reductions, in relation to care provided on or after 1 July 2000.
Matters in respect of which agreement continues to operate
(3)
An agreement to which this item applies does operate, in respect of a grant to reimburse the costs of fee reductions, in relation to a session of care that started before 1 July 2000 and continued on that date.
Note 1:
Item 17 continues access to fee reductions under the childcare assistance scheme for care provided during a session of care that started immediately before 1 July 200 and continued on that date.
Note 2: In respect of care provided on 1 July 2000, this provision continues the agreement and, in particular, continues the obligations and responsibilities imposed under the agreement, in relation to that care.
(4)
An agreement to which this item applies does operate, in respect of a grant to reimburse the costs of fee reductions, in relation to care provided on or after 1 July 2000, if the care is provided by an outside school hours care service during the period of a school vacation that starts before 1 July 2000 and continues on and after that day.
Note 1:
Item 18 continues access to fee reductions under the childcare assistance scheme for vacation care provided on and after 1 July 2000 if the vacation started before 1 July 2000.
Note 2: In respect of care provided on and after 1 July 2000, this provision continues the agreement and, in particular, continues the obligations and responsibilities imposed under the agreement, in relation to that care.
(5)
On and after 1 July 2000, an agreement to which this item applies does operate, in respect of a grant to reimburse the costs of fee reductions, in relation to care provided before 1 July 2000.
Note:
In respect of care provided before 1 July 2000, this provision continues the agreement and, in particular, continues the obligations and responsibilities imposed under the agreement, in relation to that care.
(6)
On and after 1 July 2000, an agreement to which this item applies operates for the purposes of other grants (if any) provided for in the agreement.
Commonwealth under no obligation to make further grants under agreement
(7)
The operation of an agreement to which this item applies is limited in that the Commonwealth is under no obligation, on or after 1 July 2000, to make any further grants under the agreement to reimburse the costs of fee reductions.
Child Care Act, guidelines etc. to be treated as in force
(8)
For the purposes of an agreement to which this item applies in so far as it relates to a grant to reimburse the costs of fee reductions, in relation to care provided as mentioned in subitems (3), (4) and (5):
(a)
on and after 1 July 2000, the
Child Care Act 1972 is treated as being in force as if the amendments made by Schedule 3 to the
A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 1) 1999 had not been made; and
(b)
if:
(i)
a handbook, guidelines or other document that relates to fee reductions created by a Commonwealth Department with the responsibility for administering the agreement is referred to in the agreement; and
(ii)
the handbook, guidelines or other document operates on 30 June 2000; the handbook, guidelines or other document is treated as operating on and after 1 July 2000.
11 Childcare assistance agreement services to become approved child care services under section 195 of the Family Assistance Administration Act
Long day care services
(1)
If:
(a)
a childcare assistance agreement is in force in respect of a long day care service immediately before 1 July 2000; and
(b)
the service is not, immediately before 1 July 2000, subject to a suspension under paragraph 4E(1)(d) of the
Child Care Act 1972;
the service is treated as being an approved centre based long day care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Family day care services
(2)
If a childcare assistance agreement is in force in respect of a family day care service immediately before 1 July 2000, the service is treated as being an approved family day care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Occasional care services
(3)
If a childcare assistance agreement is in force in respect of an occasional care service immediately before 1 July 2000, the service is treated as being an approved occasional care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Outside school hours care services
(4)
If a childcare assistance agreement is in force in respect of an outside school hours care service immediately before 1 July 2000, the service is treated as being an approved outside school hours care service under section 195 of the Family Assistance Administration Act as amended by this Act with effect from 1 July 2000.
Requirement of subsection 195(3) of the Family Assistance Administration Act need not be complied with
(5)
For an approved child care service referred to in subitems (1) to (4) (inclusive), the Secretary does not have to comply with the requirement in subsection
195(3) of the Family Assistance Administration Act as amended by this Act to give a certificate in respect of the service.
If long day care services subject to a sanction (other than suspension) on 30 June 2000, sanction carries over to child care benefit scheme
(6)
If a long day care service is, immediately before 1 July 2000, subject to a sanction, other than suspension, under section 4E of the
Child Care Act 1972, the service is treated, on and after 1 July 2000, as being subject to the sanction under section 200 of the Family Assistance Administration Act as amended by this Act.
12 Special condition of continuing approval of approved child care services referred to in item 11
12
If:
(a)
a service is treated, under item 11, as an approved child care service; and
(b)
item 10 applies to an agreement in respect of the service;
it is a condition for the continued approval of the approved child care service under section 195 of the Family Assistance Administration Act, as amended by this Act and in force on 1 July 2000, that the service not contravene an obligation imposed on the service under the agreement in respect of a grant to reimburse the costs of fee reductions, in relation to care mentioned in subitems 10(3), (4) and (5).
13 Debts under childcare assistance agreements to be recoverable under the Family Assistance Administration Act
(1)
If:
(a)
an amount (the
debt
), whether described as a debt or not, is to be repaid:
(i)
under a childcare assistance agreement to which item 10 applies; or
(ii)
under section 20B of the Child Care Act 1972 as in force immediately before 1 July 2000 in respect of an advance on account of a grant to reimburse the costs of fee reductions made for children; and
(b)
the debt relates to a grant to reimburse the costs of fee reductions for care mentioned in subitem (10)(3), (4) or (5);
the debt, whether it arises before, or on or after, 1 July 2000 is recoverable on or after 1 July 2000 under subsection 82(2) of the Family Assistance Administration Act asamended by this Act and in force on 1 July 2000.
(2)
If the debt has been partially recovered under the childcare assistance scheme before 1 July 2000, the balance of the debt may be recovered under subsection
82(2) of the Family Assistance Administration Act as amended by this Act and in force on and after 1 July 2000.
14 Minister may terminate childcare assistance agreements
(1)
If:
(a)
a childcare assistance agreement was in force immediately before 1 July 2000; and
(b)
the agreement relates solely to a grant to reimburse the costs of fee reductions;
the Minister may, on or after 1 July 2000, determine, in writing, that the agreement is ended from a date specified in the determination.
(2)
The determination has effect accordingly.
15 Old sanctions to be taken into account by Secretary when considering applications under section 194 of the Family Assistance Administration Act
15
If:
(a)
a person applies under section 194 of the Family Assistance Administration Act as amended by this Act for approval of a child care service as an approved child care service for the purposes of the family assistance law; and
(b)
the person, when operating a child care service under the childcare assistance scheme, was subject to sanctions in respect of the service;
the Secretary may refuse to approve the service under subsection 195(2) of that Act as amended by this Act.
16 Special rules relating to claims for childcare assistance
Claims for childcare assistance that are undetermined as at 1 July 2000
(1)
If:
(a)
a person lodged a claim for childcare assistance in respect of care provided before 1 July 2000; and
(b)
that claim was not determined before that date;
the claim is to be determined after 1 July 2000 under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
Claims lodged after 1 July 2000
(2)
Despite the termination of the childcare assistance scheme on 1 July 2000, a person may lodge a claim for childcare assistance before 8 July 2000 if the claim relates to care provided no more than 7 days before the claim is lodged. The claim is to be determined after 1 July 2000 under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
17 Special rules relating to sessions of care
17
If a session of care, within the meaning of the childcare assistance scheme, provided by a child care service starts before 1 July 2000 and continues on 1 July 2000, a claim for childcare assistance in respect of the session is to be determined under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
18 Special rules relating to vacation care
18
If a period of vacation care, within the meaning of the childcare assistance scheme, provided by a child care service starts before 1 July 2000 and continues on and after 1 July 2000, a claim for childcare assistance in respect of this care is to be determined under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
19 Special rules relating to registered carers under section 49 of the Childcare Rebate Act
Most registered carers to be treated as registered carers under the child care benefits scheme
(1)
If:
(a)
an individual was a registered carer under section 49 of the
Childcare Rebate Act 1993 immediately before 1 July 2000; and
(b)
the individual did not do any of the following things immediately before 1 July 2000:
(i)
operate a child care service that was the subject of a childcare assistance agreement;
(ii)
operate a child care service that was receiving financial assistance from the Commonwealth in connection with its operational costs, where the provision of that assistance is administered by the Commonwealth Department of Family and Community Services;
(iii)
provide child care under a contract with a family day care service that was the subject of a childcare assistance agreement;
the individual is to be treated as being approved as a registered carer under section 210 of the Family Assistance Administration Act, as amended by this Act and in force on 1 July 2000, with effect from that date.
Applications for registration as a carer under section 49 of the Childcare Rebate Act that are undetermined as at 1 July 2000
(2)
If:
(a)
a person or body lodged an application for registration as a carer under section 49 of the
Childcare RebateAct 1993 before 1 July 2000; and
(b)
that application was not determined before that date;
then:
(c)
the application is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if that Act, as so in force, had continued in force; and
(d)
if the registration (if any) relates to a person who is not an individual, the registration remains in force only in relation to care provided before 1 July 2000, or on or after 1 July 2000 as mentioned in subitems 20(3) and (4); and
(e)
for the purposes of subitem (1), if the registration (if any) relates to a person who is an individual, the individual is to be treated as being a registered carer before 1 July 2000.
Applications for registration as a carer under section 49 of the Childcare Rebate Act lodged after 1 July 2000
(3)
Despite the repeal of the
Childcare Rebate Act 1993 on 1 July 2000
, a person or body may apply, on or after 1 July 2000 and before 1 January 2001, for registration as a carer under section 49 of that Act if the application relates to care provided as mentioned in subitem 20(2), (3) or (4). The application is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
20 Special rules relating to claims for child care rebate
Claims for child care rebate that are undetermined as at 1 July 2000
(1)
If:
(a)
a person lodged a claim for child care rebate before 1 July 2000; and
(b)
that claim was not determined before that date;
the claim is to be determined under the Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
Claims for child care rebate made after 1 July 2000 for care provided before 1 July 2000
(2)
Despite the repeal of the
Childcare Rebate Act 1993 on 1 July 2000, a person may lodge a claim for child care rebate on or after 1 July 2000 and before 1 January 2001 if the claim relates to care provided during a period commencing 2 years before the claim was lodged and ending on 30 June 2000. The claim is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
(3)
If a session of care provided by a child care service starts before 1 July 2000 and continues on 1 July 2000, a claim for child care rebate in respect of the session is to be determined under the
Childcare Rebate Act 1993 as in force immediately before 1 July 2000 as if the Act, as so in force, had continued in force.
(4)
If a period of vacation care provided by an outside school hours care service starts before 1 July 2000 and continues on and after 1 July 2000, a claim for child care rebate in respect of this care is to be determined under the
Childcare Rebate Act 1993 as in force immediately before 1 July 2000 as if the Act, as so in force, had continued in force.
21 Special rules relating to registration of families
Applications for registration of a family under section 19 of the Childcare Rebate Act that are undetermined as at 1 July 2000
(1)
If:
(a)
an individual lodged an application for registration of a family under section 19 of the
Childcare Rebate Act 1993 before 1 July 2000; and
(b)
that application was not determined before that date;
the application is to be determined under the Childcare Rebate Act 1993, as in force before 1 July 2000, as if that Act, as so in force, had continued in force.
Applications for registration of a family under section 19 of the Childcare Rebate Act lodged after 1 July 2000
(2)
Despite the repeal of the
Childcare Rebate Act 1993 on 1 July 2000, an individual may apply, on or after 1 July 2000 and before 1 January 2001, for a family to be registered under section 19 of that Act if the application relates to care provided as mentioned in subitem 20(2), (3) or (4). The application is to be determined under the
Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
22 Health Insurance Commission's functions and powers in relation to child care rebate to continue for certain matters
(1)
The Health Insurance Commission must deal with the following matters:
(a)
applications referred to in item 19;
(b)
claims referred to in item 20;
(c)
applications referred to in item 21;
(d)
matters arising in respect of those applications and claims (for example, applications for review);
under the Health Insurance Commission Act 1973 and the Childcare Rebate Act 1993 as if the following amendments to those Acts had not occurred:
(e)
the amendments of the
Health Insurance Commission Act 1973 by Schedule 8 to the
A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999;
(f)
the repeal of the
Childcare Rebate Act 1993.
(2)
In respect of the Commission's powers under subitem (1), the Commission may, under subsection 55(3) of the
Childcare Rebate Act 1993 as continued in force, extend the period in which an application may be made for reconsideration of a decision listed in section 53 of that Act, but only until 30 June 2001.
23 Other transitional matters may be provided for in regulations
23
The Governor-General may make regulations, not inconsistent with this Schedule, the Family Assistance Administration Act and the Family Assistance Act prescribing other transitional matters, apart from transitional matters provided for in this Schedule, that are necessary or convenient for carrying out or giving effect to the introduction of child care benefit under the family assistance law.
S 69 formerly read:
Special provisions relating to child care benefit
69
For the purposes of this Part, a reference to an amount being paid to an approved child care service includes a reference to an amount that, at the time when it was paid, was paid to an approved child care service even if:
(a)
the service is no longer approved; or
(b)
the service no longer operates the service concerned.
Division 2 - Amounts recoverable under this Act
SECTION 70
70
Debts due to the Commonwealth
If an amount has been paid by way of family assistance, one-off payment to families, a payment under section
67EB, a payment under section
205A or
205C, economic security strategy payment to families, back to school bonus, single income family bonus, a clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021 , the amount is a debt due to the Commonwealth only to the extent to which a provision of:
(a)
this Act; or
(b)
the
Data-matching Program (Assistance and Tax) Act 1990;
expressly provides that it is.
History
S 70 amended by No 26 of 2021, s 3 and Sch 1 item 4, by inserting "or 205C", effective 27 March 2021. For application provisions, see note under s 205C.
S 70 amended by No 97 of 2020, s 3 and Sch 1 item 5, by substituting ", 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021" for "or 2020 economic support payment", effective 14 November 2020.
S 70 amended by No 22 of 2020, s 3 and Sch 4 item 5, by substituting ", ETR payment or 2020 economic support payment" for "or ETR payment", effective 25 March 2020.
S 70 amended by No 22 of 2017, s 3 and Sch 1 items 94 and 95, by substituting "section 67EB" for "section 219Q, subsection 219QA(2), section 219QC or subsection 219QD(2), a payment of an enrolment advance under section 219RA" and "section 205A" for "section 219RD", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 70 amended by No 50 of 2012, s 3 and Sch 1 item 5, by substituting ", a clean energy advance or ETR payment" for "or a clean energy advance", effective 27 May 2012.
S 70 amended by No 141 of 2011, s 3 and Sch 2 item 6, by substituting ", single income family bonus or a clean energy advance" for "or single income family bonus", effective 14 May 2012.
S 70 amended by No 25 of 2011, s 3 and Sch 1 item 26, by substituting ", subsection 219QA(2), section 219QC or subsection 219QD(2)," for "or subsection 219QA(2),", applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 70 amended by No 34 of 2010, s 3 and Sch 1 item 2, by inserting "a payment under section 219Q or subsection 219QA(2), a payment of an enrolment advance under section 219RA, a payment under section 219RD," after "one-off payment to families,", effective 13 April 2010.
S 70 amended by No 4 of 2009, s 3 and Sch 3 item 6, by substituting ", economic security strategy payment to families, back to school bonus or single income family bonus" for "or economic security strategy payment to families", effective 18 February 2009.
S 70 amended by No 131 of 2008, s 3 and Sch 3 item 7, by substituting ", one-off payment to families or economic security strategy payment to families" for "or one-off payment to families", effective 1 December 2008.
S 70 amended by No 60 of 2004, s 3 and Sch 1 item 5, by inserting "or one-off payment to families" after "family assistance", effective 26 May 2004.
SECTION 71
Debts in respect of family assistance other than CCS, ACCS and family tax benefit advance
No entitlement to amount
71(1)
If:
(a)
an amount has been paid to a person by way of family tax benefit, stillborn baby payment or single income family supplement (the
assistance
) in respect of a period or event; and
(b)
the person was not entitled to the assistance in respect of that period or event;
the amount so paid is a debt due to the Commonwealth by the person.
History
S 71(1) amended by No 96 of 2014, s 3 and Sch 9 item 17, by substituting "or single income family supplement" for ", single income family supplement or schoolkids bonus" in para (a), effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading.
S 71(1) amended by No 70 of 2013, s 3 and Sch 2A item 42, by substituting "stillborn baby payment" for "baby bonus" in para (a), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
S 71(1) amended by No 49 of 2012, s 3 and Sch 1 item 44, by omitting ", maternity immunisation allowance" after "baby bonus" in para (a), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 71(1) amended by No 50 of 2012, s 3 and Sch 2 item 15, by substituting ", single income family supplement or schoolkids bonus" for "or single income family supplement" in para (a), effective 27 May 2012.
S 71(1) amended by No 141 of 2011, s 3 and Sch 8 item 12, by substituting ", maternity immunisation allowance or single income family supplement" for "or maternity immunisation allowance" in para (a), applicable in relation to the 2012-13 income year and later income years.
S 71(1) amended by No 82 of 2007, s 3 and Sch 6 item 35, by substituting "baby bonus" for "maternity payment" in para (a), applicable to claims for payment of baby bonus made on or after 1 July 2007. If: (a) a claim for payment of maternity payment is made before 1 July 2007; and (b) the Secretary has not determined the claim by that time;the claim is taken to be a claim for payment of baby bonus.
S 71(1) amended by No 59 of 2004, s 3 and Sch 2 item 28, by substituting "maternity payment" for "maternity allowance" in para (a), effective 1 July 2004. No 59 of 2004, s 3 and Sch 2 item 29, contains the following saving provision:
29 Saving provision for maternity allowance payments
29
Despite the amendment of section 71 of the A New Tax System (Family Assistance) (Administration) Act 1999, that section applies to an amount paid by way of maternity allowance before, on or after the commencement of this Division as if the amendment had not been made.
S 71(1) amended by No 47 of 2001, s 3 and Sch 3 item 2, by substituting "If:" for "Subject to subsection (2), if:", effective 1 July 2001.
Overpayment
71(2)
If:
(a)
an amount (the
received amount
) has been paid to a person by way of assistance; and
(b)
the received amount is greater than the amount (the
correct amount
) of assistance that should have been paid to the person under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
History
S 71 substituted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69. S 71 formerly read:
Debts arising under this Act
71(1)
Subject to subsection (2), if:
(a)
an amount has been paid to a person by way of family assistance in respect of a period or event; and
(b)
the person was not entitled to the family assistance in respect of that period or event;
the amount so paid is a debt due to the Commonwealth by the person.
71(2)
If:
(a)
child care benefit is paid on behalf of a person to an approved child care service in relation to an FTB child of the person or the person's partner; and
(b)
the payment is in respect of a period after the service is no longer providing care for the child;
the amount so paid:
(c)
is a debt due to the Commonwealth by the service; and
(d)
is not a debt due to the Commonwealth by the person under subsection (1).
71(3)
Subject to subsection (4), if:
(a)
an amount has been paid to a person by way of an instalment of family assistance; and
(b)
another amount (the
later amount
) is paid to the person in respect of the same instalment; and
(c)
the later amount is not a payment of arrears; and
(d)
the later amount would not otherwise be a debt due to the Commonwealth;
the later amount is a debt due to the Commonwealth by the person.
71(4)
If the first amount and the later amount were both paid to the same approved child care service on a person's behalf, the later amount is a debt due to the Commonwealth by the service, not the person.
71(5)
If:
(a)
an amount (the
received amount
) has been paid to a person by way of family assistance; and
(b)
the received amount is greater than the amount (the
correct amount
) of family assistance that should have been paid to the person under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
71(6)
If:
(a)
an individual knowingly makes a false statement or misrepresentation to:
(i)
an approved child care service; or
(ii)
an officer; and
(b)
an amount of child care benefit is paid for a session of care provided by the service to an FTB child of the individual or the individual's partner; and
(c)
because of the false statement or false representation:
(i)
the service is eligible for child care benefit for the session of care; or
(ii)
the rate of child care benefit for the session of care is an amount certified by the service under subsection 71(1) or (2) of the Family Assistance Act; or
(iii)
the rate of child care benefit for the session of care is an amount determined under subsection 71(4) of the Family Assistance Act;
the difference between the amount paid and the amount that would have been paid if the individual had not made the statement or representation to the service is a debt due to the Commonwealth by the individual.
71(7)
For the purposes of subsection (6), the amount that would have been paid if the individual had not made the statement or representation to the service may be nil.
71(8)
If:
(a)
an approved child care service gives a certificate under subsection 71(1) of the Family Assistance Act in relation to sessions of care provided by the service to an FTB child of an individual on the basis that:
(i)
the child is at risk of serious abuse or neglect; or
(ii)
the individual is experiencing hardship of a kind specified in a determination in force under subsection 48(1) of that Act; and
(b)
the service is not satisfied, at the time when it gives the certificate, that that basis exists;the difference between the amounts paid to the individual and the amounts that would have been paid to the individual if the service had not given the certificate is a debt due to the Commonwealth by the service.
71(9)
If:
(a)
an approved child care service knowingly makes a false statement or false representation to the Secretary or an officer; and
(b)
a determination is made, in reliance on the statement or representation, under subsection 71(4) of the Family Assistance Act in relation to an FTB child of an individual;
the difference between the amounts paid under the determination and the amounts that would have been paid if the service had not made the statement or representation is a debt due to the Commonwealth by the service.
SECTION 71A
Debts arising in respect of family tax benefit advances
No entitlement to advance
71A(1)
If:
(a)
a family tax benefit advance has been paid to an individual; and
(b)
the individual was not entitled to the advance;
the amount so paid is a debt due to the Commonwealth by the individual.
Overpayment
71A(2)
If:
(a)
an amount (the
received amount
) of family tax benefit advance has been paid to an individual; and
(b)
the received amount is greater than the amount (the
correct amount
) of family tax benefit advance that should have been paid to the individual under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.
Debt arising during the repayment period for a family tax benefit advance
71A(3)
If:
(a)
an individual is paid a family tax benefit advance; and
(b)
the repayment period for the advance has not expired; and
(c)
one of the following occurs:
(i)
the individual ceases to be entitled to be paid family tax benefit by instalment;
(ii)
the individual's Part A rate becomes nil (before reduction under clause 5 or 25A of Schedule 1 to the Family Assistance Act);
the amount of unrepaid family tax benefit advance becomes a debt due to the Commonwealth by the individual.
Debt arising due to variation or review after the repayment period for a family tax benefit advance has expired
71A(4)
If:
(a)
an individual is paid a family tax benefit advance; and
(b)
the individual's Part A rate has been reduced under clause
5 or
25A of Schedule
1 to the Family Assistance Act to repay the advance; and
(c)
the repayment period for the advance has expired; and
(d)
due to a variation in a determination, or a variation or substitution of a decision on review (other than a variation under subsection
28(2) or
(6)), the reduction in the individual's Part A rate under clause
5 or
25A of Schedule
1 to the Family Assistance Act has not been sufficient to repay the advance; and
(e)
at the time of the variation of the determination, or the variation or substitution of the decision on review:
(i)
the individual is not entitled to be paid family tax benefit by instalment; or
(ii)
the individual's Part A rate is nil (before reduction under clause 5 or 25A of Schedule 1 to the Family Assistance Act);
the amount of the family tax benefit advance left unrepaid as a result of the variation of the determination, or the variation or substitution of the decision on review, becomes a debt due to the Commonwealth by the individual.
Note:
If the individual is entitled to be paid family tax benefit by instalment and has a Part A rate greater than nil, the unrepaid amount of the advance is to be repaid by reductions in the individual's Part A rate (see clause 51 of Schedule 1 to the Family Assistance Act).
Debt arising due to variation under subsection 28(2) or (6)
71A(5)
If:
(a)
an individual is paid a family tax benefit advance; and
(b)
the individual's Part A rate has been reduced under clause
5 or
25A of Schedule
1 to the Family Assistance Act to repay the advance; and
(c)
due to a variation in a determination of the individual's entitlement to family tax benefit made under subsection
28(2) or
(6), the reduction in the individual's Part A rate under clause
5 or
25A of Schedule
1 to the Family Assistance Act has not been sufficient to repay the advance;
the amount of the family tax benefit advance left unrepaid as a result of the variation of the determination becomes a debt due to the Commonwealth by the individual.
71A(6)
If a debt is created under subsection (5) and the Secretary varies the determination of the individual's entitlement to family tax benefit under subsection
28(3) or
(4), the debt is taken never to have been created.
Note:
If, after the variation, the individual's Part A rate was not sufficient to repay the advance, the unrepaid amount of the advance is to be repaid either by reductions in the individual's Part A rate (see clauses 48 and 51 of Schedule 1 to the Family Assistance Act) or as a debt under subsection (3) or (4).
Debt arising due to determination under clause 45 of Schedule 1 to the Family Assistance Act
71A(7)
If:
(a)
an individual is paid a family tax benefit advance; and
(b)
the Secretary determines under clause
45 of Schedule
1 to the Family Assistance Act that the amount of the advance that is unrepaid is to be a debt;
the amount of the family tax benefit advance becomes a debt due to the Commonwealth by the individual.
Meaning of
FTB advance debt
71A(8)
The debt due to the Commonwealth under subsection (1), (2), (3), (4), (5) or (7) is an
FTB advance debt
.
History
S 71A substituted by No 53 of 2011, s 3 and Sch 1 item 14, applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading. S 71A formerly read:
SECTION 71A Debts arising in respect of family tax benefit advances
71A(1)
If:
(a)
an individual receives an amount by way of family tax benefit advance; and
(b)
on a particular day, before the end of the family tax benefit advance period worked out in accordance with section 34:
(i)
the individual ceasesto be entitled to be paid family tax benefit by instalment; or
(ii)
by virtue of the operation of subclause 5(2) or 25A(2) of Schedule 1 to the Family Assistance Act, the individual's Part A rate is no longer to be reduced by the FTB advance rate;
the amount by which the family tax benefit advance exceeds the reduction amount calculated in accordance with subsection (2) becomes a debt due to the Commonwealth by the person.
71A(2)
For the purposes of subsection (1), the reduction amount in relation to an individual is an amount calculated in accordance with the formula:
FTB advance rate
365 |
× |
Number of reduction days |
|
where:
number of reduction days
means the number of days in the individual's family tax benefit advance period worked out under section 34 during which the individual's Part A rate was reduced under subclause 5(1) or 25A(1) of Schedule 1 to the Family Assistance Act.
History
S 71A inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71B
Debts in respect of CCS or ACCS - no entitlement
71B(1)
If:
(a)
an amount is paid to an individual (the
recipient
) by way of CCS for one or more sessions of care, but the recipient is not entitled to be paid CCS for the sessions of care; or
(b)
an amount is paid to an individual (the
recipient
) by way of a kind of ACCS for one or more sessions of care, but the recipient is not entitled to be paid that kind of ACCS for the sessions of care; or
(c)
an amount is paid to a provider (the
recipient
) by way of ACCS (child wellbeing) for a session of care provided to a child, but the recipient is not entitled to be paid ACCS (child wellbeing) for the session of care;
the amount is a debt due to the Commonwealth by the recipient.
71B(2)
If:
(a)
a payment is made under Division
5 of Part
3A to a financial institution for the credit of an account kept with the institution (an
incorrect account
); and
(b)
the Secretary is satisfied that the amount was intended to be paid for the credit of an account kept in the name of a person who is not the person, or one of the persons, in whose name the incorrect account is kept;
an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name the incorrect account is kept.
History
S 71B substituted by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71B formerly read:
SECTION 71B Debts where no entitlement or where enrolment advance wrongly paid
71B(1)
If:
(a)
an approved child care service is required under section 219B to pass an amount on to an individual (the
recipient
) in respect of one or more sessions of child care provided by the service to a child, but the recipient was not entitled to child care benefit in respect of the session or sessions of care; or
(b)
an approved child care service is required under section 219BA to pass an amount on to itself (the
recipient
) in respect of one or more sessions of child care provided by the service to a child at risk, but the recipient was not entitled to child care benefit in respect of the session or sessions of care; or
(c)
an amount has been paid to a person (the
recipient
) by way of child care benefit in respect of a period, but the recipient was not entitled to child care benefit in respect of that period; or
(d)
an approved child care service is required under section 219EA to pass on an amount to an individual (the
recipient
) in respect of care provided for a child by the service in a week, but the recipient was not entitled to child care rebate in respect of the week;the amount so paid is, subject to section 71F, a debt due to the Commonwealth by the recipient.
History
S 71B(1) amended by No 25 of 2011, s 3 and Sch 1 item 27, by inserting para (d), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
71B(2)
If:
(a)
an enrolment advance was paid to a child care service under section 219RA; and
(b)
the service was not entitled to be paid the advance;the amount of the advance becomes a debt due to the Commonwealth by the service.
71B(3)
If:
(a)
one of the following payments is made to a financial institution for the credit of an account kept with the institution (the
incorrect account
):
(i)
a payment under section 219Q or subsection 219QA(2) in respect of fee reduction;
(ii)
a payment under section 219QC or subsection 219QD(2) in respect of child care rebate;
(iii)
a payment under section 219RA of an enrolment advance; and
(b)
the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of someone who was not the person, or one of the persons, in whose name the incorrect account was kept;an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, as the case requires, in whose name the incorrect account was kept.
History
S 71B(3) amended by No 25 of 2011, s 3 and Sch 1 item 28, by substituting para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). No 25 of 2011, s 3 and Sch 1 item 79 contains the following application provision:
79 Continued application of section 71B of the Family Assistance Administration Act
79
The amendment made by item 28 of this Schedule does not affect section 71B of the Family Assistance Administration Act as it applies in relation to payments made before the commencement of that item.
Para (a) formerly read:
(a)
a payment under section 219Q or subsection 219QA(2) in respect of fee reduction, or a payment under section 219RA of an enrolment advance, is made to a financial institution for the credit of an account kept with the institution (the
incorrect account
); and
S 71B substituted by No 118 of 2007, s 3 and Sch 1 item 35, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 71B formerly read:
SECTION 71B Debts where no entitlement or where advance paid to wrong account
71B(1)
If:
(a)
an amount:
(i)
of fee reductions has been made under section 219A in respect of an individual in respect of a period; or
(ii)
has been paid to a person by way of child care benefit in respect of a period; and
(b)
the person was not entitled to child care benefit in respect of that period;
the amount so paid is, subject to section 71F, a debt due to the Commonwealth by the person.
71B(2)
If:
(a)
a payment representing one or more amounts by way of advance determined under section 219Q is made to a financial institution for the credit of an account kept with the institution (the
incorrect account
); and
(b)
the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of someone who was not the person or one of the persons in whose name the incorrect account was kept;
an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, as the case requires, in whose name the incorrect account was kept.
History
S 71B(2) inserted by No 30 of 2003, s 3 and Sch 2 item 27, effective 15 April 2003.
S 71B inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71C
Debts in respect of CCS or ACCS - overpayment
71C(1)
If:
(a)
an amount (the
received amount
) is paid to an individual by way of CCS or ACCS for one or more sessions of care; and
(b)
the received amount is greater than the amount (the
correct amount
) of CCS or ACCS the individual was entitled to be paid for the sessions of care;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.
71C(2)
If:
(a)
an amount (the
received amount
) is paid to a provider under section
67EE by way of ACCS (child wellbeing) for one or more sessions of care; and
(b)
the received amount is greater than the amount (the
correct amount
) of ACCS (child wellbeing) the provider was entitled to be paid for the sessions of care;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the provider.
History
S 71C substituted by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71C formerly read:
SECTION 71C Debts arising in respect of child care benefit where overpayment
71C
If:
(a)
an amount (the
received amount
) has been paid to a person by way of child care benefit in respect of a period; and
(b)
the received amount is greater than the amount (the
correct amount
) of benefit that should have been paid to the person under the family assistance law in respect of that period;
the difference between the received amount and the correct amount is, subject to section 71F, a debt due to the Commonwealth by the person.
S 71C inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71CAA
71CAA
Debts arising in respect of child care rebate where no entitlement
(Repealed by No 22 of 2017)
History
S 71CAA repealed by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71CAA formerly read:
SECTION 71CAA Debts arising in respect of child care rebate where no entitlement
No entitlement to rebate arising from CCB by fee reduction
71CAA(1)
If:
(a)
an amount has been paid to an individual by way of child care rebate for a week under Subdivision AAB or for a quarter under Subdivision AA of Division 4AA of Part 3 in respect of a period during which the individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and
(b)
the individual is not entitled to rebate in respect of the chid and that period;
the amount is a debt due to the Commonwealth by the individual.
Note 1:
For paragraph (b), the individual will not be entitled to rebate if a determination of no entitlement has been made under subsection 65EA(3) in respect of the child and the period.
Note 2:
A determination of no entitlement under subsection 65EA(3) could arise as a decision substituted on review under Part 5.
History
S 71CAA(1) amended by No 25 of 2011, s 3 and Sch 1 item 29, by inserting "for a week under Subdivision AAB or" in para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
71CAA(2)
If:
(a)
an amount has been paid to an individual by way of child care rebate in respect of a child for an income year as a result of:
(i)
a determination under subsection 65EA(2) in respect of a period of care covered by a determination made under section 51B or subsection 51C(1); or
(ii)
a determination under subsection 65EC(1) in respect of a period of care covered by a determination made under section 51B or subsection 51C(1); and
(b)
the individual is not entitled to rebate in respect of the child and that period;
the amount is a debt due to the Commonwealth by the individual.
No entitlement to rebate arising from CCB for past period
71CAA(3)
If:
(a)
an amount has been paid to an individual by way of child care rebate in respect of a child for an income year as a result of:
(i)
a determination under subsection 65EB(2) in respect of a period of care covered by a determination made under section 52E or subsection 52G(1); or
(ii)
a determination under subsection 65EC(1) in respect of a period of care covered by a determination made under section 52E or subsection 52G(1); and
(b)
the individual is not entitled to rebate in respect of the child and that period;
the amount is a debt due to the Commonwealth by the individual.
No entitlement to rebate arising from CCB by fee reduction or for past period - other situations
71CAA(4)
If:
(a)
an amount has been paid to an individual by way of child care rebate:
(i)
for an income year, for a week in an income year, or for a quarter in an income year, in respect of a child; and
(ii)
in circumstances other than those mentioned in subsection (1), (2), (3) or (5); and
(b)
the individual is not entitled to rebate for that year in respect of the child;
the amount is a debt due to the Commonwealth by the individual.
History
S 71CAA(4) amended by No 25 of 2011, s 3 and Sch 1 item 30, by inserting "for a week in an income year," in para (a)(i), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
No entitlement to rebate arising from CCB by single payment/in substitution
71CAA(5)
If:
(a)
an amount has been paid to an individual by way of child care rebate in respect of a child for a period:
(i)
as a result of a determination under subsection 65ECA(2) in respect of a period of care covered by a determination made under section 53D or subsection 53E(1); or
(ii)
in other circumstances because of the death of another individual; and
(b)
the individual is not entitled to rebate in respect of the child and that period;
the amount is a debt due to the Commonwealth by the individual.
S 71CAA substituted by No 50 of 2009, s 3 and Sch 3 item 3, applicable in relation to:
(a) payments under, or purportedly under, Subdivision AA of Division 4AA of Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 1 July 2008; and
(b) payments under, or purportedly under, subsection 65EF(1) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2008; and
(c) payments under, or purportedly under, subsection 65EF(2D) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2007.
S 71CAA formerly read:
SECTION 71CAA Debts arising in respect of child care tax rebate where no entitlement or rebate paid to wrong account
71CAA(1)
If:
(a)
an amount has been paid to a person by way of child care tax rebate for an income year; and
(b)
the person was not entitled to the rebate for that year;the amount so paid is a debt due to the Commonwealth by the person.
71CAA(2)
If:
(a)
a payment representing child care tax rebate for an income year is made to a financial institution for the credit of an account kept with the institution (the
incorrect account
); and
(b)
the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of someone who was not the person or one of the persons in whose name the incorrect account was kept;an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, as the case requires, in whose name the incorrect account was kept.
S 71CAA inserted by No 113 of 2007, s 3 and Sch 1 item 13, effective 1 July 2007.
SECTION 71CAB
71CAB
Debts arising in respect of child care rebate where overpayment
(Repealed by No 22 of 2017)
History
S 71CAB repealed by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71CAB formerly read:
SECTION 71CAB Debts arising in respect of child care rebate where overpayment
Overpayment of rebate arising from CCB by fee reduction - for a week or a quarter
71CAB(1)
If:
(a)
an amount (the
received amount
) has been paid to an individual by way of child care rebate in respect of a period during which the individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and
(aa)
the amount is paid under Subdivision AAB of Division 4AA of Part 3 (weekly payment), Subdivision AA of that Division (quarterly payment), or both Subdivision AAB and Subdivision AA of that Division (both weekly and quarterly payment during the period); and
(b)
the received amount is greater than the amount (the
correct amount
) of rebate to which the individual is entitled under subsection 65EA(2) or 65EC(1) in respect of the child and that period;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.
Note:
A determination of entitlement under subsection 65EA(2) or 65EC(1) could arise as a decision substituted on review under Part 5.
History
S 71CAB(1) amended by No 25 of 2011, s 3 and Sch 1 item 31, by substituting para (a) and (aa) for para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). Para (a) formerly read:
(a)
an amount (the
received amount
) has been paid to an individual by way of child care rebate for a quarter:
(i)
under Subdivision AA of Division 4AA of Part 3; and
(ii)
in respect of a period during which the individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and
Overpayment of rebate arising from CCB by fee reduction - for an income year
71CAB(2)
If:
(a)
an amount (the
received amount
) has been paid to an individual by way of child care rebate in respect of a child for an income year in respect of a period of care covered by a determination made under section 51B or subsection 51C(1); and
(b)
the received amount is greater than the amount (the
correct amount
) of rebate to which the individual is entitled under subsection 65EA(2) or 65EC(1) in respect of the child and that period;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.
Note:
A determination of entitlement under subsection 65EA(2) or 65EC(1) could arise as a decision substituted on review under Part 5.
Overpayment of rebate arising from CCB for past period
71CAB(3)
If:
(a)
an amount (the
received amount
) has been paid to an individual by way of child care rebate in respect of a child for an income year in respect of a period of care covered by a determination made under section 52E or subsection 52G(1); and
(b)
the received amount is greater than the amount (the
correct amount
) of rebate to which the individual is entitled under subsection 65EB(2) or 65EC(1) in respect of the child and that period;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.
Note:
A determination of entitlement under subsection 65EB(2) or 65EC(1) could arise as a decision substituted on review under Part 5.
Overpayment of rebate arising from CCB in substitution
71CAB(4)
If:
(a)
an amount (the
received amount
) has been paid to an individual by way of child care rebate in respect of a child for a period of care covered by a determination made under section 53D or subsection 53E(1); and
(b)
the received amount is greater than the amount (the
correct amount
) of rebate to which the individual is entitled under subsection 65ECA(2) in respect of the child and that period;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.
History
Note:
A determination of entitlement under subsection 65ECA(2) could arise as a decision substituted on review under Part 5.
S 71CAB substituted by No 50 of 2009, s 3 and Sch 3 item 3, applicable in relation to:
(a) payments under, or purportedly under, Subdivision AA of Division 4AA of Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 1 July 2008; and
(b) payments under, or purportedly under, subsection 65EF(1) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2008; and
(c) payments under, or purportedly under, subsection 65EF(2D) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2007.
S 71CAB formerly read:
SECTION 71CAB Debts arising in respect of child care tax rebate where overpayment
71CAB
If:
(a)
an amount (the
received amount
) has been paid to a person by way of child care tax rebate for an income year; and
(b)
the received amount is greater than the amount (the
correct amount
) of rebate that should have been paid to the person under the family assistance law for the year;the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
S 71CAB inserted by No 113 of 2007, s 3 and Sch 1 item 13, effective 1 July 2007.
SECTION 71CAC
71CAC
Debts arising in respect of child care rebate paid to wrong account
(Repealed by No 22 of 2017)
History
S 71CAC repealed by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71CAC formerly read:
SECTION 71CAC Debts arising in respect of child care rebate paid to wrong account
71CAC
Subject to subsection 93A(5), if:
(a)
a payment by way of child care rebate is made to a financial institution for the credit of an account kept with the institution (the
incorrect account
); and
(b)
the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of someone who was not the person or one of the persons in whose name or names the incorrect account was kept;
an amount equal to the amount of the payment made to the institution is a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name or names the incorrect account was kept.
S 71CAC inserted by No 50 of 2009, s 3 and Sch 3 item 3, applicable in relation to:
(a) payments under, or purportedly under, Subdivision AA of Division 4AA of Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 1 July 2008; and
(b) payments under, or purportedly under, subsection 65EF(1) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2008; and
(c) payments under, or purportedly under, subsection 65EF(2D) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2007.
SECTION 71CA
71CA
Debts arising in respect of fee reduction payments not remitted - debt owed by service
(Repealed by No 22 of 2017)
History
S 71CA repealed by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71CA formerly read:
SECTION 71CA Debts arising in respect of fee reduction payments not remitted - debt owed by service
71CA
If an approved child care service does not remit to the Secretary an amount that the service is required to remit under section 219QB (fee reductions that it is not reasonably practicable for the service to pass on), the amount is a debt due to the Commonwealth by the service.
S 71CA inserted by No 118 of 2007, s 3 and Sch 1 item 36, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 71CB
71CB
Debts arising in respect of child care rebate payment not remitted - debt owed by service
(Repealed by No 22 of 2017)
History
S 71CB repealed by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71CB formerly read:
SECTION 71CB Debts arising in respect of child care rebate payment not remitted - debt owed by service
71CB
If an approved child care service does not remit to the Secretary an amount that the service is required to remit under section 219QE (weekly payments of child care rebate that it is not reasonably practicable for the service to pass on), the amount is a debt due to the Commonwealth by the service.
S 71CB inserted by No 25 of 2011, s 3 and Sch 1 item 32, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 71D
71D
Debts in respect of fee reduction amounts provider fails to pass on or remit
If a provider to whom notice of a fee reduction decision is given does not do one of the following within 14 days after the notice is given (or, if that period has been extended under subsection
201A(2A), within the extended period):
(a)
pass on the fee reduction amount for the decision to the individual to whom the decision relates;
(b)
remit the fee reduction amount to the Secretary in a manner approved by the Secretary;
an amount equal to the fee reduction amount is a debt due to the Commonwealth by the provider.
History
S 71D amended by No 66 of 2022, s 3 and Sch 8 item 2, by inserting "(or, if that period has been extended under subsection 201A(2A), within the extended period)", effective 30 November 2022 and applicable in relation to fee reduction decisions that are made on or after 30 November 2022.
S 71D substituted by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71D formerly read:
SECTION 71D Debt arising in respect of child care benefit where false or misleading statement by individual - debt owed by individual
Child care benefit paid to service because of false or misleading statement by individual
71D(1)
If:
(a)
an individual knowingly makes a false or misleading statement to:
(i)
an approved child care service; or
(ii)
an officer; and
(b)
because of the false or misleading statement, the service is:
(i)
eligible under section 47 of the Family Assistance Act in respect of the child and the session; or
(ii)
being so eligible, is entitled to an amount of child care benefit in respect of the child and the session; and
(c)
an amount of child care benefit is paid to the service for a session of care provided by the service to a child who was in the care of the individual immediately before the session was provided;
the difference between the amount paid to the service and the amount that would have been paid if the individual had not made the statement is a debt due to the Commonwealth by the individual.
71D(2)
For the purposes of subsection (1), the amount that would have been paid if the individual had not made the statement may be nil.
Child care benefit, paid to individual who is conditionally eligible, following service's certificate because of false or misleading statement by individual
71D(3)
If:
(a)
an individual knowingly makes a false or misleading statement to an approved child care service; and
(b)
the service, in reliance on the statement:
(i)
certifies a rate under subsection 76(1) of the Family Assistance Act; or
(ii)
gives a certificate relating to a weekly limit of hours under subsection 54(10), 55(6) or 56(3) of that Act; and
(c)
an amount of child care benefit is paid to the individual because of the certificate;
the difference between the amount paid to the individual and the amount that would have been paid if the individual had not made the statement is a debt due to the Commonwealth by the individual.
S 71D inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71DA
Debts in respect of CCS or ACCS - absences before first attendance or after last attendance
When this section applies
71DA(1)
This section applies if:
(a)
an amount (the
CCS/ACCS amount
) is paid to an individual by way of CCS or ACCS for a session of care provided by a child care service of a provider to a child on a day; and
(b)
the child did not attend any part of the session of care on the day; and
(c)
the day was:
(i)
before the day the child first attended a session of care provided by the service; or
(ii)
after the last day the child attended a session of care provided by the service before the child ceased to be enrolled for care by the service; and
(d)
the service is not taken to have provided the session of care to the child on the day under subsection
10(2),
(3) or
(5) of the Family Assistance Act; and
(e)
the individual incurs a debt under subsection
71B(1) for the CCS/ACCS amount.
If debt is incurred before reconciliation
71DA(2)
If the individual incurs the debt before the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:
(a)
the individual is not taken to have incurred the debt; and
(b)
the CCS/ACCS amount is instead a debt due to the Commonwealth by the provider.
If debt is incurred after reconciliation
71DA(3)
If the individual incurs the debt after the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:
(a)
the amount of the debt is taken to be the amount of the withholding component of the CCS/ACCS amount (see subsection
(4)); and
(b)
the amount of the fee reduction component of the CCS/ACCS amount is a debt due to the Commonwealth by the provider (see subsection
(5)).
71DA(4)
The
withholding component
of the CCS/ACCS amount is the amount that would be the withholding amount under subsection
67EB(3), if it were assumed that:
(a)
subsections
67EB(3) and
(4) applied for the purposes of this section; and
(b)
references to a payment in subsection
67EB(3) were instead references to the CCS/ACCS amount.
71DA(5)
The
fee reduction component
of the CCS/ACCS amount is the CCS/ACCS amount less the withholding component of the CCS/ACCS amount.
Interaction with section 71F
71DA(6)
If:
(a)
under paragraph
(2)(b), the provider incurs a debt for the CCS/ACCS amount; and
(b)
under paragraph
71F(2)(b), the provider incurs a debt that consists wholly or partly of an amount (the
corresponding 71F(2)(b) amount
) that relates to the same session of care as the CCS/ACCS amount;
then:
(c)
if the CCS/ACCS amount is equal to, or more than, the corresponding
71F(2)(b) amount - the provider is taken not to have incurred so much of the debt under paragraph
71F(2)(b) that is equal to the corresponding
71F(2)(b) amount; and
(d)
if the corresponding
71F(2)(b) amount is more than the CCS/ACCS amount - the provider is taken not to have incurred a debt for the CCS/ACCS amount under paragraph
(2)(b) of this section.
71DA(7)
If:
(a)
under paragraph
(3)(b), the provider incurs a debt for the amount of the fee reduction component of the CCS/ACCS amount; and
(b)
under paragraph
71F(3)(b), the provider incurs a debt that consists wholly or partly of an amount (the
corresponding 71F(3)(b) amount
) that relates to the same session of care as the CCS/ACCS amount;
then:
(c)
if the amount of the fee reduction component is equal to, or more than, the corresponding
71F(3)(b) amount - the provider is taken not to have incurred so much of the debt under paragraph
71F(3)(b) that is equal to the corresponding
71F(3)(b) amount; and
(d)
if the corresponding
71F(3)(b) amount is more than the amount of the fee reduction component - the provider is taken not to have incurred a debt for the amount of the fee reduction component under paragraph
(3)(b) of this section.
History
S 71DA inserted by No 38 of 2023, s 3 and Sch 1 item 1, applicable in relation to a session of care that is provided on a day that occurs on or after 29 June 2023.
SECTION 71E
Debts in respect of ACCS (child wellbeing) for provider - individual at fault
71E(1)
The Secretary may make a determination for an individual and a provider in the circumstances referred to in subsection (2). If the Secretary does so:
(a)
the provider is taken not to have incurred a debt that, apart from the determination, was incurred by the provider under subsection
71B(1) or
71C(2); and
(b)
the amount of the debt is instead a debt due to the Commonwealth by the individual.
71E(2)
The circumstances are that:
(a)
the individual makes a false or misleading statement; and
(b)
because of the statement, the provider is paid an amount by way of ACCS (child wellbeing) for one or more sessions of care provided by a service to a child who was in the care of the individual immediately before the sessions of care were provided; and
(c)
the provider incurs a debt under subsection
71B(1) or
71C(2) in relation to the payment.
History
S 71E substituted by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71E formerly read:
SECTION 71E Debt arising in respect of child care benefit when false or misleading statement etc. by service - debt owed by service
Child care benefit paid at rate certified by service because of false or misleading statement by service in certificate
71E(1)
If:
(a)
76 of the Family Assistance Act in relation to a session of care provided by the service to:
(i)
an FTB child, or a regular care child, of an individual, or the individual's partner; or
(ii)
a child who was in the care of an individual immediately before the session was provided; and
(b)
the service certifies the rate knowing that the reason for certifying the rate does not apply in respect of the child or the individual; and
(c)
an amount of child care benefit is paid because of the certificate;
the difference between the amount paid and the amount that would have been paid if the service had not certified the rate is a debt due to the Commonwealth by the service.
History
S 71E(1) amended by No 146 of 2006, s 3 and Sch 8 item 106, by inserting ", or a regular care child," after "FTB child" in para (a)(i), effective 1 July 2008.
Child care benefit paid following service's certificate relating to weekly limit of hours made because of false or misleading statement by service in certificate
71E(2)
If:
(a)
an approved child care service gives a certificate under subsection 54(10), 55(6) or 56(3) or (4) of the Family Assistance Act relating to a weekly limit of hours in sessions of care provided by the service to:
(i)
an FTB child, or a regular care child, of an individual, or the individual's partner; or
(ii)
a child who was in the care of an individual immediately before the first session of care was provided; and
(b)
the service gives the certificate knowing that the reason for giving the certificate does not apply in respect of the child or the individual; and
(c)
an amount of child care benefit is paid because of the certificate;
the difference between the amount paid and the amount that would have been paid if the service had not given the certificate is a debt due to the Commonwealth by the service.
History
S 71E(2) amended by No 146 of 2006, s 3 and Sch 8 item 106, by inserting ", or a regular child," after "FTB child" in para (a)(i), effective 1 July 2008.
Child care benefit paid at rate determined by Secretary because of false or misleading statement by service
71E(3)
If:
(a)
an approved child care service knowingly makes a false or misleading statement to an officer; and
(b)
a determination of rate is made by the Secretary under subsection 81(2) or (3) of the Family Assistance Act in reliance on the statement; and
(c)
an amount of child care benefit is paid because of the determination;
the difference between the amount paid because of the determination and the amount that would have been paid if the service had not made the statement is a debt due to the Commonwealth by the service.
Child care benefit paid following variation of determination of weekly limit of hours made because of service's false or misleading statement by service
71E(4)
If:
(a)
an approved child care service knowingly makes a false or misleading statement to an officer; and
(b)
a variation of a determination of a weekly limit of hours is made by the Secretary under subsection 64A(2), 64B(2) or 64C(2), in reliance on the statement; and
(c)
an amount of child care benefit is paid because of the variation;
the difference between the amount paid and the amount that would have been paid if the service had not made the statement is a debt due to the Commonwealth by the service.
Service eligible for child care benefit and service makes false or misleading statement as to eligibility
71E(5)
If:
(a)
an approved child care service is eligible for child care benefit under section 47 of the Family Assistance Act for care provided by the service to a child at risk; and
(b)
the service is so eligible knowing that it does not, at the time the care is provided, believe the child to be at risk of serious abuse or neglect; and
(c)
a determination of entitlement to be paid child care benefit by fee reduction for care provided to the child has been made under section 54B in respect of the service; and
(d)
an amount of child care benefit is paid because of the determination;
the difference between the amount paid and the amount that would have been paid if the service was not so eligible, is a debt due to the Commonwealth by the service.
S 71E inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71F
Debts in respect of CCS or ACCS for individual - provider at fault
When this section applies
71F(1)
This section applies if:
(a)
an amount (the
CCS/ACCS amount
) is paid to an individual by way of CCS or ACCS for a session of care provided by a child care service of a provider; and
(b)
all or part of the CCS/ACCS amount (the
attributable component
) is paid to the individual because the provider has:
(i)
made a false or misleading statement; or
(ii)
failed to comply with the family assistance law; and
(c)
the individual incurs a debt under subsection
71B(1) or
71C(1) for the CCS/ACCS amount.
If debt is incurred before reconciliation
71F(2)
If the individual incurs the debt before the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:
(a)
the amount of the debt is taken to be reduced by the amount of the attributable component; and
(b)
the amount of the attributable component is instead a debt due to the Commonwealth by the provider.
If debt is incurred after reconciliation
71F(3)
If the individual incurs the debt after the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:
(a)
the amount of the debt is taken to be the amount of the withholding component of the CCS/ACCS amount (see subsection
(4)); and
(b)
the amount of the fee reduction component of the CCS/ACCS amount (see subsection
(5)) is a debt due to the Commonwealth by the provider.
71F(4)
The
withholding component
of the CCS/ACCS amount is the amount that would be the withholding amount under subsection
67EB(3), if it were assumed that:
(a)
subsections
67EB(3) and
(4) applied for the purposes of this section; and
(b)
references to a payment in subsection
67EB(3) were instead references to the CCS/ACCS amount.
71F(5)
The
fee reduction component
of the CCS/ACCS amount is the CCS/ACCS amount less the withholding component of the CCS/ACCS amount.
History
S 71F substituted by No 38 of 2023, s 3 and Sch 1 item 2, applicable in relation to a session of care that is provided on a day that occurs on or after 29 June 2023. S 71F formerly read:
SECTION 71F Debts in respect of CCS or ACCS for individual - provider at fault
71F
If:
(a)
an individual is paid an amount of CCS or ACCS for one or more sessions of care provided by a child care service of a provider; and
(b)
all or part of the amount (the
attributable amount
) is paid to the individual because the provider has:
(i)
made a false or misleading statement; or
(ii)
failed to comply with the family assistance law; and
(c)
the individual incurs a debt under subsection 71B(1) or 71C(1) that is wholly or partly comprised of the attributable amount;
then:
(d)
the individual is taken not to have incurred as a debt under subsection 71B(1) or 71C(1) so much of the amount of the debt as is equal to the attributable amount; and
(e)
the attributable amount is instead a debt due to the Commonwealth by the provider.
S 71F substituted by No 125 of 2019, s 3 and Sch 2 item 2, effective 13 December 2019. S 71F formerly read:
SECTION 71F Debts in respect of CCS or ACCS for individual - provider at fault
71F(1)
The Secretary may make a determination for an individual and a provider in the circumstances referred to in subsection (2). If the Secretary does so:
(a)
the individual is taken not to have incurred a debt that, apart from the determination, was incurred by the individual under subsection 71B(1) or 71C(1); and
(b)
the amount of the debt is instead a debt due to the Commonwealth by the provider.
71F(2)
The circumstances are that:
(a)
the provider:
(i)
makes a false or misleading statement; or
(ii)
fails to comply with the family assistance law; and
(b)
because of the statement or failure, the individual is paid an amount of CCS or ACCS for one or more sessions of care provided by a child care service of the provider; and
(c)
the individual incurs a debt under subsection 71B(1) or 71C(1) in relation to the payment.
S 71F substituted by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71F formerly read:
SECTION 71F Debts arising under more than one provision
71F(1)
If:
(a)
a debt is due to the Commonwealth by an individual under subsection 71B(1) or section 71C; and
(b)
part or all of the amount of the debt is attributable to a false or misleading statement etc. made by an approved child care service as referred to in section 71E; and
(c)
a debt is due by the service to the Commonwealth under section 71E in respect of the false or misleading statement etc.;
the amount of the debt due by the individual under subsection 71B(1) or section 71C that is also a debt owed by the service under subsection 71E is, despite the operation of subsection 71B(1) or section 71C, not an amount of the debt owed by the individual.
History
S 71F(1) amended by No 30 of 2003, s 3 and Sch 2 item 28, by substituting "subsection 71B(1) or section 71C" for "section 71B or 71C" (wherever occurring), effective 15 April 2003.
71F(2)
If:
(a)
a debt is due to the Commonwealth by an approved child care service under subsection 71B(1) or section 71C; and
(b)
part or all of the amount of the debt is attributable to a false or misleading statement by an individual as referred to in section 71D; and
(c)
a debt is due by the individual to the Commonwealth under section 71D in respect of the false or misleading statement;
the amount of the debt due by the service under subsection 71B(1) or section 71C that is also a debt owed by the individual under section 71D is, despite the operation of subsection 71B(1) or section 71C, not an amount of the debt owed by the service.
History
S 71F(2) amended by No 30 of 2003, s 3 and Sch 2 item 28, by substituting "subsection 71B(1) or section 71C" for "section 71B or 71C"' (wherever occurring), effective 15 April 2003.
S 71F inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71G
Debts where provider approval is suspended cancelled or varied
71G(1)
If:
(a)
an amount is paid to a provider under the family assistance law; and
(b)
before the payment is made:
(i)
the provider's approval, or the provider's approval in respect of a service, is suspended by operation of section 197AB; or
(ii)
the provider's approval is cancelled by operation of subsection 197L(1); or
(iii)
the provider's approval is varied to remove a service from the approval by operation of subsection 197L(3); and
(c)
because of that suspension, cancellation or variation, the recipient should not have been paid the amount;
the amount paid is a debt due to the Commonwealth by the provider.
71G(2)
If:
(a)
a fee reduction amount is paid to a provider under section
67EB in relation to a session of care provided by a child care service of the provider on a day; and
(b)
after the payment is made, one of the following events occurs and takes effect on or before the day:
(i)
the provider's approval is cancelled or suspended (other than by operation of section 197AB or subsection 197L(1));
(ii)
the provider's approval is varied to remove the service from the approval (other than by operation of subsection 197L(3));
(iii)
the provider's approval in respect of the service is suspended (other than by operation of section 197AB);
so much of the fee reduction amount as relates to the session of care is a debt due to the Commonwealth by the provider.
History
S 71G substituted by No 125 of 2019, s 3 and Sch 2 item 2, effective 13 December 2019. S 71G formerly read:
SECTION 71G Debts where provider approval is suspended, cancelled or varied
71G
If:
(a)
a fee reduction amount is paid to a provider under section 67EB in relation to a session of care provided by a child care service of the provider on a day; and
(b)
after the payment is made, one of the following events occurs and takes effect on or before the day:
(i)
the provider's approval is cancelled or suspended;
(ii)
the provider's approval is varied so as to remove the service from the approval;
(iii)
the provider's approval in respect of the service is suspended;
so much of the fee reduction amount as relates to the session of care is a debt due to the Commonwealth by the provider.
S 71G substituted by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71G formerly read:
SECTION 71G Debts arising where child care services approval is suspended or cancelled - debt owed by service
Child care benefit - fee reduction
71G(1)
If:
(a)
either:
(i)
an amount is paid under section 219Q or subsection 219QA(2) to a person that is an approved child care service (weekly fee reduction payments); or
(ii)
such an amount would be paid, but for a set off under subsection 82(2) or section 219QA,219QD, 219RC or 219RE; and
(b)
the service's approval is suspended or cancelled under this Act before a session of care in respect of which the payment was made;
so much of the amount of the fee reduction paid as relates to that session of care is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.
History
S 71G(1) amended by No 79 of 2011, s 3 and Sch 5 item 5, by inserting "or subsection 219QA(2)" in para (a)(i), applicable in relation to amounts paid on or after 26 July 2011.
S 71G(1) amended by No 25 of 2011, s 3 and Sch 1 item 33, by substituting para (a)(ii), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). Para (a)(ii) formerly read:
(ii)
such an amount would be paid, but for a set off under subsection 82(2) or section 219QA, 219RC or 219RE; and
S 71G(1) amended by No 34 of 2010, s 3 and Sch 1 item 3, by substituting ", 219RC or 219RE" for "or 219RC" in para (a)(ii), effective 13 April 2010.
S 71G(1) amended by No 53 of 2008, s 3 and Sch 3 items 18, 19 and 27, by substituting para (b) and omitting ", or it ceased to operate" from the end, applicable to decisions relating to suspension or cancellation made after 25 June 2008. However the amendments only apply in relation to an approved child care service on or after its application day. Act No 53 of 2008, s 3 and Sch 3 item 26, contains the following transitional provision:
26 Transitional
(1)
In this item, and in item 27:
application day,
for an approved child care service, has the meaning given by item 91 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007.
(2)
The A New Tax System (Family Assistance) (Administration) Act 1999, as applying to an approved child care service before the first Monday after its application day, has effect as if section 71G of that Act were as follows:
71G Debts arising in respect of child care benefit where advance paid to service - debt owed by service
If:
(a)
an amount by way of advance determined under section 219Q is paid to a person that is an approved child care service to reimburse the service the amount of the fee reductions made by the service for care provided by the service to a child; and
(b)
during, or after, the reporting period in respect of which the advance is paid, the service's approval is suspended or cancelled under this Act;
so much of the amount of the advance as has not been used by the service to reimburse itself for the care it provided to the child at reduced fees, by the day the service's approval is suspended or cancelled, is a debt due to the Commonwealth by the service.
Para (b) formerly read:
(b)
the service's approval is suspended under this Act or cancelled under section 200, or the service ceases to operate, before a session of care in respect of which the payment was made;
71G(2)
If:
(a)
an amount is required to be set off under subsection 219QA(3) against the payment of another amount to a person that is an approved child care service (payment where recalculation reduces the amount of a fee reduction); and
(b)
the service's approval is suspended or cancelled under this Act; and
(c)
the amount has not already been set off against another amount under subsection 219QA(3) by the day the service's approval is suspended or cancelled;the amount is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.
History
S 71G(2) amended by No 53 of 2008, s 3 and Sch 3 items 20 to 22 and 27, by substituting para (b) and omitting ", or the service ceases to operate" from the end of para (c) and omitting ", or it ceased to operate" from the end. For application and transitional provisions see note under s 71G(1). Para (b) formerly read:
(b)
the service's approval is suspended under this Act or cancelled under section 200, or the service ceases to operate; and
Weekly payments of child care rebate
71G(2A)
If:
(a)
either:
(i)
an amount is paid under section 219QC or subsection 219QD(2) to a person that is an approved child care service (weekly payments of child care rebate); or
(ii)
such an amount would be paid, but for a set off under subsection 82(2) or section 219QA, 219QD, 219RC or 219RE; and
(b)
the service's approval is suspended or cancelled under this Act before a period of care in respect of which the payment was made;
so much of the amount of the child care rebate paid as relates to that period of care is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.
History
S 71G(2A) inserted by No 25 of 2011, s 3 and Sch 1 item 35, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
71G(2B)
If:
(a)
an amount is required to be set off under subsection 219QD(3) against the payment of another amount to a person that is an approved child care service (payment where recalculation reduces the amount of child care rebate); and
(b)
the service's approval is suspended or cancelled under this Act; and
(c)
the amount has not already been set off against another amount under subsection 219QD(3) by the day the service's approval is suspended or cancelled;
the amount is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.
History
S 71G(2B) inserted by No 25 of 2011, s 3 and Sch 1 item 35, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Enrolment advances
71G(3)
If:
(a)
either:
(i)
an amount is paid under section 219RA to an approved child care service (payment of enrolment advances); or
(ii)
such an amount would be paid, but for a set off under subsection 82(2) or section 219QA, 219RC or 219RE; and
(b)
the service's approval is suspended or cancelled under this Act; and
(c)
the amount has not already been set off against another amount under section 219RC by the day the service's approval is suspended or cancelled;the amount is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.
History
S 71G(3) amended by No 34 of 2010, s 3 and Sch 1 item 3, by substituting ", 219RC or 219RE" for "or 219RC" in para (a)(ii), effective 13 April 2010.
S 71G(3) amended by No 53 of 2008, s 3 and Sch 3 items 23 to 25 and 27, by substituting para (b) and omitting ", or the service ceases to operate" from the end of para (c) and omitting ", or it ceased to operate" from the end. For application and transitional provisions see note under s 71G(1). Para (b) formerly read:
(b)
the service's approval is suspended under this Act or cancelled under section 200, or the service ceases to operate; and
S 71G substituted by No 118 of 2007, s 3 and Sch 1 item 37, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 71G formerly read:
SECTION 71G Debts arising in respect of child care benefit where advance paid to service - debt owed by service
Service's approval suspended or cancelled
71G(1)
If:
(a)
an amount by way of advance determined under section 219Q is paid to a person that is an approved child care service to reimburse the service the amount of the fee reductions made by the service for care provided by the service to a child; and
(b)
during, or after, the reporting period in respect of which the advance is paid, the service's approval is suspended or cancelled under section 200;
so much of the amount of the advance as has not been used by the service to reimburse itself for the care it provided to the child at reduced fees, by the day the service's approval is suspended or cancelled is a debt due to the Commonwealth by the service.
Service ceases to operate - debts arising in respect of child care benefit advance
71G(2)
If:
(a)
an amount by way of advance determined under section 219Q is paid to a person that is an approved child care service to reimburse the service the amount of the fee reductions made by the service for care provided by the service to a child; and
(b)
during, or after, the reporting period in respect of which the advance is paid, the service ceases to operate;
so much of the amount of the advance as has not been used by the service to reimburse itself for the care provided to the child at reduced fees, by the day the service ceases to operate, is a debt due to the Commonwealth by the service.
S 71G inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71GA
71GA
Debt arising in respect of remittal of enrolment advances under paragraph 200(1)(g)
(Repealed by No 22 of 2017)
History
S 71GA repealed by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71GA formerly read:
SECTION 71GA Debt arising in respect of remittal of enrolment advances under paragraph 200(1)(g)
71GA
If, under paragraph 200(1)(g), the Secretary requires an approved child care service to remit enrolment advances paid to the service under section 219RA, an amount equal to the advances that the service is required to remit is a debt due to the Commonwealth by the service.
S 71GA inserted by No 118 of 2007, s 3 and Sch 1 item 38, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 71GB
71GB
Debts arising in respect of business continuity payments paid to service - debt owed by service
(Repealed by No 22 of 2017)
History
S 71GB repealed by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71GB formerly read:
SECTION 71GB Debts arising in respect of business continuity payments paid to service - debt owed by service
71GB(1)
If:
(a)
an amount is paid to an approved child care service under section 219RD (business continuity payments); and
(b)
the service's approval is suspended or cancelled under this Act; and
(c)
the whole or a part of the amount has not already been set off against another amount under section 219RE by the day the service's approval is suspended or cancelled;
then that whole or part is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.
71GB(2)
Subject to subsection 93A(5), if:
(a)
a payment under section 219RD is made to a financial institution for the credit of an account kept with the institution (the
incorrect account
); and
(b)
the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of a person who was not the person or one of the persons in whose name or names the incorrect account was kept;
an amount equal to the amount of the payment made to the institution is a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name or names the incorrect account was kept.
S 71GB inserted by No 34 of 2010, s 3 and Sch 1 item 4, effective 13 April 2010.
SECTION 71H
Debts in respect of business continuity payments paid to provider
71H(1)
If:
(a)
an amount is paid under section
205A or
205C (business continuity payments) in respect of a child care service; and
(b)
any of the following occurs:
(i)
the approval of the provider of the service is suspended or cancelled;
(ii)
the approval of the provider of the service is varied to remove the service from the approval;
(iii)
the approval of the provider in respect of the service is suspended; and
(c)
the whole or a part of the amount has not already been set off against another amount under section
205B by the day the suspension, cancellation or variation takes effect;
then that whole or part is a debt due to the Commonwealth by the provider immediately before the provider's approval was suspended, cancelled or varied.
History
S 71H(1) amended by No 26 of 2021, s 3 and Sch 1 item 5, by inserting "or 205C" in para (a), effective 27 March 2021. For application provisions, see note under s 205C.
71H(1A)
If:
(a)
an amount is paid under section
205C (business continuity payments - emergency or disaster) in respect of a child care service; and
(b)
the provider of the service is not eligible for the whole or a part of the payment;
then that whole or part is a debt due to the Commonwealth by the provider.
History
S 71H(1A) inserted by No 26 of 2021, s 3 and Sch 1 item 6, effective 27 March 2021. For application provisions, see note under s 205C.
71H(2)
If:
(a)
a payment under section
205A or
205C is made to a financial institution for the credit of an account kept with the institution (an
incorrect account
); and
(b)
the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of a person who was not the person, or one of the persons, in whose name the incorrect account was kept;
an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name the incorrect account was kept.
History
S 71H(2) amended by No 26 of 2021, s 3 and Sch 1 item 7, by inserting "or 205C" in para (a), effective 27 March 2021. For application provisions, see note under s 205C.
History
S 71H substituted by No 22 of 2017, s 3 and Sch 1 item 97, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 71H formerly read:
SECTION 71H Debts arising where reporting period limit is exceeded - debt owed by service
71H(1)
If:
(a)
an approved child care service has, by certificates given under section 76 of the Family Assistance Act, committed amounts of child care benefit in a reporting period; and
(b)
the total amount of child care benefit so committed by the service exceeds the reporting period limit for that reporting period (see section 79 of the Family Assistance Act); and
(c)
the service gives, during that reporting period, a further certificate under section 76 of the Family Assistance Act; and
(d)
an amount of child care benefit is paid because of that further certificate;
the difference between the amount paid and the amount that would have been paid if the service had not given the further certificate is a debt due to the Commonwealth by the service.
S 71H inserted by No 45 of 2000, s 3 Sch 2 item 78, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 71I
Debts arising in respect of one-off payment to families
71I(1)
This section applies in relation to an individual (the
recipient
) who has been paid a one-off payment to families (the
relevant payment
).
What determinations are relevant?
71I(2)
Each of the following is a
relevant determination
in relation to the recipient:
(a)
if the relevant payment was made because, at that time, subsection
86(2) of the Family Assistance Act applied to the recipient (whether or not it was also made because subsection
86(3) of that Act also applied) - the determination referred to in paragraph
86(2)(a) of the Family Assistance Act;
(b)
if the relevant payment was made because, at that time, subsection
86(3) of the Family Assistance Act applied to the recipient (whether or not it was also made because subsection
86(2) also applied) - a determination made under Part 3 of the
Social Security (Administration) Act 1999 because of which the, or an, instalment that satisfied paragraphs
86(3)(a), (b) and (c) of the Family Assistance Act was paid;
(c)
if the relevant payment was made because, at that time, subsection
86(4) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
86(4)(b) of the Family Assistance Act.
Situation in which whole amount is a debt
71I(3)
If:
(a)
after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to:
(i)
11 May 2004 (if the relevant determination is covered by paragraph (2)(a) or (b)); or
(ii)
all or part of the 2002-03 income year (if the relevant determination is covered by paragraph (2)(c));
is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:
(i)
unless subparagraph (ii) applies - the recipient; or
(ii)
if the relevant determination is covered by paragraph (2)(b) - the other individual, or one of the other individuals, referred to in paragraph 86(3)(b) of the Family Assistance Act; and
(c)
had the change, revocation, setting aside or superseding occurred on or before 11 May 2004, the relevant payment would not have been made;
the amount of the relevant payment is a debt due to the Commonwealth by the recipient.
Situation in which part of amount is a debt
71I(4)
If:
(a)
after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to:
(i)
11 May 2004 (if the relevant determination is covered by paragraph (2)(a) or (b)); or
(ii)
all or part of the 2002-03 income year (if the relevant determination was covered by paragraph (2)(c));
is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:
(i)
unless subparagraph (ii) applies - the recipient; or
(ii)
if the relevant determination is covered by paragraph (2)(b) - the other individual, or one of the other individuals, referred to in paragraph 86(3)(b) of the Family Assistance Act; and
(c)
had the change, revocation, setting aside or superseding occurred on or before 11 May 2004, the amount of the relevant payment would have been reduced;
the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.
History
S 71I inserted by No 60 of 2004, s 3 and Sch 1 item 6, effective 26 May 2004.
SECTION 71J
Debts arising in respect of economic security strategy payment to families
71J(1)
This section applies in relation to an individual (the
recipient
) who has been paid an economic security strategy payment to families (the
relevant payment
).
What determinations are relevant?
71J(2)
Each of the following is a
relevant determination
in relation to the recipient:
(a)
if the relevant payment was made because, at that time, subsection
89(2) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
89(2)(a) of that Act;
(b)
if the relevant payment was made because, at that time, subsection
89(3) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
89(3)(a) of that Act;
(c)
if the relevant payment was made because, at that time, subsection
89(4) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
89(4)(a) of that Act;
(d)
if the relevant payment was made because, at that time, subsection
89(5) of the Family Assistance Act applied to the recipient - a determination made under Part 3 of the
Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs
89(5)(a), (b) and (c) of the Family Assistance Act was paid;
(e)
if the relevant payment was made because, at that time, subsection
89(6) of the Family Assistance Act applied to the recipient - a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;
(f)
if the relevant payment was made, because, at that time, subsection
89(7) of the Family Assistance Act applied to the recipient - a determination under the Veterans' Children Education Scheme because of which the whole or part of the allowance was paid in the circumstances described in that subsection;
(g)
if the relevant payment was made because, at that time, subsection
89(8) of the Family Assistance Act applied to the recipient - a determination under the Military Rehabilitation and Compensation Act Education and Training Scheme because of which the whole or part of the allowance was paid in the circumstances described in that subsection;
(h)
if the relevant payment was made because, at that time, subsection
93(2) of the Family Assistance Act applied to the recipient - a determination made under Part 3 of the
Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs
93(2)(a) and (b) of the Family Assistance Act was paid;
(i)
if the relevant payment was made because, at that time, subsection
93(3) of the Family Assistance Act applied to the recipient - a determination under the ABSTUDY Policy Manual of which the whole or part of the instalment was paid in the circumstances described in that subsection;
(j)
if the relevant payment was made because, at that time, subsection
93(4) of the Family Assistance Act applied to the recipient - a determination under the Veterans' Children Education Scheme because of which the allowance was paid in the circumstances described in that subsection;
(k)
if the relevant payment was made because, at that time, subsection
93(5) of the Family Assistance Act applied to the recipient - a determination under the Military Rehabilitation and Compensation Act Education and Training Scheme because of which the allowance was paid in the circumstances described in that subsection.
Situation in which whole amount is a debt
71J(3)
If:
(a)
after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 14 October 2008, is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:
(i)
unless subparagraph (ii) or (iii) applies - the recipient;
(ii)
if the relevant determination is covered by paragraph (2)(d) - the recipient or the other individual, or one of the other individuals, covered by paragraph 89(5)(b) of the Family Assistance Act;
(iii)
if the relevant determination is covered by paragraph (2)(e), (f) or (g) - the recipient or the student, or one of the students, covered by paragraph 89(6)(a), (7)(a) or (8)(a) of the Family Assistance Act; and
(c)
had the change, revocation, setting aside or superseding occurred on or before 14 October 2008, the relevant payment would not have been made;
the amount of the relevant payment is a debt due to the Commonwealth by the recipient.
Situation in which part of amount is a debt
71J(4)
If:
(a)
after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 14 October 2008, is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:
(i)
unless subparagraph (ii) or (iii) applies - the recipient;
(ii)
if the relevant determination is covered by paragraph (2)(d) - the recipient or the other individual, or one of the other individuals, covered by paragraph 89(5)(b) of the Family Assistance Act;
(iii)
if the relevant determination is covered by paragraph (2)(e), (f) or (g) - the recipient or the student, or one of the students, covered by paragraph 89(6)(a), (7)(a) or (8)(a) of the Family Assistance Act; and
(c)
had the change, revocation, setting aside or superseding occurred on or before 14 October 2008, the amount of the relevant payment would have been reduced;
the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.
History
S 71J inserted by No 131 of 2008, s 3 and Sch 3 item 8, effective 1 December 2008.
SECTION 71K
Debts arising in respect of back to school bonus or single income family bonus
71K(1)
This section applies in relation to an individual (the
recipient
) who has been paid a back to school bonus or a single income family bonus (the
relevant payment
).
What determinations are relevant?
71K(2)
Each of the following is a
relevant determination
in relation to the recipient:
(a)
if the relevant payment was made because, at that time, subsection
95(2) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
95(2)(a) of that Act;
(b)
if the relevant payment was made because, at that time, subsection
95(3) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
95(3)(a) of that Act;
(c)
if the relevant payment was made because, at that time, subsection
95(4) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
95(4)(a) of that Act;
(d)
if the relevant payment was made because, at that time, section
98 of the Family Assistance Act applied to the recipient - the determination made under Part
3 of the
Social Security (Administration) Act 1999 that resulted in the recipient receiving the carer payment or disability support pension;
(e)
if the relevant payment was made because, at that time, subsection
101(2) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
101(2)(a) of that Act;
(f)
if the relevant payment was made because, at that time, subsection
101(3) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
101(3)(a) of that Act;
(g)
if the relevant payment was made because, at that time, subsection
101(4) of the Family Assistance Act applied to the recipient - the determination referred to in paragraph
101(4)(a) of that Act.
Situation in which whole amount is a debt
71K(3)
If:
(a)
after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 3 February 2009, is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the recipient knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before 3 February 2009, the relevant payment would not have been made;
the amount of the relevant payment is a debt due to the Commonwealth by the recipient.
Situation in which part of amount is a debt
71K(4)
If:
(a)
after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 3 February 2009, is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the recipient knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before 3 February 2009, the amount of the relevant payment would have been reduced;
the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.
History
S 71K inserted by No 4 of 2009, s 3 and Sch 3 item 7, effective 18 February 2009.
SECTION 71L
Debts arising in respect of clean energy advance
71L(1)
This section applies in relation to an individual who has been paid a clean energy advance.
71L(2)
For the purposes of this section, the
relevant determination
in relation to the individual is the determination referred to in paragraph
103(1)(a) or
(2)(a) or
104(1)(a) of the Family Assistance Act.
Situation in which whole amount is a debt
71L(3)
If:
(a)
after the advance was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to a day in the period starting on 1 July 2012 and ending on 30 June 2013, is or was (however described) changed, revoked, set aside or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before the day the advance was paid, the advance would not have been paid;
the amount of the advance is a debt due to the Commonwealth by the individual.
Situation in which part of amount is a debt
71L(4)
If:
(a)
after the advance was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to a day in the period starting on 1 July 2012 and ending on 30 June 2013, is or was (however described) changed, revoked, set aside or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before the day the advance was paid, the amount of the advance would have been reduced;
the amount by which the advance would have been reduced is a debt due to the Commonwealth by the individual.
History
S 71L inserted by No 141 of 2011, s 3 and Sch 2 item 7, effective 14 May 2012.
SECTION 71M
Debts arising in respect of ETR payment
71M(1)
This section applies in relation to an individual who has been paid an ETR payment.
71M(2)
For the purposes of this section, each of the following is a
relevant determination
in relation to the individual:
(a)
if the ETR payment was made because, at that time, subsection
102A(1) of the Family Assistance Act applied to the individual - the determination referred to in paragraph
102A(1)(a) of that Act;
(b)
if the ETR payment was made because, at that time, subsection
102A(2) of the Family Assistance Act applied to the individual - a determination made under Part 3 of the
Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs
102A(2)(a), (b), (c) and (e) of the Family Assistance Act was paid;
(c)
if the ETR payment was made because, at that time, subsection
102A(3) of the Family Assistance Act applied to the individual-a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;
(d)
if the ETR payment was made because, at that time, subsection
102A(4) of the Family Assistance Act applied to the individual - a determination made under Part 3 of the
Social Security (Administration) Act 1999 because of which the instalment that satisfied:
(i)
paragraphs 102A(4)(a), (c), (d) and (f) of the Family Assistance Act was paid; or
(ii)
paragraphs 102A(4)(b), (c), (d) and (f) of the Family Assistance Act was paid, if that instalment was paid to the individual;
(e)
if the ETR payment was made because, at that time, subsection
102D(1) of the Family Assistance Act applied to the individual-a determination made under Part 3 of the
Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs
102D(1)(a), (b) and (c) of the Family Assistance Act was paid;
(f)
if the ETR payment was made because, at that time, subsection
102D(2) of the Family Assistance Act applied to the individual-a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;
(g)
if the ETR payment was made because, at that time, subsection
102D(3) of the Family Assistance Act applied to the individual-a determination made under Part 3 of the
Social Security (Administration) Act 1999 because of which the instalment that satisfied:
(i)
paragraphs 102D(3)(a), (c) and (d) of the Family Assistance Act was paid; or
(ii)
paragraphs 102D(3)(b), (c) and (d) of the Family Assistance Act was paid, if that instalment was paid to the individual;
(h)
if the ETR payment was made because, at that time, subsection
102F(1) of the Family Assistance Act applied to the individual-the determination referred to in paragraph
102F(1)(a) of that Act.
Situation in which whole amount is a debt
71M(3)
If:
(a)
after the ETR payment was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to 8 May 2012, is or was (however described) changed, revoked, set aside or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before the day the ETR payment was paid, the ETR payment would not have been paid;
the amount of the ETR payment is a debt due to the Commonwealth by the individual.
Situation in which part of amount is a debt
71M(4)
If:
(a)
after the ETR payment was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to 8 May 2012, is or was (however described) changed, revoked, set aside or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before the day the ETR payment was paid, the amount of the ETR payment would have been reduced;
the amount by which the ETR payment would have been reduced is a debt due to the Commonwealth by the individual.
History
S 71M inserted by No 50 of 2012, s 3 and Sch 1 item 6, effective 27 May 2012.
SECTION 72
Debts arising in respect of 2020 economic support payment
72(1)
This section applies in relation to an individual who has been paid a 2020 economic support payment because subsection
116(2),
(3) or
(4) of the Family Assistance Act applied to the individual on a day.
72(2)
If:
(a)
after the payment was paid to the individual, the determination mentioned in that subsection of the Family Assistance Act, at least so far as the determination relates to that day, is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before that day, the payment would not have been paid;
the amount of the payment is a debt due to the Commonwealth by the individual.
History
S 72 inserted by No 22 of 2020, s 3 and Sch 4 item 6, effective 25 March 2020.
Former s 72 repealed by No 59 of 2004, s 3 and Sch 2 item 30, effective 1 July 2004. No 59 of 2004, s 3 and Sch 2 item 31 contains the following saving provision:
31 Saving provision for certain payments
(1)
Despite the repeal of section 72 of the A New Tax System (Family Assistance) (Administration) Act 1999, that section applies to the payment of an amount by way of:
(a)
maternity allowance; or
(b)
maternity immunisation allowance for a child born before 1 January 2003;
as if the repeal had not occurred.
(2)
It does not matter whether the payment was made before, on or after commencement.
S 72 formerly read:
Circumstances in which maternity allowance or maternity immunisation allowance not recoverable
72
Section 71 does not apply in relation to a payment to a person of maternity allowance or maternity immunisation allowance for which the person was not entitled if the person's lack of entitlement for the allowance resulted from the person's Part A rate of family tax benefit being nil and either:
(a)
the person's nil Part A rate resulted from an event or change in circumstances that occurred after the payment of maternity allowance or maternity immunisation allowance was made; or
(b)
the following subparagraphs apply:
(i)
the person's nil Part A rate resulted from the amount of the person's adjusted taxable income for the relevant income year;
(ii)
maternity allowance or maternity immunisation allowance was made on the basis of a determination of the person's Part A rate that was based on an incorrect estimate by the person of an income component of the person's adjusted taxable income;
(iii)
at the time when the estimate was made the person did not know, and had no reason to suspect, that the estimate was incorrect.
SECTION 72A
Debts arising in respect of additional economic support payment
72A(1)
This section applies in relation to an individual who has been paid an additional economic support payment 2020 or additional economic support payment 2021 because subsection
123(2),
(3) or
(4) of the Family Assistance Act applied to the individual on a day.
72A(2)
If:
(a)
after the payment was paid to the individual, the determination mentioned in that subsection of the Family Assistance Act, at least so far as the determination relates to that day, is or was (however described) changed, revoked, set aside or superseded by another determination; and
(b)
the decision to change, revoke, set aside or supersede the determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and
(c)
had the change, revocation, setting aside or superseding occurred on or before that day, the payment would not have been paid;
the amount of the payment is a debt due to the Commonwealth by the individual.
History
S 72A inserted by No 97 of 2020, s 3 and Sch 1 item 6, effective 14 November 2020.
SECTION 73
73
Debts arising from AAT stay orders
[
CCH Note:
S 73 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
If:
(a)
a person applies to the AAT for AAT second review or AAT single review of a decision; and
(b)
the AAT makes an order under subsection
41(2) of the
Administrative Appeals Tribunal Act 1975 (the
AAT Act
); and
(c)
as a result of the order or the operation of subsection
43(5C) of the AAT Act, the amount that has in fact been paid to the person under the family assistance law is greater than the amount that should have been paid to the person under the family assistance law;
the difference between the amount that was in fact paid to the person and the amount that should have been paid is a debt due to the Commonwealth.
[
CCH Note:
S 73 will be amended by No 38 of 2024, s 3 and Sch 3 item 7, by substituting para (a) to (c), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. Para (a) to (c) will read:
(a)
a person applies to the ART for ART review or ART child care provider review of a decision; and
(b)
the ART makes an order under subsection 32(2) (ART may stay operation or implementation) of the ART Act; and
(c)
as a result of the order or the operation of subsection 107(3) (when ART's decision on review comes into operation) of the ART Act, the amount that has in fact been paid to the person under the family assistance law is greater than the amount that should have been paid to the person under the family assistance law;
]
History
S 73 amended by No 26 of 2021, s 3 and Sch 1 items 19-21, by inserting "(the
AAT Act
)" in para (b), "or the operation of subsection 43(5C) of the AAT Act" in para (c) and substituting "under the family assistance law" for "by way of family assistance" in para (c), applicable in relation to amounts paid under the family assistance law on or after 27 March 2021. For application provisions, see note under s 205C.
S 73 amended by No 125 of 2019, s 3 and Sch 2 item 3, by inserting "or AAT single review" in para (a), applicable in relation to an order made by the AAT under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 on or after 13 December 2019.
S 73 amended by No 60 of 2015, s 3 and Sch 5 item 5, by substituting "for AAT second review" for "under section 142 for review" in para (a), effective 1 July 2015.
SECTION 74
74
Person other than payee obtaining payment of a cheque
If:
(a)
an amount of family assistance, one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021 is paid by cheque; and
(b)
a person other than the payee obtains possession of the cheque from the payee; and
(c)
the cheque is not endorsed by the payee to the person; and
(d)
the person obtains value for the cheque;
the amount of the cheque is a debt due by the person to the Commonwealth.
History
S 74 amended by No 97 of 2020, s 3 and Sch 1 item 7, by substituting ", 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021" for "or 2020 economic support payment" in para (a), effective 14 November 2020.
S 74 amended by No 22 of 2020, s 3 and Sch 4 item 7, by substituting ", ETR payment or 2020 economic support payment" for "or ETR payment" in para (a), effective 25 March 2020.
S 74 amended by No 50 of 2012, s 3 and Sch 1 item 7, by substituting ", clean energy advance or ETR payment" for "or clean energt advance" in para (a), effective 27 May 2012.
S 74 amended by No 141 of 2011, s 3 and Sch 2 item 8, by substituting ", single income family bonus or clean energy advance" for "or single income family bonus" in para (a), effective 14 May 2012.
S 74 amended by No 4 of 2009, s 3 and Sch 3 item 8, by substituting ", economic security strategy payment to families, back to school bonus or single income family bonus" for "or economic security strategy payment to families" in para (a), effective 18 February 2009.
S 74 amended by No 131 of 2008, s 3 and Sch 3 item 9, by substituting ", one-off payment to families or economic security strategy payment to families" for "or one-off payments to families" in para (a), effective 1 December 2008.
S 74 amended by No 60 of 2004, s 3 and Sch 1 item 7, by inserting "or one-off payment to families" after "family assistance" in para (a), effective 26 May 2004.
S 74 amended by No 45 of 2000. For transitional provisions see note under s 69.
SECTION 75
75
Debts arising from conviction of person for involvement in contravention of family assistance law by debtor
If:
(a)
a person (the
recipient
) is liable to repay an amount paid to the recipient under the family assistance law; and
(b)
the amount was paid to the recipient because the recipient contravened a provision of the family assistance law; and
(c)
another person is convicted of an offence:
(i)
that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code; or
(ii)
against section 11.4 or 11.5 of the Criminal Code;
in relation to that contravention;
the recipient and the other person are jointly and severally liable to pay the debt.
History
S 75 amended by No 4 of 2010, s 3 and Sch 10 item 2, by inserting "or 11.2A" after "11.2" in para (c)(i), effective 20 February 2010.
S 75(c) substituted by No 137 of 2001.
SECTION 76
76
Data-matching Program (Assistance and Tax) Act debts
If:
(a)
an amount has been paid to a person by way of family assistance; 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;
the amount so paid is recoverable by the Commonwealth.
SECTION 77
Notices in respect of debt
77(1)
If a debt by a person to the Commonwealth under a provision of this Part has not been wholly paid, the Secretary must give the person a notice specifying:
(a)
the date on which it was issued (the
date of the notice
); and
(b)
the reason the debt was incurred, including a brief explanation of the circumstances that led to the debt being incurred; and
(c)
the period to which the debt relates; and
(d)
the outstanding amount of the debt at the date of the notice; and
(e)
the day on which the outstanding amount is due and payable; and
(ea)
the effect of sections
78 and
78A; and
(f)
that a range of options is available for repayment of the debt; and
(g)
the contact details for inquiries concerning the debt.
History
S 77(1) amended by No 55 of 2016, s 3 and Sch 12 item 1, by inserting para (ea), effective 1 January 2017. No 55 of 2016, s 3 and Sch 12 item 46(2) contains the following application and transitional provision:
…
(2)
If:
(a)
before the commencement of this item, the Secretary gave a person a notice under subsection 77(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 in relation to a debt; and
(b)
the whole or a part of that debt is outstanding immediately before that commencement;
then, on or after the commencement of this item, the Secretary must give the person another notice under subsection 77(1) of that Act, as amended by this Act, in relation to the debt.
…
77(2)
The outstanding amount of the debt is due and payable on the 28th day after the date of the notice.
77(3)
The Secretary may give more than one notice under subsection (1) in relation to a person and a debt of the person.
History
S 77(3) substituted by No 55 of 2016, s 3 and Sch 12 item 2, effective 1 January 2017. S 77(3) formerly read:
77(3)
If the debt has not been wholly paid and:
(a)
the person has failed to enter into an arrangement under section 91 to pay the outstanding amount of the debt; or
(b)
the person has entered into an arrangement under that section but has failed to make a payment in accordance with the arrangement or, if the arrangement has been amended, in accordance with the arrangement as amended;
the Secretary may give to the person a further notice specifying:
(c)
the date on which it was issued (the
date of the further notice
); and
(d)
the matters mentioned in paragraphs (1)(b) to (g); and
(e)
the effect of sections 78 and 78B; and
(f)
how the interest under section 78 is to be calculated.
77(4)
(Repealed by No 55 of 2016)
History
S 77(4) repealed by No 55 of 2016, s 3 and Sch 12 item 2, effective 1 January 2017. S 77(4) formerly read:
77(4)
A notice given under subsection (1) may also specify the matters mentioned in paragraphs (3)(e) and (f) and, if it does so, it is taken also to be a further notice given under subsection (3).
History
S 77, 78, 78A and 78B substituted for s 77 and 78 by No 47 of 2001, s 3 and Sch 3 item 3, effective 1 July 2001. Act No 47 of 2001, Sch 3 item 17, contained the following application provisions:
(1)
The amendment:
(a)
applies to a person in respect of a debt owed by the person to the Commonwealth immediately before 1 July 2001 under the family assistance law if, and only if, the person had not, before that day, been given a notice in respect of the debt under subsection 77(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 as in force at any time before that day; and
(b)
applies to a person in respect of a debt owed by the person to the Commonwealth under the family assistance law that arises on or after that day.
(2)
To avoid doubt, sections 77 and 78 of the A New Tax System (Family Assistance) (Administration) Act 1999 as in force immediately before 1 July 2001 continue to apply to a person in respect of a debt owed by the person to the Commonwealth immediately before that day as mentioned in paragraph 77(1)(a) of that Act as so in force if the person had, before that day, been given a notice in respect of the debt under subsection 77(1) of that Act as in force at any time before that day.
S 77 formerly read:
Interest payable on debt for failure to enter agreement to pay debt
77(1)
If:
(a)
a person owes a debt to the Commonwealth under a provision of this Part; and
(b)
the person owing the debt is a person who is not receiving instalments of family tax benefit; and
(c)
the Secretary has given the person a notice asking the person to pay the debt; and
(d)
at the end of the period of 21 days after the notice is given, the person:
(i)
has not entered into negotiations to pay the debt; or
(ii)
has entered into negotiations to pay the debt, but has not entered into an agreement to pay the debt by reasonable instalments;
the Secretary may give the person a notice advising the person of the following:
(e)
the amount of the debt;
(f)
that, unless the person, within 14 days after the notice is given:
(i)
pays the whole of the debt; or
(ii)
enters into an agreement to pay the debt by reasonable instalments;
interest may become payable on the debt;
(g)
how any interest that becomes payable is to be calculated.
History
S 77(1) amended by No 45 of 2000, s 3 Sch 2 item 80, by substituting para (b), effective 1 July 2000. For transitional provisions see note under s 69. Para (b) formerly read:
(b)
the person owing the debt is a person who is not receiving instalments of family tax benefit; and
(i)
the person owing the debt is a person who is not receiving instalments of family assistance; or
(ii)
the person owing the debt is an approved child care service who is not receiving group payments; and
77(2)
Subject to subsection (3), if:
(a)
the whole of the debt is not paid within 14 days after the person is given the notice; or
(b)
the person does not enter into an agreement to pay the debt within the 14 day period;
interest is payable by way of penalty on the debt by the person and the amount of the interest is to be worked out under subsection (4).
77(3)
The Secretary may determine in writing that interest is not payable on the debt if the Secretary is satisfied that the person intends to pay the debt as soon as is reasonably practicable having regard to the circumstances of the person.
77(4)
Interest is payable on the amount of the debt (excluding interest) as remains due from time to time:
(a)
on and from the day after the 14 day period ends; and
(b)
at the penalty interest rate.
77(5)
If:
(a)
interest is payable on the debt; and
(b)
an amount is paid for the purpose of paying the debt and the interest;
the amount so paid is to be applied as follows:
(c)
until the debt (excluding interest) is fully paid-in satisfaction of the amount of the debt that is due when the payment is made;
(d)
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.
77(6)
If a person enters into an agreement to pay the debt by reasonable instalments, interest that would, apart from this subsection, become payable on the debt on and from the day on which the agreement is entered into is not payable.
77(7)
The interest that is payable on the debt is a debt due to the Commonwealth.
SECTION 78
Interest charge - no repayment arrangement in effect
78(1)
If:
(a)
a notice is given to a person under subsection
77(1) in relation to a debt; and
[
CCH Note:
No 55 of 2016, s 3 and Sch 12 item 46(1) provides that para (a) is applicable in relation to a notice given on or after 1 January 2017 (whether the debt arose before, on or after 1 January 2017).]
(b)
an amount (the
unpaid amount
) of the debt remains unpaid at the end of the day (the
due day
) on which the debt is due to be paid; and
(c)
at the end of the due day, there is no arrangement in effect under section
91 in relation to the debt;
then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).
Note:
For exemptions, see sections 78D and 78E.
78(2)
The period starts at the beginning of the day after the due day and ends at the end of the earlier of the following days:
(a)
the last day at the end of which any of the following remains unpaid:
(i)
the unpaid amount;
(ii)
interest charge on any of the unpaid amount;
(b)
the day before the first day, after the due day, on which the person makes a payment under an arrangement under section
91 in relation to the debt.
78(3)
The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a)
the unpaid amount;
(b)
the interest charge from previous days.
Note 1:
For
interest charge rate
see section 78C.
Note 2:
The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 78B.
History
S 78 substituted by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017. S 78 formerly read:
SECTION 78 Interest on debt
78(1)
This section applies to a person who:
(a)
receives a further notice given under subsection 77(3); and
(b)
is not receiving instalments of family tax benefit.
78(2)
If:
(a)
the person has not entered into an arrangement, on or before the final payment day, to pay the outstanding amount of the debt; and
(b)
the Secretary has notified the person in writing that the person will be required to pay interest under this subsection;
the person is liable to pay interest:
(c)
from and including the first day after the final payment day until the debt is wholly paid; and
(d)
at the penalty interest rate;
on the outstanding amount from time to time.
78(2A)
Under this section, a person is not liable 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.
78(3)
If:
(a)
the person has entered into an 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 Secretary has notified the person in writing that the person will be required to pay interest under this subsection;
the person is liable to pay interest:
(d)
if the failure occurs on or before the final payment day - from and including the first day after the final payment day until the debt is wholly paid; or
(e)
if the failure occurs after the final payment day - from and including the day after the day in respect of which the last payment in respect of the debt was made until the debt is wholly paid;
at the penalty interest rate, on the outstanding amount from time to time.
78(4)
For the purposes of subsections (2) and (3), the
final payment day
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 notice given under subsection 77(3);
(c)
if a request for review has been made within 90 days after the receipt of a notice issued under subsection 77(1) - 90 days after the day on which an authorised review officer makes a decision in respect of the request.
78(5)
The interest payable on the outstanding amount of a debt is a debt due to the Commonwealth.
78(6)
If:
(a)
interest is payable on the debt; and
(b)
an amount is paid for the purpose of paying the debt and the interest;
the amount so paid is to be applied as follows:
(c)
until the debt (excluding interest) is fully paid - in satisfaction of the amount of the debt that is due when the payment is made;
(d)
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.
78(7)
In this section:
arrangement
means:
(a)
an arrangement entered into with the Secretary under section 91; or
(b)
if such an arrangement has been amended - the arrangement as amended.
S 77, 78, 78A and 78B substituted for s 77 and 78 by No 47 of 2001, s 3 and Sch 3 item 3, effective 1 July 2001. For application provisions, see note under s 77. S 78 formerly read:
Interest payable on debt for breach of agreement to pay debt
78(1)
If:
(a)
a person owes a debt to the Commonwealth under a provision of this Part; and
(b)
the person owing the debt is a person who is not receiving instalments of family tax benefit; and
(c)
the person enters into an agreement to pay the debt by reasonable instalments; and
(d)
the person does not pay an instalment;
the Secretary may give the person a notice advising the person of the following:
(e)
the amount of the debt;
(f)
that, unless the person pays the instalment within 14 days after the notice is given, interest may become payable on the debt;
(g)
how any interest that becomes payable is to be calculated.
History
S 78(1) amended by No 45 of 2000, s 3 Sch 2 item 80, by substituting para (b), effective 1 July 2000. For transitional provisions see note under s 69. Para (b) formerly read:
(b)
the person owing the debt is a person who is not receiving instalments of family tax benefit; and
(i)
the person owing the debt is a person who is not receiving instalments of family assistance; or
(ii)
the person owing the debt is an approved child care service who is not receiving group payments; and
78(2)
Subject to subsections (3) and (4), if the instalment is not paid within 14 days after the person is given the notice, interest is payable by way of penalty on the debt by the person and the amount of interest is to be worked out under subsection (5).
78(3)
The Secretary may determine in writing that interest is not payable on the debt if the Secretary is satisfied that the person intends to pay the instalment as soon as is reasonably practicable having regard to the person's circumstances.
78(4)
Interest payable under subsection (2) ceases to accrue on and from the day the person:
(a)
next pays the instalment due under an agreement; or
(b)
enters into a new agreement;
whichever first occurs.
78(5)
Interest is payable on the amount of the debt (excluding interest) as remains due from time to time:
(a)
on and from the day after the 14 day period ends; and
(b)
at the penalty interest rate set under section 79.
78(6)
If:
(a)
interest is payable on the debt; and
(b)
an amount is paid for the purpose of paying the debt and interest;
the amount is to be applied as follows:
(c)
until the debt (excluding interest) is fully paid - in satisfaction of the amount of the debt that is due when the payment is made;
(d)
after the debt (excluding interest) is fully paid - in satisfaction of the interest that had become payable on the debt before it was fully paid.
78(7)
The interest payable on the debt is a debt due to the Commonwealth.
SECTION 78A
Interest charge - failure to comply with or termination of repayment arrangement
78A(1)
If:
(a)
an arrangement is in effect under section
91 in relation to a person and a debt; and
(b)
the person fails to make a payment under the arrangement;
[
CCH Note:
No 55 of 2016, s 3 and Sch 12 item 46(3) provides that para (b) is applicable in relation to a failure that occurs on or after 1 January 2017 (whether the arrangement was entered into before, on or after 1 January 2017).]
then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).
Note:
For exemptions, see sections 78D and 78E.
78A(2)
The period starts at the beginning of the day after the day (the
due day
) on which the payment was required to be made under the arrangement and ends at the end of the earliest of the following days:
(a)
the last day at the end of which any of the following remains unpaid:
(i)
the outstanding amount of the debt;
(ii)
interest charge on any of the outstanding amount of the debt;
(b)
the day before the first day, after the due day, on which the person has paid all the payments that have so far become due and payable under the arrangement;
(c)
the day before the day the arrangement is terminated under section
91.
78A(3)
The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a)
the outstanding amount of the debt;
(b)
the interest charge from previous days.
Note 1:
For
interest charge rate
see section 78C.
Note 2:
The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 78B.
Repayment arrangement is terminated
78A(4)
If:
(a)
an arrangement is in effect under section
91 in relation to a person and a debt; and
(b)
the arrangement is then terminated under section
91 on a day (the
termination day
);
[
CCH Note:
No 55 of 2016, s 3 and Sch 12 item 46(4) provides that para (b) is applicable in relation to a termination that occurs on or after 1 January 2017 (whether the arrangement was entered into before, on or after 1 January 2017).]
then:
(c)
the following amounts (if any) are due and payable on the 14th day after the termination day:
(i)
the outstanding amount of the debt;
(ii)
interest charge on any of the outstanding amount of the debt; and
(d)
if, at the end of that 14th day, any of those amounts remains unpaid, the person is liable to pay, by way of penalty, interest charge, worked out under subsection (6), for each day in the period described in subsection (5).
Note:
For exemptions, see sections 78D and 78E.
78A(5)
The period starts at the beginning of the day after that 14th day and ends at the end of the earlier of the following days:
(a)
the last day at the end of which any of the following remains unpaid:
(i)
the outstanding amount of the debt;
(ii)
interest charge on any of the outstanding amount of the debt;
(b)
the day before the first day, after that 14th day, on which the person makes a payment under another arrangement under section
91 in relation to the debt.
78A(6)
The interest charge for a day in the period described in subsection (5) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a)
the outstanding amount of the debt;
(b)
the interest charge from previous days.
Note 1:
For
interest charge
rate see section 78C.
Note 2:
The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 78B.
History
S 78A substituted by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017. S 78A formerly read:
SECTION 78A DETERMINATION THAT INTEREST NOT TO BE PAYABLE
78A(1)
The Secretary may determine that interest is not payable, or is not payable in respect of a particular period, by a person on the outstanding amount of a debt.
78A(1A)
The Secretary may make a determination under this section in circumstances that include (but are not limited to) the Secretary being satisfied that the person has a reasonable excuse for:
(a)
failing to enter into an arrangement under section 91 to pay the outstanding amount of the debt; or
(b)
having entered an arrangement, failing to make a payment in accordance with that arrangement.
78A(2)
The determination may relate to a period before, or to a period that includes a period before, the making of a determination.
78A(3)
The determination may be expressed to be subject to the person complying with one or more specified conditions.
78A(4)
If the person has been notified under subsection 78(2) or (3) that he or she will be required to pay interest under that subsection, the Secretary must give written notice of the determination to the person as soon as practicable after the determination is made.
78A(5)
Contravention of subsection (4) does not invalidate a determination.
78A(6)
If:
(a)
the determination is expressed to be subject to the person complying with one or more specified conditions; and
(b)
the person contravenes a condition or conditions without reasonable excuse;
the determination ceases to have effect from and including the day on which the contravention or the earliest of the contraventions occurred.
78A(7)
The Secretary may cancel or vary the determination by written notice given to the person.
S 77, 78, 78A and 78B substituted for s 77 and 78 by No 47 of 2001, s 3 and Sch 3 item 3, effective 1 July 2001. For application provisions, see note under s 77.
SECTION 78B
Other rules for interest charge
When interest charge is due and payable
78B(1)
The interest charge under section
78 or
78A for a day is due and payable to the Commonwealth at the end of that day.
Interest charge is a debt
78B(2)
The interest charge under section
78 or
78A for a day is a debt due to the Commonwealth by the person.
Provisions that do not apply to interest charge debt
78B(3)
Subsection
77(1) does not apply in relation to the debt referred to in subsection (2) of this section.
History
S 78B substituted by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017. S 78B formerly read:
SECTION 78B ADMINISTRATIVE CHARGE
78B(1)
When a person first becomes liable to pay interest under section 78 in respect of the outstanding amount of a particular debt, the person is liable to pay an administrative charge of $50 in respect of the outstanding amount of that debt.
78B(2)
An administrative charge payable by a person is a debt due to the Commonwealth.
S 77, 78, 78A and 78B substituted for s 77 and 78 by No 47 of 2001, s 3 and Sch 3 item 3, effective 1 July 2001. For application provisions, see note under s 77.
SECTION 78C
What is the
interest charge rate
?
78C(1)
For the purposes of sections
78 and
78A, the
interest charge rate
for a day is the rate worked out by adding 7 percentage points to the base interest rate for that day, and dividing that total by the number of days in the calendar year.
78C(2)
The
base interest rate
for a day depends on which quarter of the year the day is in. For each day in a quarter in column 1 of the table, it is the monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia for the month in column 2 of the table.
Base interest rate
|
Item
|
Column 1
For days in this quarter:
|
Column 2
the monthly average yield of 90-day Bank Accepted Bills for this month applies:
|
1 |
1 January to 31 March |
the preceding November |
2 |
1 April to 30 June |
the preceding February |
3 |
1 July to 30 September |
the preceding May |
4 |
1 October to 31 December |
the preceding August |
78C(3)
If the monthly average yield of 90-day Bank Accepted Bills for a particular month in column 2 of the table in subsection (2) is not published by the Reserve Bank of Australia before the beginning of the relevant quarter, assume that it is the same as the last monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia before that month.
78C(4)
The base interest rate must be rounded to the second decimal place (rounding .005 upwards).
History
S 78C inserted by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017.
SECTION 78D
Exemption from interest charge - general
78D(1)
A person is not liable to pay interest charge under section
78 or
78A if on the day before the start of the period in respect of which the person would otherwise have been liable to pay that charge:
(a)
the person is receiving instalments of family tax benefit; or
(b)
the person is receiving a social security payment; or
(c)
the person is receiving a payment of pension, veteran payment or allowance under the
Veterans' Entitlements Act 1986; or
(d)
the person is receiving instalments under the ABSTUDY scheme (also known as the Aboriginal Study Assistance Scheme) that includes an amount identified as living allowance; or
(e)
the person is receiving instalments under the Assistance for Isolated Children Scheme; or
(f)
the circumstances determined in an instrument under subsection (2) apply in relation to the person.
History
S 78D(1) amended by No 17 of 2018, s 3 and Sch 2 item 40, by inserting ", veteran payment" in para (c), effective 1 May 2018.
78D(2)
The Minister may, by legislative instrument, determine circumstances for the purposes of paragraph (1)(f).
History
S 78D inserted by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017.
SECTION 78E
Exemption from interest charge - Secretary's determination
78E(1)
The Secretary may determine that interest charge is not payable, or is not payable in respect of a particular period, by a person on the outstanding amount of a debt.
78E(2)
The Secretary may make a determination under this section in circumstances that include (but are not limited to) the Secretary being satisfied that the person has a reasonable excuse for:
(a)
failing to enter into an arrangement under section 91 to pay the outstanding amount of the debt; or
(b)
having entered an arrangement, failing to make a payment in accordance with that arrangement.
78E(3)
The determination may relate to a period before, or to a period that includes a period before, the making of the determination.
78E(4)
The determination may be expressed to be subject to the person complying with one or more specified conditions.
78E(5)
If the determination is expressed to be subject to the person complying with one or more specified conditions, the Secretary must give written notice of the determination to the person as soon as practicable after the determination is made.
78E(6)
If:
(a)
the determination is expressed to be subject to the person complying with one or more specified conditions; and
(b)
the person contravenes a condition or conditions without reasonable excuse;
the determination ceases to have effect from and including the day on which the contravention or the earliest of the contraventions occurred.
78E(7)
The Secretary may cancel or vary the determination by written notice given to the person.
History
S 78E inserted by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017.
SECTION 78F
78F
Guidelines on interest charge provisions
The Minister may, by legislative instrument, determine guidelines relating to the operation of the provisions of this Division dealing with interest charge.
History
S 78F inserted by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017.
SECTION 79
79
Penalty interest rate
(Repealed by No 55 of 2016)
History
S 79 repealed by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017. S 79 formerly read:
SECTION 79 Penalty interest rate
79(1)
The penalty interest rate is:
(a)
20% per year; or
(b)
if a lower rate is determined under subsection (2) - that lower rate.
79(2)
The Minister may, by legislative instrument, determine a rate of less than 20% per year that is to be the penalty interest rate.
History
S 79(2) amended by No 108 of 2006, s 3 and Sch 8 item 44, by substituting ", by legislative instrument, determine" for "determine, in writing,", effective 27 September 2006.
S 79(2) amended by No 47 of 2001, s 3 and Sch 3 item 4, by omitting "for the purposes of sections 77 and 78" after "interest rate", effective 1 July 2001.
79(3)
(Repealed by No 108 of 2006)
History
S 79(3) repealed by No 108 of 2006, s 3 and Sch 8 item 45, effective 27 September 2006. S 79(3) formerly read:
79(3)
A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
SECTION 79A
79A
GUIDELINES ON THE PENALTY INTEREST PROVISIONS
(Repealed by No 55 of 2016)
History
S 79A repealed by No 55 of 2016, s 3 and Sch 12 item 3, effective 1 January 2017. S 79A formerly read:
SECTION 79A
SECTION 79A GUIDELINES ON THE PENALTY INTEREST PROVISIONS
79A
The Minister must, not later than one month after:
(a)
the day on which the Family and Community Services and Veterans' Affairs Legislation Amendment (Debt Recovery) Act 2001 receives the Royal Assent; or
(b)
1 July 2001;
whichever is the later, and thereafter from time to time, by legislative instrument, determine guidelines for the operation of the provisions of this Act dealing with penalty interest.
79A(2)
(Repealed by No 108 of 2006)
History
S 79A(2) repealed by No 108 of 2006, s 3 and Sch 8 item 48, effective 27 September 2006.
79A(2)
A guideline determined under subsection (1) is a disallowable instrument.
S 79A amended by No 108 of 2006, s 3 and Sch 8 item 47, by substituting "by legislative instrument" for "by writing", effective 27 September 2006.
S 79A inserted by No 47 of 2001, s 3 and Sch 3 item 5, effective 1 July 2001.
SECTION 80
Debt from failure to comply with garnishee notice
80(1)
If:
(a)
a person (the
garnishee debtor
) is given a notice under section 89 in respect of a debt due by another person (the
original debtor
) under this Act; and
(b)
the garnishee debtor fails to comply with the notice to the extent that he or she is capable of complying with it;
then the amount of the debt outstanding (worked out under subsection (2)) is recoverable from the garnishee debtor by the Commonwealth by means of:
(c)
legal proceedings; or
(d)
garnishee notice.
80(2)
The amount of the debt outstanding is the amount equal to:
(a)
as much of the amount required by the notice under section 89 to be paid by the garnishee debtor as the garnishee debtor was able to pay; or
(b)
as much of the debt due by the original debtor at the time when the notice was given as remains due from time to time;
whichever is the lesser.
80(3)
If the Commonwealth recovers:
(a)
the whole or part of the debt due by the garnishee debtor under subsection (1); or
(b)
the whole or part of the debt due by the original debtor;
then:
(c)
both debts are reduced by the amount that the Commonwealth has so recovered; and
(d)
the amount specified in the notice under section 89 is to be taken to be reduced by the amount so recovered.
80(4)
This section applies to an amount in spite of any law of a State or Territory (however expressed) under which the amount is inalienable.
80(5)
This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
History
S 80(5) amended by No 59 of 2015, s 3 and Sch 2 item 54, by substituting "and of the Northern Territory" for ", of the Northern Territory and of Norfolk Island", effective 1 July 2016.
SECTION 81
81
Overseas application of provisions
Sections 71 to 75 extend to:
(a)
acts, omissions, matters and things outside Australia, whether in a foreign country or not; and
(b)
all persons (irrespective of nationality or citizenship).
Division 3-Methods of recovery
SECTION 82
METHODS OF RECOVERY
82(1)
A debt owed by a person is recoverable by the Commonwealth by one or more of the following means:
(a)
deductions from instalments of family tax benefit to which the person is entitled;
(b)
setting off family assistance to which the person is entitled against the debt;
(c)
setting off against one or more child care service payments that are to be made to the person;
(d)
repayment by instalments under an arrangement entered into under section 91;
(e)
if section 92 applies to another person who is entitled to be paid family tax benefit by instalment - deductions from that other person's instalments of family tax benefit;
(f)
if section 92A applies to another person who is entitled to family assistance - setting off (otherwise than as mentioned in paragraph (b)) the family assistance against the debt;
(g)
the application of an income tax refund owed to the person;
(h)
if section 93 applies to another person to whom an income tax refund is owed - the application of that refund;
(i)
legal proceedings;
(j)
garnishee notice.
Note:
For
child care service payment
see subsection 3(1).
History
S 82(1) substituted by No 22 of 2017, s 3 and Sch 1 item 98, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 82(1) formerly read:
82(1)
A debt owed by a person, other than an approved child care service, is recoverable by the Commonwealth by one or more of the following means:
(a)
deductions from instalments of family tax benefit to which the person is entitled;
(b)
setting off (otherwise than as mentioned in paragraph (a)) family assistance to which the person is entitled against the debt;
(c)
repayment by instalments under an arrangement entered into under section 91;
(d)
if section 92 applies to another person who is entitled to be paid family tax benefit by instalment - deductions from that other person's instalments of family tax benefit;
(e)
if section 92A applies to another person who is entitled to family assistance - setting off (otherwise than as mentioned in paragraph (d)) the family assistance against the debt;
(f)
the application of an income tax refund owed to the person;
(g)
if section 93 applies to another person to whom an income tax refund is owed - the application of that refund;
(h)
legal proceedings;
(i)
garnishee notice.
S 82(1) amended by No 53 of 2008, s 3 and Sch 3 items 3 and 4, by substituting "setting off (otherwise than as mentioned in paragraph (a))", for "setting off arrears of" in para (b) and "family assistance - setting off (otherwise than as mentioned in paragraph (d)) the family assistance" for "arrears of family assistance - setting off the arrears" in para (e), effective 25 June 2008.
S 82(1) amended by No 36 of 2006, s 3 and Sch 4 item 1, by omitting "However, a debt owed in relation to child care benefit is not recoverable by means of the application of an income tax refund under paragraph (f) or (g)" after para (i), applicable in relation to a debt against which an income tax refund is to be applied if both:
(a) the debt is determined on or after 1 July 2006; and
(b) the income tax refund is determined on or after 1 July 2007 (irrespective of the income year to which the refund relates).
S 82(1) amended by No 47 of 2001.
82(2)
(Repealed by No 22 of 2017)
History
S 82(2) repealed by No 22 of 2017, s 3 and Sch 1 item 98, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 82(2) formerly read:
82(2)
A debt owed by an approved child care service (the
first service
) is recoverable by the Commonwealth by one or more of the following means:
(a)
setting off the amount of the debt against one or more child care service payments that are to be made to the first service or to another approved child care service operated by the person who operates the first service;
Note:
For
child care service payment
see subsection 3(1).
(aa)
(Repealed by No 79 of 2011)
(b)
(Repealed by No 79 of 2011)
(c)
repayment by instalments under an arrangement entered into under section 91;
(d)
legal proceedings;
(e)
garnishee notice.
S 82(2) amended by No 79 of 2011 (as amended by No 91 of 2011), s 3 and Sch 1 items 7 and 8, by inserting "(the
first service
)" and substituting para (a) for paras (a) to (b), applicable in relation to payments that are to be made on or after 26 July 2011. Paras (a) to (b) formerly read:
(a)
setting off the amount of the debt against one or more payments under section 219Q or subsection 219QA(2) in respect of fee reduction;
(aa)
setting off the amount of the debt against one or more payments under section 219QC or subsection 219QD(2) in respect of child care rebate;
(b)
setting off the amount of the debt against one or more enrolment advances paid under section 219RA;
S 82(2) amended by No 25 of 2011, s 3 and Sch 1 item 35, by inserting para (aa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 82(2) substituted by No 118 of 2007, s 3 and Sch 1 item 39, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 82(2) formerly read:
82(2)
A debt owed by an approved child care service is recoverable by the Commonwealth by one or more of the following means:
(a)
setting off the amount of the debt against one or more amounts of advances paid under section 219R;
(ab)
repayment by instalments under an arrangement entered into under section 91;
(b)
legal proceedings;
(c)
garnishee notice.
S 82(2) amended by No 30 of 2003, s 3 and Sch 2 item 29, by inserting para (ab), effective 15 April 2003.
82(3)
In this section:
debt
means:
(a)
a debt due to the Commonwealth under section 71, 71A, 71B, 71C, 71D, 71E, 71F, 71G, 71H, 71I, 71J, 71K, 71L, 71M, 73, 74, 76, 77, 78B or 80; or
(b)
a debt due to the Commonwealth for which a person is liable because of section 75.
History
S 82(3) amended by No 22 of 2017, s 3 and Sch 1 item 99, by substituting "71D, 71E, 71F, 71G, 71H" for "71CAA, 71CAB, 71CA, 71CB, 71CAC, 71D, 71E, 71G, 71GA, 71GB, 71H" in para (a) of the definition of "debt", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 82(3) amended by No 55 of 2016, s 3 and Sch 12 item 4, by substituting "78B" for "78" in para (a) of the definition of "debt", effective 1 January 2017.
S 82(3) amended by No 50 of 2012, s 3 and Sch 1 item 8, by inserting "71M," in para (a) of the definition of "debt", effective 27 May 2012.
S 82(3) amended by No 141 of 2011, s 3 and Sch 2 item 9, by inserting "71L," in para (a) of the definition of "debt", effective 14 May 2012.
S 82(3) amended by No 25 of 2011, s 3 and Sch 1 items 36 and 37, by omitting "71CA," and inserting "71CA, 71CB," after "71CAB," in the definition of "debt", applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 82(3) amended by No 34 of 2010, s 3 and Sch 1 item 5, by inserting "71GB," after "71GA," in para (a) of the definition of "debt", effective 13 April 2010.
S 82(3) amended by No 50 of 2009, s 3 and Sch 3 item 4, by inserting "71CAC," after "71CAB," in para (a) of the definition of "debt", applicable in relation to:
(a) payments under, or purportedly under, Subdivision AA of Division 4AA of Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 1 July 2008; and
(b) payments under, or purportedly under, subsection 65EF(1) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2008; and
(c) payments under, or purportedly under, subsection 65EF(2D) of that Act in relation to care provided by an approved child care service to a child on or after 1 July 2007.
S 82(3) amended by No 4 of 2009, s 3 and Sch 3 item 9, by inserting "71K," after "71J," in para (a) of the definition of "debt", effective 18 February 2009.
S 82(3) amended by No 131 of 2008, s 3 and Sch 3 item 10, by inserting "71J," after "71I," in para (a) of the definition of "debt", effective 1 December 2008.
S 82(3) amended by No 113 of 2007, s 3 and Sch 1 item 14, by inserting "71CAA, 71CAB," in para (a) of the definition of "debt", effective 1 July 2007.
S 82(3) amended by No 118 of 2007, s 3 and Sch 1 item 40, by substituting "71C, 71CA, 71D, 71E, 71G, 71GA," for "71C, 71D, 71E, 71G" in para (a) of the definition of "debt", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 82(3) amended by No 60 of 2004, s 3 and Sch 1 item 8, by inserting "71I," after "71H," in para (a) of the definition of "debt", effective 26 May 2004.
S 82 substituted in Div 3 by No 45 of 2000. For transitional provisions see note under s 69. S 82 formerly read:
Recoverable debts
82(1)
A debt owed by a person, other than an approved child care service, is recoverable by the Commonwealth by means of:
(a)
deductions from family assistance payable to the person; or
(b)
if section 92 applies to another person to whom family assistance is payable - deductions from that other person's family assistance; or
(c)
the application of an income tax refund owed to the person; or
(d)
if section 93 applies to another person to whom an income tax refund is owed-the application of that refund; or
(e)
legal proceedings; or
(f)
garnishee notice.
However, a debt owed in relation to child care benefit is not recoverable by means of the application of an income tax refund under paragraph (c) or (d).
82(2)
A debt owed by an approved child care service for child care benefit is recoverable by the Commonwealth by means of:
(a)
if group payments are being made to the service-deductions from those payments; or
(b)
legal proceedings; or
(c)
garnishee notice.
82(3)
In this section:
debt
means:
(a)
a debt due to the Commonwealth under section 71, 73, 74, 76, 77 or 78; or
(b)
a debt due to the Commonwealth for which a person is liable because of section 75.
SECTION 83
83
Deductions from family assistance (general)
(Repealed by No 45 of 2000)
History
S 83 repealed by No 45 of 2000, s 3 Sch 2 item 81, effective 1 July 2000. For transitional provisions see note under s 69. S 83 formerly read:
83 Deductions from family assistance (general)
(1)
Sections 84, 85 and 92 provide for debt recovery by deductions from family assistance in the following situations:
(a)
section 84-recovery of a debt owed by a person who is receiving family assistance;
(b)
section 85-recovery of a debt owed by an approved child care service who is receiving group payments;
(c)
section 92-recovery of a debt by consent from a person other than the debtor.
(2)
For the purposes of this Division, a person is taken to be receiving family assistance even if the person is only to be paid a single payment (for example, a lump sum payment paid pursuant to a retrospective claim or a payment of arrears to cover earlier underpayments). In such a case, a deduction from the single payment may be made under the relevant section.
SECTION 84
Deductions from debtor's family tax benefit
84(1)
This section applies to a debt if:
(a)
under section 82, the debt is recoverable by the Commonwealth by means of deductions from instalments of family tax benefit to which the person is entitled; or
(b)
the debt is a debt due by the person to the Commonwealth under the Social Security Act 1991, the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Student Assistance Act 1973, the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or
(c)
the debt was incurred under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998.
History
S 84(1) amended by No 13 of 2014, s 3 and Sch 2 item 4, by substituting "Farm Household Support Act 2014" for "Farm Household Support Act 1992" in para (b), effective 1 July 2014 and applicable in relation to debts due under the Farm Household Support Act 1992 as if those amendments had not been made.
S 84(1) amended by No 105 of 2010, s 3 and Sch 1 item 30, by inserting ", the Paid Parental Leave Act 2010" after "the Farm Household Support Act 1992" in para (b), effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
S 84(1) amended by No 52 of 2004, s 3 and Sch 3 item 9, by substituting ", the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004" for "or the Veterans' Entitlements Act 1986" in para (b), effective 1 July 2004.
S 84(1) amended by No 30 of 2003, s 3 and Sch 2 item 30, by substituting paras (b) and (c) for para (b), effective 15 April 2003. Para (b) formerly read:
(b)
the debt is a debt due by a person to the Commonwealth under the Social Security Act 1991.
84(2)
The debt is to be deducted from instalments of family tax benefit to which the person is entitled in the following way:
(a)
the Secretary is to determine the amount by which each instalment of family tax benefit is to be reduced; and
(aa)
a determination under paragraph (a) may be an amount that would reduce the payment to nil if the person has consented to the amount of the deduction being an amount that would reduce the payment to nil; and
(b)
each instalment of family tax benefit isto be reduced by the amount determined by the Secretary until the sum of those amounts, and any amounts recovered under an Act referred to in paragraph (1)(b), is equal to the debt.
The Secretary may from time to time vary the amount by which instalments of family tax benefit are to be reduced.
History
S 84(2) amended by No 30 of 2003, s 3 and Sch 2 item 31, by substituting "an Act referred to in paragraph (1)(b)" for "the Social Security Act 1991" in para (b), effective 15 April 2003.
S 84(2)(aa) inserted by No 47 of 2001, s 3 and Sch 3 item 7, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 84 substituted by No 45 of 2000, s 3 Sch 2 item 82, effective 1 July 2000. For transitional provisions see note under s 69. S 84 formerly read:
Deductions from debtor's family assistance
(1)
This section applies to a debt if:
(a)
under section 82, the debt is recoverable by the Commonwealth by means of deductions from family assistance being received by a person; or
(b)
the debt is a debt due by a person to the Commonwealth under Chapter 5 of the Social Security Act 1991.
(2)
The debt is to be deducted from payments of family assistance to the person in the following way:
(a)
the Secretary is to determine the amount by which each payment of family assistance to the person is to be reduced; and
(b)
each payment of family assistance to the person is to be reduced by the amount determined by the Secretary until the sum of those amounts, and any amounts recovered under the Social Security Act 1991, is equal to the debt.
The Secretary may from time to time vary the amount by which payments of family assistance are to be reduced.
(3)
The debt is recoverable by means of deductions from a payment of child care benefit to be received by a person only if:
(a)
the debt arose from a payment of child care benefit received by the person; and
(b)
at the time the determination to recover the debt in that way is made:
(i)
it is not possible to recover the debt under this Division by means of deductions from family assistance (other than child care benefit); and
(ii)
it is not possible to recover the debts under Chapter 5 of the Social Security Act 1991 from a social security payment.
(4)
Subject to section 86, the debt must be deducted unless:
(a)
the Secretary takes action under Division 4 in relation to the amount; or
(b)
the amount is recovered by the Commonwealth under:
(i)
another provision of this Division; or
(ii)
under the Social Security Act 1991.
SECTION 84A
Setting off family assistance against debt owed
84A(1)
This section applies:
(a)
to a person if the person is entitled to an amount of family assistance; and
(b)
to a debt owed by the person if:
(i)
under section 82, the debt is recoverable by the Commonwealth by means of setting off family assistance to which the person is entitled against the debt; or
(ii)
the debt is a debt due by the person to the Commonwealth under the Social Security Act 1991, the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Student Assistance Act 1973, the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or
(iii)
the debt was incurred under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998.
History
S 84A(1) amended by No 13 of 2014, s 3 and Sch 2 item 5, by substituting "Farm Household Support Act 2014" for "Farm Household Support Act 1992" in para (b)(ii), effective 1 July 2014 and applicable in relation to debts due under the Farm Household Support Act 1992 as if those amendments had not been made.
S 84A(1) amended by No 105 of 2010, s 3 and Sch 1 item 31, by inserting ", the Paid Parental Leave Act 2010" after "the Farm Household Support Act 1992" in para (b)(ii), effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
S 84A(1) amended by No 53 of 2008, s 3 and Sch 3 items 5 and 6, by omitting "by way of arrears" before "an amount" in para (a) and "arrears of" after "setting off", in para (b)(i), effective 25 June 2008.
S 84A(1) amended by No 52 of 2004, s 3 and Sch 3 item 10, by substituting ", the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004" for "or the Veterans' Entitlements Act 1986" in para (b)(ii), effective 1 July 2004.
S 84A(1) amended by No 30 of 2003, s 3 and Sch 2 item 32, by substituting para (b)(ii) and (iii) for para (b)(ii), effective 15 April 2003. Para (b)(ii) formerly read:
(ii)
the debt is a debt due by the person to the Commonwealth under the Social Security Act 1991.
84A(2)
The Secretary may determine that the whole or a part of the entitlement is to be set off against the debt.
History
S 84A(2) amended by No 53 of 2008, s 3 and Sch 3 item 7, by omitting "to arrears" before "the entitlement", effective 25 June 2008.
84A(3)
Under subsection (2), the Secretary may set off a person's CCS or ACCS only against a debt the person incurs in relation to CCS or ACCS.
History
S 84A(3) substituted by No 22 of 2017, s 3 and Sch 1 item 100, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 84A(3) formerly read:
84A(3)
Under subsection (2), the Secretary may set off a person's child care benefit only against a debt the person incurs in relation to child care benefit or child care rebate.
S 84A(3) amended by No 50 of 2009, s 3 and Sch 1 item 28, by substituting "child care rebate" for "child care tax rebate", effective 24 June 2009.
S 84A(3) substituted by No 53 of 2008, s 3 and Sch 3 item 8, effective 25 June 2008. S 84A(3) formerly read:
84A(3)
Under subsection (2), the Secretary may set off a person's arrears of child care benefit only against a debt the person incurs in relation to child care benefit.
84A(4)
If the Secretary makes a determination under subsection (2), the amount of the entitlement and the amount of the debt are reduced accordingly.
History
S 84A(4) amended by No 53 of 2008, s 3 and Sch 3 item 9, by omitting "to arrears" before "the entitlement", effective 25 June 2008.
S 84A inserted by No 45 of 2000, s 3 Sch 2 item 82, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 85
85
Deductions from group payments made to approved child care service
(Repealed by No 45 of 2000)
History
S 85 repealed by No 45 of 2000, s 3 Sch 2 item 83, effective 1 July 2000. For transitional provisions see note under s 69. S 85 formerly read:
SECTION 85 Deductions from group payments made to approved child care service
85(1)
This section applies to a debt if, under section 82, the debt is recoverable by the Commonwealth by means of deductions from group payments being received by an approved child care service.
85(2)
The debt is to be deducted from group payments being received by the service in the following way:
(a)
the Secretary is to determine the amount by which each group payment is to be reduced; and
(b)
each group payment to the service is to be reduced by the amount determined by the Secretary until the sum of those amounts is equal to the debt.
The Secretary may from time to time vary the amount by which the group payments are to be reduced.
85(3)
Subject to section 86, the debt must be deducted unless:
(a)
the Secretary takes action under Division 4 in relation to the amount; or
(b)
the amount is recovered by the Commonwealth under another provision of this Division.
SECTION 86
86
Time limits on recovery action under sections 84, 84A and 87A
(Repealed by No 55 of 2016)
History
S 86 repealed by No 55 of 2016, s 3 and Sch 13 item 18, effective 1 January 2017. For application provision, see note under s 93B.
SECTION 86 Time limits on recovery action under sections 84, 84A and 87A
86(1)
Subject to subsections (3), (4) and (5), action under section 84, 84A or 87A for the recovery of a debt is not to be commenced after the end of the period 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.
History
S 86(1) substituted for s 86(1) and (2) by No 47 of 2001, s 3 and Sch 3 item 7A, applicable to:
(a) debts that are owed at the commencement of 1 July 2001: and
(b) debts that arise after that time.
S 86(1) formerly read:
86(1)
Subject to subsections, (3), (4) and (5), action under section 84, 84A or 87A for the recovery of a debt is not to be commenced after the end of the period of 6 years starting on the day on which the debt arose.
S 86(1) amended by No 45 of 2000, s 3 Sch 2 item 84, by substituting "under section 84, 84A or 87A" for "under this section, or section 84 or 85,", effective 1 July 2000. For transitional provisions see note under s 69.
86(2)
(Repealed by No 47 of 2001)
History
S 86(1) substituted for s 86(1) and (2) by No 47 of 2001, s 3 and Sch 3 item 7A, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 86(2) formerly read:
86(2)
If the debt arose because the person owing the debt:
(a)
made a false statement or false representation; or
(b)
contravened a provision of the family assistance law;
action under section 84, 84A or 87A for the recovery of the debt may be commenced at any time within the period 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.
S 86(2) amended by No 45 of 2000, s 3 Sch 2 item 85, by inserting ", 84A or 87A" after "section 84", effective 1 July 2000. For transitional provisions see note under s 69.
86(3)
If:
(a)
subsection (1) applies so that action under section 84, 84A or 87A for the recovery of a debt must be commenced within a particular period; and
(b)
within that period part of the amount owing is paid;
action under that section for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment.
History
S 86(3) amended by No 47 of 2001, s 3 and Sch 3 item 7B, by omitting "or (2)" after "subsection (1)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 86(3) amended by No 45 of 2000, s 3 Sch 2 item 86, by substituting ", 84A or 87A" for "or 85" in para (a), effective 1 July 2000. For transitional provisions see note under s 69.
86(4)
If:
(a)
subsection (1) applies so that action under section 84, 84A or 87A for the recovery of a debt must be commenced within a particular period; and
(b)
within that period, the person who owes the amount acknowledges that he or she owes it;
action under that section for the recovery of the debt may be commenced within the period of 6 years starting on the day of acknowledgment.
History
S 86(4) amended by No 47 of 2001, s 3 and Sch 3 item 7B, by omitting "or (2)" after "subsection (1)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 86(4) amended by No 45 of 2000, s 3 Sch 2 item 87, by substituting ", 84A or 87A" for "or 85" in para (a), effective 1 July 2000. For transitional provisions see note under s 69.
86(5)
If:
(a)
subsection (1) applies so that action under section 84, 84A or 87A for the recovery of a debt must be commenced within a particular period; and
(b)
within that period:
(i)
action is taken under section 87, 88 or 89 for the recovery of the debt; or
(ii)
a review of a file relating to action for the recovery of the debt occurs; or
(iii)
other internal Departmental activity relating to action for the recovery of the debt occurs;
action under section 84, 84A or 87A for the recovery of the debt may be commenced within the period of 6 years after the end of the activity or action referred to in paragraph (b).
History
S 86(5) amended by No 47 of 2001, s 3 and Sch 3 item 7B, by omitting "or (2)" after "subsection (1)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 86(5) amended by No 45 of 2000, s 3 Sch 2 items 88 to 90, by substituting ", 84A or 87A" for "or 85" (first and second occurring) and by substituting subpara (b)(i), effective 1 July 2000. For transitional provisions see note under s 69. Subpara (b)(i) formerly read:
(i)
action is taken under this section, or section 88 or 89, for the recovery of the debt; or
S 86 amended by No 79 of 2011, s 3 and Sch 1 item 9, by substituting "or 87A" for ", 87A or 87B" (wherever occurring), effective 26 July 2011.
S 86 amended by No 118 of 2007, s 3 and Sch 1 item 41, by substituting ", 87A or 87B" for "or 87A" (wherever occurring), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 87
Application of income tax refund owed to person
87(1)
If, under section 82, a debt owed by a person is recoverable by the Commonwealth by means of application of an income tax refund payable to the person, the Commissioner of Taxation may apply the whole or a part of the refund to the debt.
87(2)
The amount of the refund and the amount of the debt are reduced accordingly.
87(3)
(Repealed by No 55 of 2016)
History
S 87(3) repealed by No 55 of 2016, s 3 and Sch 13 item 19, effective 1 January 2017. For application provision, see note under s 93B. S 87(3) formerly read:
87(3)
Subject to subsection (4), action under this section for the recovery of a debt is not to be taken after the end of the period 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.
S 87(3) amended by No 47 of 2001, s 3 and Sch 3 item 7C, by substituting "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" for "the day on which the debt arose", applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
87(4)
(Repealed by No 55 of 2016)
History
S 87(4) repealed by No 55 of 2016, s 3 and Sch 13 item 19, effective 1 January 2017. For application provision, see note under s 93B. S 87(4) formerly read:
87(4)
If:
(a)
action is taken under this section to recover a debt owed by a person from an income tax refund that relates to a particular income year; and
(b)
the action is taken within 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; and
(c)
the amount of the refund is not sufficient to reduce the amount of the debt to nil;
action may be taken under this section to apply an income tax refund payable to the person for a later income year to the remainder of the debt.
S 87(4) amended by No 47 of 2001, s 3 and Sch 3 item 7D, by substituting "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" for "the day on which the debt arose" in para (b), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
SECTION 87A
Setting off debts of an approved provider against child care service payments
87A(1)
This section applies if a debt owed by an approved provider is to be recovered by the Commonwealth by means of setting off the debt against a payment referred to in paragraph 82(1)(c) (child care service payments).
[
CCH Note:
No 79 of 2011, s 3 and Sch 1 item 34(2) contains the following application provisions:
(2)
Subsection 87A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999, as amended by this Act, applies in relation to:
(a)
debts arising on or after the commencement of this item; and
(b)
debts arising before that commencement, to the extent that the debts were outstanding immediately before that commencement.
]
History
S 87A(1) substituted by No 22 of 2017, s 3 and Sch 1 item 102, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 87A(1) formerly read:
87A(1)
This section applies if a debt owed by an approved child care service is to be recovered by the Commonwealth by means of setting off the debt against a payment referred to in paragraph 82(2)(a).
87A(2)
The Secretary must determine the amount by which the payment is to be reduced. The determination has effect accordingly.
87A(3)
A determination under subsection (2) may cover one or more payments and may make different provision for different payments.
87A(4)
The Secretary may vary a determination under subsection (2).
87A(5)
If a payment is reduced by an amount in accordance with this section, the debt is reduced by that amount.
87A(6)
A determination under subsection (2) is not a legislative instrument.
History
S 87A substituted by No 79 of 2011, s 3 and Sch 1 item 10, effective 26 July 2011. No 79 of 2011, s 3 and Sch 1 item 34(3) contains the following application provisions:
(3)
The amendment made by item 10 does not affect the validity of any action taken under section 87A or 87B of the A New Tax System (Family Assistance) (Administration) Act 1999 before the commencement of that item.
S 87A formerly read:
SECTION 87A Setting off debts of an approved child care service against enrolment advances to be paid to the service
87A(1)
This section applies to a debt owed by an approved child care service if, under section 82, the debt is recoverable by the Commonwealth by means of setting off the debt against amounts of one or more enrolment advances to be paid to an approved child care service under section 219RA.
History
S 87A(1) amended by No 118 of 2007, s 3 and Sch 1 item 42, by substituting "enrolment advances to be paid to an approved child care service under section 219RA" for "advances to be paid to an approved child care service under section 219R", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
87A(2)
The debt is to be set off, against advances paid to the service, in the following way:
(a)
the Secretary is to determine the amount by which each advance to the service is to be reduced; and
(b)
each advance to the service is to be reduced by the amount determined by the Secretary until the sum of those amounts, and of any amounts by which any amount in respect of fee reduction is reduced under section 87B in relation to the setting off of the debt, is equal to the debt.
The Secretary may, from time to time, vary the amount by which the advances are to be reduced.
History
S 87A(2) amended by No 34 of 2010, s 3 and Sch 1 item 6, by substituting ", and of any amounts by which any amount in respect of fee reduction is reduced under section 87B in relation to the setting off of the debt," for "and any amounts by which the advance is reduced under section 87B" in para (b), effective 13 April 2010.
S 87A(2) amended by No 118 of 2007, s 3 and Sch 1 item 43, by inserting "and any amounts by which the advance is reduced under section 87B" after "the sum of those amounts" in para (b), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
87A(3)
The amount of the debt and the amounts of the advances are reduced accordingly.
S 87A inserted by No 45 of 2000, s 3 Sch 2 item 91, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 87B
87B
Setting off debts of an approved child care service against amounts to be paid to the service in respect of fee reduction
(Repealed by No 79 of 2011)
History
S 87B repealed by No 79 of 2011, s 3 and Sch 1 item 10, effective 26 July 2011. For application provisions see note under s 87A. S 87B formerly read:
SECTION 87B Setting off debts of an approved child care service against amounts to be paid to the service in respect of fee reduction
87B(1)
This section applies to a debt owed by an approved child care service if, under section 82, the debt is recoverable by the Commonwealth by means of setting off the debt against amounts to be paid under section 219Q or subsection 219QA(2) in respect of fee reduction.
87B(2)
The debt is to be set off, against the amount paid to the service in respect of fee reduction, in the following way:
(a)
the Secretary is to determine the amount by which each amount paid to the service in respect of a fee reduction is to be reduced;
(b)
each amount paid to the service in respect of a fee reduction is to be reduced by the amount determined by the Secretary until the sum of those amounts, and of any amounts by which any advance is reduced under section 87A in relation to the setting off of the debt, is equal to the debt.The Secretary may, from time to time, vary the amount by which the amounts paid to the service in respect of fee reduction are to be reduced.
History
S 87B(2) amended by No 34 of 2010, s 3 and Sch 1 item 7, by substituting ", and of any amounts by which any advance is reduced under section 87A in relation to the setting off of the debt," for "and any amounts by which the advance is reduced under section 87A" in para (b), effective 13 April 2010.
87B(3)
The amount of the debt and amounts paid to the service in respect of fee reduction are reduced accordingly.
S 87B inserted by No 118 of 2007, s 3 and Sch 1 item 44, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 88
88
Legal proceedings
If, under section 82, a debt is recoverable by the Commonwealth by means of legal proceedings, the debt is recoverable by the Commonwealth in a court of competent jurisdiction.
History
S 88(1) amended by No 55 of 2016, s 3 and Sch 13 item 20, by omitting "(1)" before "If, under", effective 1 January 2017. For application provision, see note under s 93B.
88(2)
(Repealed by No 55 of 2016)
History
S 88(2) repealed by No 55 of 2016, s 3 and Sch 13 item 21, effective 1 January 2017. For application provision, see note under s 93B. S 88(2) formerly read:
88(2)
Subject to subsections (4), (5) and (6), legal proceedings for the recovery of the debt are not to be commenced after the end of the period 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.
S 88(2) substituted for s 88(2) and (3) by No 47 of 2001, s 3 and Sch 3 item 7E, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 88(2) formerly read:
88(2)
Subject to subsections (3), (4), (5) and (6), legal proceedings for the recovery of the debt are not to be commenced after the end of the period of 6 years starting on the day on which the debt arose.
88(3)
(Repealed by No 47 of 2001)
History
S 88(2) substituted for s 88(2) and (3) by No 47 of 2001, s 3 and Sch 3 item 7E, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 88(3) formerly read:
88(3)
If the debt arose because the person owing the debt:
(a)
made a false statement or false representation; or
(b)
contravened a provision of the family assistance law;
legal proceedings for the recovery of the debt may be commenced at any time within the period 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 giving rise to the debt.
88(4)
(Repealed by No 55 of 2016)
History
S 88(4) repealed by No 55 of 2016, s 3 and Sch 13 item 21, effective 1 January 2017. For application provision, see note under s 93B. S 88(4) formerly read:
88(4)
If:
(a)
subsection (2) applies so that legal proceedings for the recovery of a debt must be commenced within a particular period; and
(b)
within that period part of the amount owing is paid;
legal proceedings for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment.
S 88(4) amended by No 47 of 2001, s 3 and Sch 3 item 7F, by omitting "or (3)" after "subsection (2)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
88(5)
(Repealed by No 55 of 2016)
History
S 88(5) repealed by No 55 of 2016, s 3 and Sch 13 item 21, effective 1 January 2017. For application provision, see note under s 93B. S 88(5) formerly read:
88(5)
If:
(a)
subsection (2) applies so that legal proceedings for the recovery of a debt must be commenced within a particular period; and
(b)
within that period, the person who owes the amount acknowledges that he or she owes it;
legal proceedings for the recovery of the debt may be commenced within the period of 6 years starting on the day of acknowledgment.
S 88(5) amended by No 47 of 2001, s 3 and Sch 3 item 7F, by omitting "or (3)" after "subsection (2)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
88(6)
(Repealed by No 55 of 2016)
History
S 88(6) repealed by No 55 of 2016, s 3 and Sch 13 item 21, effective 1 January 2017. For application provision, see note under s 93B. S 88(6) formerly read:
88(6)
If:
(a)
subsection (2) applies so that action for the recovery of a debt must be commenced within a particular period; and
(b)
within that period:
(i)
action is taken under this section, or section 84, 84A, 87, 87A or 89, for the recovery of the debt; or
(ii)
a review of a file relating to action for the recovery of the debt occurs; or
(iii)
other internal Departmental activity relating to action for the recovery of the debt occurs;
action for the recovery of the debt may be commenced within the period of 6 years after the end of the activity or action referred to in paragraph (b).
S 88(6) amended by No 79 of 2011, s 3 and Sch 1 item 11, by omitting ", 87B" from para (b)(i), applicable on and after 26 July 2011 as if a reference in those subparagraphs to section 87A of that Act included a reference to sections 87A and 87B of that Act as in force at any time before that commencement.
S 88(6) amended by No 118 of 2007, s 3 and Sch 1 item 45, by substituting "87A, 87B or" for "87A or" in para (b)(i), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 88(6) amended by No 47 of 2001, s 3 and Sch 3 item 7F, by omitting "or (3)" after "subsection (2)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 88(6) amended by No 45 of 2000, s 3 Sch 2 items 92 to 94, by substituting "action" for "action under this section" (first and second occurring) and by substituting "84A, 87, 87A" for "85" in subpara (b)(i), effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 89
Garnishee notice
89(1)
If, under section 82, a debt is recoverable from a person (the
debtor
) by the Commonwealth by means of a garnishee notice, the Secretary may by written notice given to another person:
(a)
by whom any money is due or accruing, or may become due, to the debtor; or
(b)
who holds or may subsequently hold money for or on account of the debtor; or
(c)
who holds or may subsequently hold money on account of some other person for payment to the debtor; or
(d)
who has authority from some other person to pay money to the debtor;
require the person to whom the notice is given to pay the Commonwealth:
(e)
an amount specified in the notice, not exceeding the amount of the debt or the amount of the money referred to in paragraph (a), (b), (c) or (d); or
(f)
such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied; or
(g)
such percentage as is specified in the notice of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied.
89(2)
The time for making a payment in compliance with a notice under subsection (1) is such time as is specified in the notice, not being a time before the money concerned becomes due or is held or before the end of the period of 14 days after the notice is given.
89(3)
A person must not refuse or fail to comply with a notice under subsection (1) to the extent to which the person is capable of complying with the notice.
Penalty: Imprisonment for 12 months.
89(4)
If the Secretary gives a notice to a person under subsection (1), the Secretary must give a copy of the notice to the debtor.
89(5)
A person who makes a payment to the Commonwealth in compliance with a notice under subsection (1) is to be taken to have made the payment under the authority of the debtor and of any other person concerned.
89(6)
If:
(a)
a notice is given to a person under subsection (1) in respect of a debt; and
(b)
an amount is paid by another person in reduction or in satisfaction of the debt;
the Secretary must notify the first-mentioned person accordingly, and the amount specified in the notice is to be taken to be reduced by the amount so paid.
89(7)
If, apart from this subsection, money is not due or repayable on demand to a person unless a condition is fulfilled, the money is to be taken, for the purposes of this section, to be due or repayable on demand, as the case may be, even though the condition has not been fulfilled.
89(8)
This section applies to money in spite of any law of a State or Territory (however expressed) under which the amount is inalienable.
89(9)
This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
History
S 89(9) amended by No 59 of 2015, s 3 and Sch 2 item 55, by substituting "and of the Northern Territory" for ", of the Northern Territory and of Norfolk Island", effective 1 July 2016.
SECTION 90
90
Time limits on recovery action under section 89
(Repealed by No 55 of 2016)
History
S 90 repealed by No 55 of 2016, s 3 and Sch 13 item 22, effective 1 January 2017. For application provision, see note under s 93B. S 90 formerly read:
SECTION 90 Time limits on recovery action under section 89
90(1)
Subject to subsections (3), (4) and (5), action under section 89 for the recovery of a debt is not to be commenced after the end of the period 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.
History
S 90(1) substituted for s 90(1) and (2) by No 47 of 2001, s 3 and Sch 3 item 7G, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 90(1) formerly read:
90(1)
Subject to subsections (2), (3), (4) and (5), action under section 89 for the recovery of a debt is not to be commenced after the end of the period of 6 years starting on the day on which the debt arose.
90(2)
(Repealed by No 47 of 2001)
History
S 90(1) substituted for s 90(1) and (2) by No 47 of 2001, s 3 and Sch 3 item 7G, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 90(2) formerly read:
90(2)
If the debt arose because the person owing the debt:
(a)
made a false statement or false representation; or
(b)
contravened a provision of the family assistance law;
action under section 89 for the recovery of the debt may be commenced at any time within the period 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.
90(3)
If:
(a)
subsection (1) applies so that action under section 89 for the recovery of a debt must be commenced within a particular period; and
(b)
within that period part of the amount owing is paid;
action under that section for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment.
History
S 90(3) amended by No 47 of 2001, s 3 and Sch 3 item 7H, by omitting "or (2)" after "subsection (1)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
90(4)
If:
(a)
subsection (1) applies so that action under section 89 for the recovery of a debt must be commenced within a particular period; and
(b)
within that period, the person who owes the amount acknowledges that he or she owes it;
action under that section for the recovery of the debt may be commenced within the period of 6 years starting on the day of acknowledgment.
History
S 90(4) amended by No 47 of 2001, s 3 and Sch 3 item 7H, by omitting "or (2)" after "subsection (1)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
90(5)
If:
(a)
subsection (1) applies so that action under section 89 for the recovery of a debt must be commenced within a particular period; and
(b)
within that period:
(i)
action is taken under section 84, 84A, 87, 87A or 88 for the recovery of the debt; or
(ii)
a review of a file relating to action for the recovery of the debt occurs; or
(iii)
other internal Departmental activity relating to action for the recovery of the debt occurs;
action under section 89 for the recovery of the debt may be commenced within the period of 6 years after the end of the activity or action referred to in paragraph (b).
History
S 90(5) amended by No 79 of 2011, s 3 and Sch 1 item 12, by omitting ", 87B" from para (b)(i), applicable on and after 26 July 2011 as if a reference in those subparagraphs to section 87A of that Act included a reference to sections 87A and 87B of that Act as in force at any time before that commencement.
S 90(5) amended by No 118 of 2007, s 3 and Sch 1 item 46, by substituting "87A, 87B or" for "87A or" in para (b)(i), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 90(5) amended by No 47 of 2001, s 3 and Sch 3 item 7H, by omitting "or (2)" after "subsection (1)" in para (a), applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 90(5) amended by No 45 of 2000, s 3 Sch 2 item 95, by substituting subpara (b)(i), effective 1 July 2000. For transitional provisions see note under s 69. Subpara (b)(i) formerly read:
(i)
action is taken under this section, or section 84, 85 or 88, for the recovery of the debt; or
SECTION 91
Arrangement for payment of debt by instalments
91(1)
The Secretary may, on behalf of the Commonwealth, enter into an arrangement with a person, other than an approved provider, who owes a debt under which the person is to pay the debt, or the outstanding amount of the debt, by instalments in accordance with the terms of the arrangement.
History
S 91(1) amended by No 22 of 2017, s 3 and Sch 1 item 103, by substituting "provider" for "child care service", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 91(1) and (1A) substituted for s 91(1) by No 30 of 2003, s 3 and Sch 2 item 33, effective 15 April 2003. S 91(1) formerly read:
91(1)
If, under section 82, a debt owed by a person is recoverable by the Commonwealth by repayment by instalments under an arrangement entered into under this section, the Secretary may, on behalf of the Commonwealth, enter into an arrangement with the person under which the person is to pay the debt, or the outstanding amount of the debt, in a way set out in the arrangement.
91(1A)
The Secretary may, on behalf of the Commonwealth, enter into an arrangement with an approved provider that owes a debt under which the provider is to pay the debt, or the outstanding amount of the debt, by instalments in accordance with the terms of the arrangement.
History
S 91(1A) amended by No 22 of 2017, s 3 and Sch 1 items 103 and 104, by substituting "provider" for "child care service" and "the provider" for "the service", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 91(1) and (1A) substituted for s 91(1) by No 30 of 2003, s 3 and Sch 2 item 33, effective 15 April 2003.
91(1B)
If a payment is required to be made under an arrangement entered into under subsection (1) or (1A) before the end of a particular day, the payment must be made before the end of that day.
History
S 91(1B) inserted by No 55 of 2016, s 3 and Sch 12 item 5, applicable in relation to a requirement to make a payment on or after 1 January 2017 (whether the arrangement was entered into before, on or after 1 January 2017).
91(2)
An arrangement entered into under subsection (1) or (1A) has effect, or is taken to have had effect, on and after the day specified in the arrangement as the day on which the arrangement commences (whether that day is the day on which the arrangement is entered into or an earlier or later day).
History
S 91(2) amended by No 30 of 2003, s 3 and Sch 2 item 34, by substituting "subsection (1) or (1A)" for "subsection (1)", effective 15 April 2003.
91(3)
If an arrangement entered into under subsection (1) or (1A) does not specify a day as mentioned in subsection (2), it has effect on and after the day on which it is entered into.
History
S 91(3) amended by No 30 of 2003, s 3 and Sch 2 item 34, by substituting "subsection (1) or (1A)" for "subsection (1)", effective 15 April 2003.
91(4)
The Secretary may terminate or alter an arrangement entered into under subsection (1) or (1A):
(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.
History
S 91(4) substituted by No 30 of 2003, s 3 and Sch 2 item 35, effective 15 April 2003. S 91(4) formerly read:
91(4)
The Secretary may terminate or alter an arrangement entered into under subsection (1):
(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 person has failed to disclose material information about his or her true capacity to repay the debt.
91(5)
In this section:
debt
means a debt recoverable by the Commonwealth under Division 2.
History
S 91(5) amended by No 30 of 2003, s 3 and Sch 2 item 36, by substituting "this section" for "subsection (1)", effective 15 April 2003.
S 91 substituted by No 47 of 2001, s 3 and Sch 3 item 8, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 91 formerly read:
Secretary may allow payment of debt by instalments
91(1)
If, under section 82, a debt owed by a person is recoverable by the Commonwealth by one or more instalments, the Secretary may, on behalf of the Commonwealth, decide to allow a person to pay a debt in one or more instalments.
History
S 91(1) amended by No 45 of 2000, s 3 Sch 2 item 96, by substituting "If, under section 82, a debt owed by a person is recoverable by the Commonwealth by one or more instalments, the" for "The", effective 1 July 2000. For transitional provisions see note under s 69.
91(2)
A decision made under subsection (1) takes effect:
(a)
if no day is specified in the decision - on the day on which the decision is made; or
(b)
if a day is specified in the decision - on the day so specified (whether that day is before, after or on the day on which the decision is made).
91(3)
In subsection (1):
debt
means a debt recoverable by the Commonwealth under Division 2.
SECTION 92
Deduction by consent from a person's family tax benefit to meet another person's debt
92(1)
If:
(a)
a person (the
debtor
):
(i)
has a debt under this Act or under the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Social Security Act 1991, the Student Assistance Act 1973, the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or
(ii)
had incurred a debt under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998; and
(b)
another person (the
consenting person
) is entitled to be paid family tax benefit by instalment; and
(c)
for the purpose of the recovery of the debt, the consenting person consents to the deduction of an amount from the consenting person's instalments;
the Secretary may deduct the amount from the consenting person's instalments of family tax benefit.
History
S 92(1) amended by No 13 of 2014, s 3 and Sch 2 item 5, by substituting "Farm Household Support Act 2014" for "Farm Household Support Act 1992" in para (a)(i), effective 1 July 2014 and applicable in relation to debts due under the Farm Household Support Act 1992 as if those amendments had not been made.
S 92(1) amended by No 105 of 2010, s 3 and Sch 1 item 31, by inserting ", the Paid Parental Leave Act 2010" after "the Farm Household Support Act 1992" in para (a)(i), effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
S 92(1) amended by No 52 of 2004, s 3 and Sch 3 item 10, by substituting ", the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004" for "or the Veterans' Entitlements Act 1986" in para (a)(i), effective 1 July 2004.
S 92(1) amended by No 30 of 2003, s 3 and Sch 2 item 37, by substituting ", the Student Assistance Act 1973 or the Veterans' Entitlements Act 1986" for "or the Student Assistance Act 1973" in para (a)(ii), effective 15 April 2003.
92(2)
The debtor's debt is reduced by an amount equal to the amount deducted from the consenting person's family tax benefit.
92(3)
The consenting person may revoke the consent at any time.
History
S 92 substituted by No 45 of 2000, s 3 and Sch 2 item 97, effective 1 July 2000. For transitional provisions see note under s 69. S 92 formerly read:
Deductions by consent from family assistance of person who is not a debtor
92(1)
If:
(a)
a person (the
debtor
) incurs a debt under this Act; and
(b)
another person (the
consenting person
) is receiving family assistance; and
(c)
for the purpose of the recovery of the debt, the consenting person consents to the deduction of an amount from the consenting person's family assistance;
the Secretary may deduct the amount from the consenting person's family assistance.
92(2)
A person may not consent under subsection (1) to deductions being made from the person's child care benefit.
92(3)
The debtor's debt is reduced by an amount equal to the amount deducted from the consenting person's family assistance.
92(4)
The consenting person may revoke the consent at any time.
SECTION 92A
Setting off family assistance of person against another person's debt
92A(1)
If:
(a)
a person (the
debtor
): debtor
(i)
has a debt under this Act or under the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Social Security Act 1991, the Student Assistance Act 1973, the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or
(ii)
had incurred a debt under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998; and
(b)
another person (the
consenting person
) is entitled to an amount of family assistance (except family tax benefit to which section 92 applies); and
(c)
for the purpose of the recovery of the debt, the consenting person consents to the deduction of an amount from the consenting person's entitlement;
the Secretary may determine that the whole or a part of the entitlement is to be set off against the debt.
History
S 92A(1) amended by No 13 of 2014, s 3 and Sch 2 item 5, by substituting "Farm Household Support Act 2014" for "Farm Household Support Act 1992" in para (a)(i), effective 1 July 2014 and applicable in relation to debts due under the Farm Household Support Act 1992 as if those amendments had not been made.
S 92A(1) amended by No 105 of 2010, s 3 and Sch 1 item 31, by inserting ", the Paid Parental Leave Act 2010" after "the Farm Household Support Act 1992" in para (a)(i), effective 1 October 2010. For transitional provisions, see note under s 3(1), definition of "early claim day".
S 92A(1) amended by No 53 of 2008, s 3 and Sch 3 items 10 to 12, by substituting "of family assistance (except family tax benefit to which section 92 applies)" for "by way of arrears of family assistance" in para (b), substituting "entitlement" for "arrears" in para (c) and omitting "to arrears" before "the entitlement", effective 25 June 2008.
S 92A(1) amended by No 52 of 2004, s 3 and Sch 3 item 10, by substituting ", the Veterans' Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004" for "or the Veterans' Entitlements Act 1986" in para (a)(i), effective 1 July 2004.
S 92A(1) amended by No 30 of 2003, s 3 and Sch 2 item 38, by substituting ", the Student Assistance Act 1973 or the Veterans' Entitlements Act 1986" in para (a)(i), effective 15 April 2003.
92A(2)
Subsection (1) does not apply to an entitlement to be paid CCS or ACCS.
History
S 92A(2) substituted by No 22 of 2017, s 3 and Sch 1 item 105, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 92A(2) formerly read:
92A(2)
Subsection (1) does not apply to an entitlement to child care benefit or child care rebate.
S 92A(2) amended by No 50 of 2009, s 3 and Sch 1 item 29, by substituting "child care rebate" for "child care tax rebate", effective 24 June 2009.
S 92A(2) amended by No 53 of 2008, s 3 and Sch 3 item 13, by omitting "arrears of " after "entitlement to", effective 25 June 2008.
S 92A(2) amended by No 113 of 2007, s 3 and Sch 1 item 15, by inserting "or child care tax rebate", effective 1 July 2007.
92A(3)
If the Secretary makes a determination under subsection (1), the amount of the entitlement and the amount of the debt are reduced accordingly.
History
S 92A(3) amended by No 53 of 2008, s 3 and Sch 3 item 14, by omitting "to arrears" before "the entitlement", effective 25 June 2008.
92A(4)
The consenting person may revoke the consent at any time.
History
S 92A inserted by No 45 of 2000, s 3 and Sch 2 item 97, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 93
Application of income tax refund owed to another person
93(1)
If:
(a)
a person (the
debtor
) has a debt under this Act; and
(b)
another person (the
consenting person
) is entitled to an income tax refund; and
(c)
for the purpose of the recovery of the debt, the consenting person consents to the application of an amount from the consenting person's refund to the debt;
the Commissioner of Taxation may apply the whole or a part of the refund to the debt.
History
S 93(1) amended by No45 of 2000, s 3 and Sch 2 item 98, by substituting ``has'' for ``incurs'' in para (a), effective 1 July 2000. For transitional provisions see note under s 69.
93(2)
The amount of the refund and the amount of the debt are reduced accordingly.
93(3)
The consenting person may revoke the consent at any time.
SECTION 93A
Recovery of amounts from financial institutions
93A(1)
If:
(a)
a family assistance payment or family assistance payments are made to a financial institution for the credit of an account kept with the institution; and
(b)
the Secretary is satisfied that the payment or payments were intended to be paid to someone who was not the person or one of the persons in whose name or names the account was kept;
the Secretary may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:
(c)
an amount specified in the notice, being the amount, or the sum of the amounts, of the family assistance payment or family assistance payments;
(d)
the amount standing to the credit of the account when the notice is given to the institution.
93A(2)
If:
(a)
a family assistance payment or family assistance payments that are intended to be paid to a person are made to a financial institution for the credit of an account that was kept with the institution by the person or by the person and one or more other persons; and
(b)
the person died before the payment or payments were made;
the Secretary may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:
(c)
an amount specified in the notice, being the amount, or the sum of the amounts, of the family assistance payment or family assistance payments;
(d)
the amount standing to the credit of the account when the notice is received by the institution.
93A(2A)
As soon as possible after issuing a notice under subsection (2), 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.
93A(3)
A financial institution must comply with a notice given to it under subsection (1) or (2).
Penalty: 300 penalty units.
93A(4)
It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (1) or (2) if the financial institution proves that it was incapable of complying with the notice.
93A(5)
If a notice is given to a financial institution under subsection (1) (payment made to wrong account) or under subsection (2) (death of person in whose name the account was kept) in respect of a family assistance payment or family assistance payments, any amount recovered by the Commonwealth from the institution in respect of the debt reduces any debt owed to the Commonwealth by any other person in respect of the family assistance payment or family assistance payments.
93A(6)
In this section:
family assistance payment
means:
(a)
a payment of family tax benefit, stillborn baby payment, family tax benefit advance, CCS or ACCS; or
(aa)
a payment of single income family supplement; or
(ab)
(Repealed by No 96 of 2014)
(b)
a payment under section 67EB (fee reduction amount); or
(ba)-(bb)
(Repealed by No 22 of 2017)
(bc)
a payment under section 205A or 205C (business continuity payments); or
(bd)-(bf)
(Repealed by No 22 of 2017)
(c)
a payment of one-off payment to families; or
(d)
a payment of economic security strategy payment to families; or
(e)
a payment of back to school bonus or single income family bonus; or
(f)
a payment of clean energy advance; or
(g)
a payment of ETR payment; or
(h)
a payment of 2020 economic support payment; or
(i)
a payment of additional economic support payment 2020; or
(j)
a payment of additional economic support payment 2021.
History
S 93A(6) amended by No 26 of 2021, s 3 and Sch 1 item 8, by inserting "or 205C" in para (bc) in the definition of "family assistance payment", effective 27 March 2021. For application provisions, see note under s 205C.
S 93A(6) amended by No 97 of 2020, s 3 and Sch 1 item 8, by inserting para (i) and (j) in the definition of "family assistance payment", effective 14 November 2020.
S 93A(6) amended by No 22 of 2020, s 3 and Sch 4 item 8, by inserting para (h) in the definition of "family assistance payment", effective 25 March 2020.
S 93A(6) amended by No 125 of 2019, s 3 and Sch 1 item 52, by substituting "section 205A" for "section 219RD" in para (bc) in the definition of "family assistance payment", effective 16 December 2019.
S 93A(6) amended by No 22 of 2017, s 3 and Sch 1 items 106-108, by substituting para (a), (b) and repealing para (ba), (bb) and (bd) to (bf) in the definition of "family assistance payment", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (a), (b), (ba), (bb) and (bd) to (bf) formerly read:
(a)
a payment of family tax benefit, stillborn baby payment, child care benefit or family tax benefit advance; or
(b)
a payment under section 219Q or subsection 219QA(2) (payments in respect of fee reduction); or
(ba)
a payment under section 219QC or subsection 219QD(2) (payments in respect of child care rebate); or
(bb)
a payment of an enrolment advance under section 219RA; or
(bd)
a payment of child care rebate under section 65EAAC (including as that section applies because of subsection 65EAAF(2)); or
(be)
a payment of child care rebate under section 65EAA (including as that section applies because of subsection 65EAB(2)); or
(bf)
a payment of child care rebate under section 65EF; or
S 93A(6) amended by No 96 of 2014, s 3 and Sch 9 item 18, by repealing para (ab) in the definition of "family assistance payment", effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. Para (ab) formerly read:
(ab)
a payment of schoolkids bonus; or
S 93A(6) amended by No 70 of 2013, s 3 and Sch 2A item 43, by substituting "stillborn baby payment" for "baby bonus" in para (a) in the definition of "family assistance payment", effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading.
S 93A(6) amended by No 49 of 2012, s 3 and Sch 6 item 29, by substituting para (a) in the definition of "family assistance payment", effective 1 July 2012. Para (a) formerly read:
(a)
a payment of a benefit, allowance or advance that constitutes family assistance within the meaning of the Family Assistance Act; or
S 93A(6) amended by No 50 of 2012, s 3 and Sch 1 item 9, and Sch 2 item 16, by inserting para (ab) and (g) in the definition of "family assistance payment", effective 27 May 2012.
S 93A(6) amended by No 141 of 2011, s 3 and Sch 8 item 13, by inserting para (aa) in the definition of "family assistance payment", applicable in relation to the 2012-13 income year and later income years.
S 93A(6) amended by No 141 of 2011, s 3 and Sch 2 item 10, by inserting para (f) in the definition of "family assistance payment", effective 14 May 2012.
S 93A(6) amendedby No 25 of 2011, s 3 and Sch 1 item 38, by substituting paras (b) to (bf) for paras (b) to (bb) in the definition of "family assistance payment", applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). No 25 of 2011, s 3 and Sch 1 item 80 contains the following application provision:
80 Continued application of section 93A of the Family Assistance Administration Act
80
The amendment made by item 38 of this Schedule does not affect section 93A of the Family Assistance Administration Act as it applies in relation to payments made before the commencement of that item.
Paras (b) to (bb) formerly read:
(b)
a payment under section 219Q or subsection 219QA(2) (payments in respect of fee reduction); or
(ba)
a payment of an enrolment advance under section 219RA; or
(baa)
a payment under section 219RD (business continuity payments); or
(bb)
a payment of child care rebate under section 65EAA (including as that section applies because of subsection 65EAB(2)) or 65EF; or
S 93A(6) amended by No 34 of 2010, s 3 and Sch 1 item 8, by inserting para (baa) in the definition of "family assistance payment", effective 13 April 2010.
S 93A(6) amended by No 50 of 2009, s 3 and Sch 1 item 30, by substituting "child care rebate" for "child care tax rebate" in para (bb) of the definition of "family assistance payment", effective 24 June 2009.
S 93A(6) amended by No 4 of 2009, s 3 and Sch 3 item 10, by inserting para (e) at the end of the definition of "family assistance payment", effective 18 February 2009.
S 93A(6) amended by No 131 of 2008, s 3 and Sch 3 item 11, by inserting para (d) at the end of the definition of "family assistance payment", effective 1 December 2008.
S 93A(6) amended by No 53 of 2008, s 3 and Sch 2 item 18, by inserting "65EAA (including as that section applies because of subsection 65EAB(2)) or" in para (bb) of the definition of "family assistance payment", applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 93A(6) amended by No 113 of 2007, s 3 and Sch 1 item 16, by inserting para (bb) in the definition of "family assistance payment", effective 1 July 2007.
S 93A(6) amended by No 118 of 2007, s 3 and Sch 1 item 47, by substituting paras (b) and (ba) for para (b) of the definition of "family assistance payment", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (b) formerly read:
(b)
a payment of an advance determined under section 219Q; or
S 93A(6) amended by No 60 of 2004, s 3 and Sch 1 item 9, by inserting para (c) in the definition of "family assistance payment", effective 26 May 2004.
S 93A(6) inserted by No 30 of 2003, s 3 and Sch 2 item 39, effective 15 April 2003.
History
S 93A inserted by No 47 of 2000.
SECTION 93B
93B
No time limit on debt recovery action
For the purposes of this Part, legal proceedings, or any action under a provision of this Part, for the recovery of a debt may be commenced or taken at any time.
History
S 93B inserted by No 55 of 2016, s 3 and Sch 13 item 23, effective 1 January 2017. No 55 of 2016, s 3 and Sch 13 item 39 contains the following application provision:
39 Application provisions - family assistance amendments
(1)
The amendments apply in relation to:
(a)
a debt that arises on or after the commencement of this item; and
(b)
a debt that arose before the commencement of this item, to the extent that the debt was outstanding immediately before that commencement.
(2)
Paragraph (1)(b) applies in relation to a debt only if, immediately before the commencement of this item, action under section 84, 84A, 87, 87A or 89, or legal proceedings under section 88, of the A New Tax System (Family Assistance) (Administration) Act 1999 could be commenced or taken for the recovery of the debt.
Division 4 - Non-recovery of debts
SECTION 94
94
Meaning of
debt
In this Division:
debt
means a debt recoverable by the Commonwealth under Division 2.
SECTION 94A
Time for recovering certain CCS debts
94A(1)
This section applies if:
(a)
an individual incurs a debt under subsection 71B(1) or 71C(1) in relation to an amount of CCS; and
(b)
the debt is incurred because the individual does not meet the CCS reconciliation conditions for an income year by the first deadline for the income year.
94A(2)
The Secretary need not pursue recovery of the debt before the second deadline for the income year.
Note:
It is possible for the individual to become entitled again to the amount of the CCS by meeting the CCS reconciliation conditions for the income year.
History
S 94A(2) amended by No 26 of 2021, s 3 and Sch 1 item 47, by substituting "for the income year" for "by the second deadline" in the note, effective 27 March 2021 and applicable in relation to the 2018-19 income year and each later income year. For application provisions, see note under s 205C.
History
S 94A inserted by No 22 of 2017, s 3 and Sch 1 item 109, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 95
Secretary may write off debt
95(1)
The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.
History
S 95(1) substituted byNo 61 of 2005, s 3 and Sch 3 item 14, effective 1 January 2006. No 61 of 2005, s 3 and Sch 3 item 17 contains the following application provision:
17 Application of items 14 to 16
(1)
The amendments made by items 14 to 16 apply in respect of a cancellation income year or a particular income year (as the case requires), that is the 2000-2001 income year or a later income year.
(2)
However, the amendments made by those items apply in respect of the 2000-2001 income year as if paragraphs 95(4A)(a) and (c) of the A New Tax System (Family Assistance) (Administration) Act 1999 referred to the income year that began immediately after the cancellation income year mentioned in subsection 28(1) of that Act (instead of the income year that began 2 years after the beginning of the cancellation income year).
S 95(1) formerly read:
95(1)
Subject to subsection (2), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.
95(2)
The Secretary may decide to write off a debt under subsection (1) 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.
History
S 95(2) amended by No 61 of 2005, s 3 and Sch 3 item 15, by omitting ", and only if" after "under subsection (1) if", effective 1 January 2006. For application provision, see note under s 95(1).
S 95(2) amended by No 47 of 2001, s 3 and Sch 3 item 10, by omitting "the debt cannot be recovered by deductions under this Act or the Social Security Act 1991 and" at the beginning of para (d), effective 1 July 2001.
95(3)
For the purposes of paragraph (2)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)
(Repealed by No 55 of 2016)
(b)
there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)
the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud;
or
(d)
the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
[
CCH Note:
S 95(3) will be amended by No 22 of 2017, s 3 and Sch 1 item 110, by substituting para (a)(iia), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (a)(iia) will read:
(iia)
setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments); or
]
History
S 95(3) amended by No 55 of 2016, s 3 and Sch 13 item 24, by repealing para (a), effective 1 January 2017. For application provision, see note under s 93B. Para (a) formerly read:
(a)
the debt cannot be recovered by means of:
(i)
deductions under section 84; or
(iaa)
deductions under section 1231 of the Social Security Act 1991; or
(ia)
setting off under section 84A family assistance; or
(ii)
application of an income tax refund under section 87; or
(iia)
setting off under section 87A against a payment referred to in paragraph 82(2)(a); or
(iib)
(Repealed by No 79 of 2011)
(iii)
legal proceedings under section 88; or
(iv)
garnishee notice under section 89;
because the relevant time limit for recovery action under that section has elapsed; or
S 95(3) amended by No 79 of 2011, s 3 and Sch 1 items 13 and 14, by substituting "a payment referred to in paragraph 82(2)(a)" for "enrolment advances" in para (a)(iia) and repealing para (a)(iib), effective 26 July 2011. Para (a)(iib) formerly read:
(iib)
setting off under section 87B against payments in respect of fee reduction; or
S 95(3) amended by No 53 of 2008, s 3 and Sch 3 item 15, by omitting "arrears of" before "family assistance" in para (a)(ia), effective 23 June 2008.
S 95(3) amended by No 118 of 2007, s 3 and Sch 1 item 48, by substituting para (a)(iia) and (iib) for para (a)(iia), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (a)(iia) formerly read:
(iia)
setting off under section 87A against advances; or
S 95(3) amended by No 47 of 2001, s 3 and Sch 3 item 11, by inserting para (iaa), effective 1 July 2001.
S 95(3) amended by No 47 of 2001, s 3 and Sch 3 item 12, by substituting "the debtor became bankrupt" for "the discharge" in para (c), applicable to a person who is discharged from bankruptcy on or after 1 July 2001.
S 95(3) amended by No 45 of 2000, s 3 Sch 2 items 99 and 100, by substituting paras (a)(i) and (a)(ia) for para (a)(i) and by inserting para (a)(iia) after para (a)(ii), effective 1 July 2000. For transitional provisions see note under s 69. Para (a)(i) formerly read:
(i)
deductions under section 84 or 85; or
95(4)
For the purposes of paragraph (2)(b), if a debt is recoverable by means of:
(a)
deductions under section 84; or
(aa)
deductions under section 1231 of the Social Security Act 1991; or
(b)
setting off under section 84A family assistance; or
(c)
application of an income tax refund under section 87; or
(d)
setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments);
(e)
(Repealed by No 79 of 2011)
the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.
History
S 95(4) amended by No 22 of 2017, s 3 and Sch 1 item 111, by substituting para (d), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (d) formerly read:
(d)
setting off under section 87A against a payment referred to in paragraph 82(2)(a);
S 95(4) amended by No 79 of 2011, s 3 and Sch 1 items 15 and 16, by substituting "a payment referred to in paragraph 82(2)(a);" for "enrolment advances; or" in para (d) and repealing para (e), effective 26 July 2011. Para (e) formerly read:
(e)
setting off under section 87B against payments in respect of fee reduction;
S 95(4) amended by No 53 of 2008, s 3 and Sch 3 item 16, by omitting "arrears of" before "family assistance" in para (b), effective 25 June 2008.
S 95(4) amended by No 118 of 2007, s 3 and Sch 1 items 49 and 50, by substituting "enrolment advances" for "advances" in para (d) and inserting para (e), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 95(4) amended by No 47 of 2001, s 3 and Sch 3 item 13, by inserting para (aa), effective 1 July 2001.
S 95(4) substituted by No 45 of 2000, s 3 Sch 2 item 101, effective 1 July 2000. For transitional provisions see note under s 69. S 95(4) formerly read:
95(4)
For the purposes of paragraph (2)(b):
(a)
if a debt is recoverable by means of:
(i)
deductions under section 84; or
(ii)
application of an income tax refund under section 87;
the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship; and
(b)
if a debt is recoverable by means of deductions under section 85, the person is taken to have the capacity to repay the debt.
Secretary may write off subsection 28(2) or (6) debt if claimant and partner separate
95(4A)
The Secretary may, under subsection (1), decide to write off a debt arising because of subsection 28(2) or (6) (which deal with when income tax returns have not been lodged) if the following conditions are met:
(a)
the claimant and the partner mentioned in subparagraph 28(1)(b)(iii) (the
ex-partner
) ceased to be members of the same couple after the end of the income year after the cancellation income year mentioned in subsection 28(1);
(b)
if the claimant was required to lodge an income tax return for the cancellation income year - an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant's taxable income for the cancellation income year;
(c)
in any case - the ex-partner was required to lodge an income tax return for the cancellation income year but still had not done so by the time when the claimant and the ex-partner ceased to be members of the same couple.
History
S 95(4A) amended by No 70 of 2013, s 3 and Sch 2B item 47, by substituting "after" for "(the
later income year
) that began 2 years after the beginning of" in para (a), effective 28 June 2013.
S 95(4A) inserted by No 61 of 2005, s 3 and Sch 3 item 16, effective 1 January 2006. For application provisions, see note under s 95(1).
Debt arising because of CCS reconciliation conditions not being met if claimant and partner separate
95(4B)
The Secretary may, under subsection (1), decide to write off a debt arising because of subsection 105E(2) (review if CCS reconciliation conditions not met) in relation to an income year (the
relevant income year
) if:
(a)
the debtor, and an individual who was a TFN determination person for the purposes of a determination under Division 3 of Part 3A for the claimant in relation to sessions of care provided in CCS fortnights starting in the relevant income year, ceased to be members of the same couple after the end of the income year after the relevant income year; and
(b)
if the debtor was required to lodge an income tax return for the relevant income year - the Commissioner of Taxation has made an assessment of the taxable income for the relevant income year of the debtor; and
(c)
the other individual was required to lodge an income tax return for the relevant income year but had not done so at the time the debtor and the other individual ceased to be members of the same couple.
History
S 95(4B) substituted by No 22 of 2017, s 3 and Sch 1 item 112, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 95(4B) formerly read:
Secretary may write off subsection 60D(2) debt if claimant and partner separate
95(4B)
The Secretary may, under subsection (1), decide to write off a debt arising because of subsection 60D(2) (which deals with when income tax returns have not been lodged) if the following conditions are met:
(a)
the claimant and the partner mentioned in paragraph 60D(1)(b) (the
ex-partner
) ceased to be members of the same couple after the end of the second income year following the particular income year mentioned in paragraph 60D(1)(a);
(b)
if the claimant was required to lodge an income tax return for the particular income year - an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant's taxable income for the particular income year;
(c)
in any case - the ex-partner was required to lodge an income tax return for the particular income year but still had not done so by the time when the claimant and the ex-partner ceased to be members of the same couple.
S 95(4B) inserted by No 61 of 2005, s 3 and Sch 3 item 16, effective 1 January 2006. For application provision, see note under s 95(1).
When decision under subsection (1) takes effect
95(5)
A decision made under subsection (1) takes effect:
(a)
if no day is specified in the decision - on the day on which the decision is made; or
(b)
if a day is specified in the decision - on the day so specified (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
95(6)
Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.
SECTION 96
Power to waive Commonwealth's right to recover debt
96(1)
On behalf of the Commonwealth, the Secretary may waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 97, 98, 99, 100, 101 or 102.
96(2)
A waiver takes effect:
(a)
on the day specified in the waiver (whether that day is before, after or on the day on which the decision to waive is made);
or
(b)
if the waiver does not specify when it takes effect-on the day on which the decision to waive is made.
SECTION 97
Waiver of debt arising from error
97(1)
The Secretary must waive the right to recover the proportion (the
administrative error proportion
) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
97(2)
The Secretary must waive the administrative error proportion of a debt if:
(a)
the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b)
the person would suffer severe financial hardship if it were not waived.
97(3)
The Secretary must waive the administrative error proportion of a debt if:
(a)
the payment or payments were made in respect of the debtor's eligibility for family assistance for a period or event (the
eligibility period or event
) that occurs in an income year; and
(b)
the debt is raised after the end of:
(i)
the debtor's next income year after the one in which the eligibility period or event occurs; or
(ii)
the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c)
the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
97(4)
For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.
SECTION 98
Waiver of debt relating to an offence
98(1)
If:
(a)
a debtor has been convicted of an offence that gave rise to a proportion of a debt; 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;
the Secretary must waive the right to recover the proportion of the debt that arose in connection with the offence.
98(2)
For the purposes of this section, a proportion of a debt may be 100% of the debt.
SECTION 99
Waiver of small debt
99(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.
99(2)
Subsection (1) does not apply if the debt is at least $50 and could be recovered:
(a)
by deductions under:
(i)
section 84 of this Act; or
(ii)
section 1231 of the Social Security Act 1991; or
(b)
by setting off under section 84A family assistance; or
(c)
by setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments).
(d)
(Repealed by No 79 of 2011)
History
S 99(2) amended by No 22 of 2017, s 3 and Sch 1 item 113, by substituting para (c), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (c) formerly read:
(c)
by setting off under section 87A against a payment referred to in paragraph 82(2)(a).
S 99(2) amended by No 79 of 2011, s 3 and Sch 1 items 17 and 18, by substituting "a payment referred to in paragraph 82(2)(a)." for "enrolment advances; or" in para (c) and repealing para (d), effective 26 July 2011. Para (d) formerly read:
(d)
by setting off under section 87B against payments in respect of fee reduction.
S 99(2) amended by No 53 of 2008, s 3 and Sch 3 item 17, by omitting "arrears of" before "family assistance" in para (b), effective 25 June 2008.
S 99(2) amended by No 118 of 2007, s 3 and Sch 1 items 51 and 52, by substituting "enrolment advances" for "advances" in para (c) and inserting para (d) at the end, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 99(2) substituted by No 45 of 2000, s 3 Sch 2 item 102. For transitional provisions see note under s 69. S 99(2) formerly read:
99(2)
Subsection (1) does not apply if the debt is at least $50 and could be recovered by deductions under:
(a)
section 84 or 85 of this Act; or
(b)
section 1231 of the Social Security Act 1991.
SECTION 100
Waiver in relation to settlements
Settlement of civil action
100(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
100(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.
[
CCH Note:
S 100(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" in the heading and "ART" and "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
Waiver where at least 80% of debt recovered and debtor cannot pay more
100(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 remaining 20% or less of the value of the original debt.
Agreement for part-payment in satisfaction of outstanding debt
100(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 of the debt outstanding at the time of the agreement (the
unpaid amount
), the Secretary must 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
100(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.
History
S 100(5) substituted by No 47 of 2001, s 3 and Sch 3 item 15, applicable to:
(a) debts that are owed at the commencement of 1 July 2001; and
(b) debts that arise after that time.
S 100(5) formerly read:
100(5)
The Secretary must not make an agreement described in subsection (4) unless the Secretary is satisfied that:
(a)
the debtor cannot repay more of the debt than the agreed amount; and
(b)
the agreed amount is at least the present value of the unpaid amount repaid in instalments whose amount and timing is determined by the Secretary; and
(c)
it would take at least a year to recover the unpaid amount under Division 2 if subsection (4) did not apply.
Formula for working out present value of unpaid amount
100(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 2 in a year if subsection (4) did not apply in relation to the debt.
interest
is the annual rate of interest specified by the Minister by legislative instrument.
rp
(repayment period) is the number of years needed to repay the unpaid amount if repayments equal to the annual repayment were made each year.
History
S 100(6) amended by No 108 of 2006, s 3 and Sch 8 item 49, by substituting "legislative instrument" for "determination in writing" in the definition of "interest", effective 27 September 2006.
100(7)
(Repealed by No 108 of 2006)
History
S 100(7) repealed by No 108 of 2006, s 3 and Sch 8 item 50, effective 27 September 2006. S 100(7) formerly read:
Determination is a disallowable instrument
100(7)
A determination for the purposes of the definition of
interest
in subsection (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
SECTION 101
101
Waiver in 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 statement or a false representation; or
(ii)
failing or omitting to comply with a provision of the family assistance law; and
(b)
there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)
it is more appropriate to waive than to write off the debt or part of the debt.
SECTION 102
Secretary may waive debts of a particular class
102(1)
The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth's right to recover debts, or parts of debts, arising under or as a result of this Act that are included in a class of debts specified by the Minister by legislative instrument.
History
S 102(1) amended by No 108 of 2006, s 3 and Sch 8 item 51, by substituting "legislative instrument" for "determination in writing", effective 27 September 2006.
S 102(1) amended by No 138 of 2001, s 3 and Sch 1 item 1, by inserting ``, or parts of debts,'' after ``recover debts'', effective 1 October 2001.
102(1A)
An instrument made by the Minister under subsection (1):
(a)
may specify conditions to be met before the Secretary exercises the power to waive debts, or parts of debts, in the specified class; and
(b)
may specify limits on the amounts to be waived in relation to debts in the specified class.
The Secretary must exercise the power to waive in accordance with any conditions or limits specified in the instrument.
History
S 102(1A) amended by No 108 of 2006, s 3 and Sch 8 items 52 and 53, by substituting "An instrument made" for "A determination" and substituting "instrument" for "Minister's determination", effective 27 September 2006.
S 102(1A) inserted by No 138 of 2001, s 3 and Sch 1 item 2, effective 1 October 2001.
102(2)
A decision under subsection (1) takes effect:
(a)
if no day is specified in the decision-on the day on which the decision is made; or
(b)
if a day is specified in the decision-on the day so specified (whether that day is before, after or on the day on which the decisionis made).
102(3)
(Repealed by No 108 of 2006)
History
S 102(3) repealed by No 108 of 2006, s 3 and Sch 8 item 54, effective 27 September 2006. S 102(3) formerly read:
102(3)
A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 5 - Departure prohibition orders
History
Div 5 inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
Subdivision A - Secretary may make departure prohibition orders
History
Subdiv A inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102A
Secretary may make departure prohibition orders
102A(1)
The Secretary may make an order (a
departure prohibition order
) prohibiting a person from departing from Australia for a foreign country if:
(a)
the person has one or more debts to the Commonwealth under this Part; and
(b)
there are not arrangements satisfactory to the Secretary for the one or more debts to be wholly paid; and
(c)
the Secretary believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i)
having wholly paid the one or more debts; or
(ii)
there being arrangements satisfactory to the Secretary for the one or more debts to be wholly paid.
Matters to be taken into account in making order
102A(2)
Before making an order under this section, the Secretary must have regard to the following matters:
(a)
the capacity of the person to pay the one or more debts;
(b)
whether any action has been taken to recover any such debt, and the outcome of the recovery action;
(c)
the length of time for which any such debt has remained unpaid after the day on which it became due and payable;
(d)
such other matters as the Secretary considers appropriate.
Form of order
102A(3)
A departure prohibition order must be in a form approved by the Secretary.
History
S 102A inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
Subdivision B - Departure from Australia of debtors prohibited
History
Subdiv B inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102B
102B
Departure from Australia of debtors prohibited
A person must not depart from Australia for a foreign country if:
(a)
a departure prohibition order in respect of the person is in force, and the person knows that the order is in force, or is reckless as to whether the order is in force; and
(b)
the person's departure is not authorised by a departure authorisation certificate, and the person knows that the departure is not authorised by such a certificate, or is reckless as to whether the departure is authorised by such a certificate.
Penalty: Imprisonment for 12 months.
History
S 102B inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
Subdivision C - Other rules for departure prohibition orders
History
Subdiv C inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102C
Notification requirements for departure prohibition orders
102C(1)
This section applies if the Secretary makes a departure prohibition order in respect of a person.
Notifying person of order
102C(2)
The Secretary must notify the person that the order has been made.
102C(3)
The notice must be in a form approved by the Secretary and must be given as soon as practicable after making the order.
Notifying other persons of order
102C(4)
Unless the Secretary is satisfied that the person is an Australian citizen, the Secretary must give the Secretary of the Department administered by the Minister administering the Migration Act 1958 a copy of the order, and information likely to facilitate identification of the person, for the purposes of administering that Act.
102C(5)
The Secretary must also give a copy of the order, and information likely to facilitate identification of the person for the purposes of this Division, to such other persons as the Secretary considers appropriate in the circumstances, being persons declared in an instrument under subsection (6).
102C(6)
The Secretary may, by legislative instrument, declare persons for the purposes of subsection (5).
102C(7)
The Secretary must give a copy of the order or information under subsection (4) or (5) as soon as practicable after making the order. Authorised Version
History
S 102C inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102D
Operation of departure prohibition order
102D(1)
A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court.
Note:
Subdivision E deals with appeals to the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) against the making of departure prohibition orders.
History
S 102D(1) amended by No 13 of 2021, s 3 and Sch 2 item 64, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia" in the note, effective 1 September 2021.
102D(2)
However, a departure prohibition order in respect of a person is not in force during any period when a deportation order in respect of the person is in force under the Migration Act 1958.
History
S 102D inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102E
Revocation and variation of departure prohibition orders
102E(1)
The Secretary must revoke a departure prohibition order in respect of a person if:
(a)
the person no longer has any debts to the Commonwealth under this Part; or
(b)
there are arrangements satisfactory to the Secretary for the one or more debts the person has to the Commonwealth under this Part to be wholly paid; or
(c)
the Secretary is satisfied that the one or more debts the person has to the Commonwealth under this Part are completely irrecoverable.
102E(2)
The Secretary may revoke or vary a departure prohibition order in respect of a person if the Secretary considers it desirable to do so.
102E(3)
A revocation or variation, under this section, of a departure prohibition order may be:
(a)
on application by the person in a form approved by the Secretary; or
(b)
on the Secretary's own initiative.
History
S 102E inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102F
Notificationrequirements for revocations and variations
102F(1)
If the Secretary revokes or varies a departure prohibition order in respect of a person, the Secretary must give notice of the revocation or variation to:
(a)
the person; and
(b)
each person to whom a copy of the departure prohibition order was given under subsection 102C(4) or (5).
102F(2)
If:
(a)
a person makes an application under paragraph 102E(3)(a) for the revocation or variation of a departure prohibition order; and
(b)
the Secretary refuses to revoke or vary the order;
the Secretary must give notice of the refusal to the person.
102F(3)
A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.
History
S 102F inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
Subdivision D - Departure authorisation certificates
History
Subdiv D inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102G
Application for departure authorisation certificate
102G(1)
A person in respect of whom a departure prohibition order is in force may apply for a certificate (a
departure authorisation certificate
) authorising the person to depart from Australia for a foreign country.
102G(2)
The application must be in a form approved by the Secretary.
History
S 102G inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102H
When Secretary must issue departure authorisation certificate
102H(1)
This section applies if a person makes an application under section 102G for a departure authorisation certificate.
102H(2)
The Secretary must issue the departure authorisation certificate if the Secretary is satisfied:
(a)
that, if the certificate is issued:
(i)
it is likely that the person will depart from Australia and return to Australia within a period that the Secretary considers appropriate; and
(ii)
it is likely that, within a period that the Secretary considers appropriate, the Secretary will be required by subsection 102E(1) to revoke the departure prohibition order in respect of the person; and
(b)
that it is not necessary for the person to give security under section 102J for the person's return to Australia.
102H(3)
If the Secretary is not satisfied as mentioned in subsection (2), the Secretary must issue the departure authorisation certificate if:
(a)
the person has given security under section 102J for the person's return to Australia; or
(b)
if the person is unable to give such security, the Secretary is satisfied:
(i)
that the certificate should be issued on humanitarian grounds; or
(ii)
that refusing to issue the certificate will be detrimental to Australia's interests.
History
S 102H inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102J
Security for person's return to Australia
102J(1)
A person may give such security as the Secretary considers appropriate by bond, deposit or any other means, for the person's return to Australia by such day as is agreed by the person and the Secretary and is specified in the departure authorisation certificate.
102J(2)
The Secretary may substitute a later day for the day mentioned in subsection (1):
(a)
on application by the person in a form approved by the Secretary; or
(b)
on the Secretary's own initiative.
102J(3)
The Secretary may refuse an application by a person to substitute a later day if:
(a)
the person refuses to increase the value of the security already given to a level that the Secretary considers appropriate; or
(b)
the person refuses to give such further security as the Secretary considers appropriate; or
(c)
the Secretary considers that it would not be appropriate to substitute the later day.
History
S 102J inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102K
What departure authorisation certificate must authorise
102K(1)
A departure authorisation certificate in respect of a person must authorise the departure of the person on or before the seventh day after a day specified in the certificate.
102K(2)
The day specified in the certificate must be a day that is after the day on which the certificate is issued, but not more than 7 days after that day.
History
S 102K inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102L
Notification requirements for departure authorisation certificates
102L(1)
If the Secretary issues a departure authorisation certificate in respect of a person, the Secretary must, as soon as practicable, give a copy of the certificate to:
(a)
the person; and
(b)
each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 102C(4) or (5).
102L(2)
If:
(a)
a person makes an application under section 102G for a departure authorisation certificate; and
(b)
the Secretary refuses to issue the certificate;
the Secretary must give notice of the refusal to the person.
102L(3)
The notice must be in a form approved by the Secretary and must be given as soon as practicable after the refusal.
History
S 102L inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102M
Notification requirements for substituted days
102M(1)
If, under section 102J, the Secretary substitutes a later day for a person's return to Australia, the Secretary must give notice of that decision to:
(a)
the person; and
(b)
each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 102C(4) or (5).
102M(2)
If:
(a)
a person makes an application under paragraph 102J(2)(a) to substitute a later day for the person's return to Australia; and
(b)
the Secretary refuses the application;
the Secretary must give notice of the refusal to the person.
102M(3)
A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.
History
S 102M inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
Subdivision E - Appeals and review in relation to departure prohibition orders and departure authorisation certificates
History
Subdiv E inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102N
Appeals to courts against making of departure prohibition orders
102N(1)
A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) against the making of the order.
History
S 102N(1) amended by No 13 of 2021, s 3 and Sch 2 item 65, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
102N(2)
This section has effect subject to Chapter III of the Constitution.
History
S 102N inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102P
102P
Jurisdiction of courts
The jurisdiction of a court under section 102N must be exercised by a single Judge.
History
S 102P inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102Q
102Q
Orders of court on appeal
A court hearing an appeal under section 102N against the making of a departure prohibition order may, in its discretion:
(a)
make an order setting aside the order; or
(b)
dismiss the appeal.
History
S 102Q inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102R
Review of decisions
102R(1)
Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary under section 102E, 102H or 102J.
[
CCH Note:
S 102R(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "Administrative Appeals Tribunal", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
102R(2)
Despite any provision of Part 5, that Part does not apply in relation to any decision of the Secretary under this Division.
History
S 102R inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
Subdivision F - Enforcement
History
Subdiv F inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102S
Powers of officers of Customs and members of the Australian Federal Police
102S(1)
This section applies if an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, believes on reasonable grounds that:
(a)
a person is about to depart from Australia for a foreign country; and
(b)
a departure prohibition order in respect of the person is in force; and
(c)
the person's departure is not authorised by a departure authorisation certificate.
102S(2)
The officer or member may:
(a)
take such steps as are reasonably necessary to prevent the person's departure, including, but not limited to, steps to prevent the person going on board, or to remove the person from, a vessel or aircraft in which the officer or member believes on reasonable grounds the departure will take place; and
(b)
require the person to answer questions or produce documents to the officer or member for the purposes of working out whether:
(i)
a departure prohibition order in respect of the person is in force; and
(ii)
if such an order in respect of the person is in force - whether the person's departure is authorised by a departure authorisation certificate.
102S(3)
A person commits an offence if:
(a)
the person is subject to a requirement under paragraph (2)(b); and
(b)
the person refuses or fails to comply with the requirement.
Penalty: 30 penalty units.
102S(4)
Subsection (3) does not apply if the person answers the question or produces the document to the extent that the person is capable of answering the question or producing the document.
Note:
A defendant bears an evidential burden in relation to the matters mentioned in subsection (4): see subsection 13.3(3) of the Criminal Code.
History
S 102S inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102T
Privilege against self-incrimination
102T(1)
An individual is not excused from answering a question, or producing a document, under paragraph 102S(2)(b) on the ground that the answer to the question or the production of the document might tend to incriminate the individual or expose the individual to a penalty.
102T(2)
However:
(a)
the answer given or document produced; and
(b)
answering the question or producing the document; and
(c)
any information, document or thing obtained as a direct or indirect consequence of the answering of the question or producing the document;
are not admissible in evidence against the individual in any criminal proceedings, other than proceedings under section 137.1 or 137.2 of the Criminal Code in relation to answering the question or producing the document.
History
S 102T inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102U
Production of authority to depart
102U(1)
If:
(a)
a departure prohibition order in respect of a person is in force; and
(b)
the person is about to depart from Australia for a foreign country; and
(c)
the person's departure is authorised by a departure authorisation certificate;
an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, may request the person to give a copy of the certificate to the officer or member for inspection.
102U(2)
A person commits an offence of strict liability if:
(a)
an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, has made a request of the person under subsection (1); and
(b)
the person refuses or fails to comply with the request.
Penalty for contravention of this subsection: 5 penalty units.
History
S 102U inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
Subdivision G - Interpretation
History
Subdiv G inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102V
102V
Interpretation - departure from Australia for foreign country
A reference in this Division to the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia.
History
S 102V inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 102W
102W
Meaning of
Australia
For the purposes of this Division,
Australia
, when used in a geographical sense, includes the external Territories.
History
S 102W inserted by No 55 of 2016, s 3 and Sch 13 item 3, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
SECTION 103
103
Determination that penalty interest not payable in relation to particular periods
(Repealed by No 5 of 2011)
History
S 103 repealed by No 5 of 2011, s 3 and Sch 1 item 8, effective 22 March 2011. S 103 formerly read:
SECTION 103 Determination that penalty interest not payable in relation to particular periods
103(1)
This section deals with the making of determinations under subsections 77(3) and 78(3) (determinations that interest is not payable in certain circumstances).
103(2)
The determination may relate to a period before the making of the determination.
103(3)
The determination may be expressed to be subject to the person complying with specified conditions.
103(4)
The Secretary must give a copy of the determination to the person as soon as practicable after making the determination.
103(5)
A failure to comply with subsection (4) does not invalidate the determination.
103(6)
If:
(a)
the determination is expressed to be subject to the person complying with specified conditions; and
(b)
the person contravenes a condition;
the determination ceases to have effect.
103(7)
The Secretary may cancel or vary the determination by written notice to the person.
PART 5 - REVIEW OF DECISIONS
Note:
This Part does not apply in relation to any decision of the Secretary under Division 5 of Part 4 (about departure prohibition orders).
History
Pt 5 amended by No 55 of 2016, s 3 andSch 13 item 4, by inserting the note, applicable in relation to:
(a) a debt that arises on or after 1 January 2017; and
(b) a debt that arose before 1 January 2017, to the extent that the debt was outstanding immediately before 1 January 2017.
CCH Note:
No 53 of 2008, s 3 and Sch 1 item 64 contains the following transitional provision:
Transitional - varying CCB % determinations
Secretary may vary CCB % determinations between commencement and 6 July 2008
(1)
If:
(a)
at the commencement of this item, a determination of CCB % under section 50J of the Family Assistance Administration Act is in force in respect of a claimant who is an individual; and
(b)
the Secretary considers that, if the Secretary were making the determination of CCB % on 7 July 2008, the CCB % determined on 7 July (the
new CCB %
) would be different from the CCB % at commencement (the
current CCB %
);the Secretary may, in writing, vary the determination of CCB % so that the claimant's CCB % is the new CCB %.
(2)
A variation under subitem (1) has effect for the purposes of the Family Assistance Administration Act from 7 July 2008.
(3)
A variation under subitem (1) cannot be made after 6 July 2008.
Decisions to vary are reviewable
(4)
For the purposes of Part 5 of the Family Assistance Administration Act, a decision of the Secretary to vary a determination under subitem (1) is taken to be a decision of an officer under the family assistance law.
Division 1A - Preliminary matters in relation to child care decisions
History
Div 1A inserted by No 22 of 2017, s 3 and Sch 1 item 114, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 103
103
Child care decision
A
child care decision
is:
(a)
a determination made by the Secretary under Division 3 of Part 3A; or
(b)
a decision made on review under Part 5 or the AAT Act of:
(i)
a determination mentioned in paragraph (a); or
(ii)
a decision that is a child care decision under a previous application of this paragraph.
[
CCH Note:
S 103 will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART Act" for "AAT Act" in para (b), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 103 inserted by No 22 of 2017, s 3 and Sch 1 item 114, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 103A
CCS reconciliation conditions
103A(1)
An individual (the
claimant
) meets the
CCS reconciliation conditions
for an income year (the
relevant income year
) if subsection (2), (3) or (4) applies in relation to each of the following persons:
(a)
the claimant;
(b)
each person who was a TFN determination person for the purposes of a determination under Division 3 of Part 3A for the claimant in relation to sessions of care provided in CCS fortnights starting in the relevant income year.
History
S 103A(1) amended by No 26 of 2021, s 3 and Sch 1 item 48, by omitting ", by the second deadline for the relevant income year," before "subsection (2), (3) or (4)", effective 27 March 2021 and applicable in relation to the 2018-19 income year and each later income year. For application provisions, see note under s 205C.
Income tax assessment made
103A(2)
This subsection applies to a person if the Commissioner of Taxation has made an assessment of the taxable income of the person for the relevant income year.
No requirement to lodge income tax return
103A(3)
This subsection applies to a person if:
(a)
the relevant income year has ended; and
(b)
the person is not required to lodge an income tax return in respect of the income year; and
(c)
either:
(i)
the claimant has notified the Secretary of the amount of the claimant's adjusted taxable income for the relevant income year; or
(ii)
the Secretary is satisfied that the claimant's adjusted taxable income for the relevant income year can be worked out without such notification.
Former partner has not lodged income tax return
103A(4)
This subsection applies to a person who was, but is no longer, a partner of the claimant if:
(a)
the person was a TFN determination person for the purposes of a determination under Division 3 of Part 3A for the claimant in relation to sessions of care (the
relevant sessions of care
) provided in CCS fortnights starting in the relevant income year; and
(b)
the relevant income year has ended; and
(c)
the person is required to lodge an income tax return in respect of the relevant income year, but has not done so by the first deadline for the relevant income year; and
(d)
the Secretary is satisfied that it is reasonable in all the circumstances to estimate the claimant's adjusted taxable income for the relevant income year; and
(e)
the Secretary is otherwise satisfied that it is appropriate for this subsection to apply in all the circumstances.
Note:
For subparagraph (3)(c)(ii) and paragraph (4)(d), the claimant's adjusted taxable income for the relevant year is worked out taking into account the adjusted taxable income of any TFN determination person who has been the claimant's partner during the relevant income year (see clauses 3AA and 3A of Schedule 3 to the Family Assistance Act).
History
S 103A inserted by No 22 of 2017, s 3 and Sch 1 item 114, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 103B
First deadline
103B(1)
The
first deadline
for an income year (the
relevant income year
) is:
(a)
the end of the first income year after the relevant income year; or
(b)
if the Secretary allows the individual a longer period under subsection (2) - the end of the longer period.
103B(2)
The Secretary may allow an individual a longer period if the Secretary is satisfied that special circumstances prevented the individual meeting the CCS reconciliation conditions for the relevant income year before the end of the first income year after the relevant income year.
103B(3)
The end of the longer period must not be later than the end of the second income year after the relevant income year.
First deadline
for 2018-19 income year
103B(4)
Despite paragraph (1)(a), the
first deadline
for the 2018-19 income year is 31 March 2021.
History
S 103B(4) inserted by No 26 of 2021, s 3 and Sch 1 item 32, effective 27 March 2021. For application provisions, see note under s 205C.
103B(5)
Subsection (4) does not prevent the Secretary from allowing an individual a longer period in accordance with this section.
History
S 103B(5) inserted by No 26 of 2021, s 3 and Sch 1 item 32, effective 27 March 2021. For application provisions, see note under s 205C.
History
S 103B inserted by No 22 of 2017, s 3 and Sch 1 item 114, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 103C
Second deadline
103C(1)
The
second deadline
for an income year (the
relevant income year
) is:
(a)
the end of the second income year after the relevant income year; or
(b)
if the Secretary allows the individual a longer period under subsection (2) - the end of the longer period.
103C(2)
The Secretary may allow an individual a longer period if the Secretary is satisfied that special circumstances prevented the individual meeting the CCS reconciliation conditions for the relevant income year before the end of the second income year after the relevant income year.
History
S 103C inserted by No 22 of 2017, s 3 and Sch 1 item 114, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 1 - Internal review
History
Div 1 substituted by No 45 of 2000, s 3 Sch 2 item 103(2), effective 1 July 2000. For transitional provisions see note under s 69. Div 1 formerly read:
104 Review initiated by Secretary
(1)
The Secretary may, if satisfied that there is sufficient reason to do so, review a decision of any officer under the family assistance law.
(2)
The Secretary may review the decision even if an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision.
(3)
The Secretary must not review the decision under this section while any review of the decision is taking place under section 105.
(4)
The Secretary may:
(a)
affirm the decision; or
(b)
vary the decision; or
(c)
set the decision aside and substitute a new decision.
(5)
If the Secretary makes a decision to do one of the things in paragraph (4)(b) or (c), the Secretary must give notice of the decision to the person whose entitlement, or possible entitlement, to family assistance is affected by the decision. The notice must state the effect of the decision and that the person may apply for review of the decision involved in the manner set out in this Part.
(6)
A contravention of subsection (5) in relation to a decision does not affect the validity ofthe decision.
(7)
If:
(a)
the Secretary makes a decision to do one of the things in paragraph (4)(b) or (c); and
(b)
by the time the Secretary makes that decision, a person has applied to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision that was reviewed by the Secretary;
the Secretary must give written notice of the Secretary's decision under that paragraph to the Executive Director or the Registrar of the Administrative Appeals Tribunal, as the case requires.
(8)
If:
(a)
the Secretary sets a decision aside under subsection (4); and
(b)
the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
105 Review initiated by applicant
(1)
A person affected by a decision of an officer under the family assistance law (other than a decision made by the Secretary personally) may apply to the Secretary for review of the decision.
(2)
If the person does so, the Secretary must either:
(a)
review the decision and:
(i)
affirm the decision; or
(ii)
vary the decision; or
(iii)
set the decision aside and substitute a new decision; or
(b)
arrange for an authorised review officer (see section 106) to do so.
(3)
Whoever reviews the decision in accordance with subsection (2) (the
decision reviewer
) must, after conducting the review, give the applicant written notice of his or her decision to affirm or vary the decision reviewed, or to set it aside and substitute a new decision.
(4)
If:
(a)
the decision reviewer sets the decision aside after reviewing the decision under subsection (2); and
(b)
the decision reviewer is satisfied that an event that did not occur would have occurred if the decision had not been made;
the decision reviewer may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
(5)
If:
(a)
a person who may apply to the Secretary for a review of a decision under subsection (1) has not done so; and
(b)
the person applies to the Social Security Appeals Tribunal for review of the decision (despite not being entitled to do so);
the person is taken to have applied to the Secretary for review of the decision under subsection (1) on the day on which the person applied to the Social Security Appeals Tribunal.
106 Authorised review officers
(1)
The Secretary must authorise officers to be authorised review officers for the purposes of this Division.
(2)
The Secretary must not authorise an officer of an agency other than the Department unless the head of the agency has agreed to the authorisation.
107 Review applications - withdrawal
(1)
(Repealed by No 192 of 1999.)
History
S 107(1) repealed by No 192 of 1999, s 3 and Sch 4 item 1, effective 1 July 2000. S 107(1) formerly read:
(1)
Application to be made within 52 weeks of notification of decision
Subject to subsections (2) and (3), an application for review under section 105 must be made no later than 52 weeks after the applicant is notified of the decision concerned.
(2)
(Repealed by No 192 of 1999.)
History
S 107(2) repealed by No 192 of 1999, s 3 and Sch 4 item 1, effective 1 July 2000. S 107(2) formerly read:
(2)
Exception - Secretary determines special circumstances exist
The Secretary may determine special circumstances in which an application may be made after the 52 weeks mentioned in subsection (1). The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(3)
(Repealed by No 192 of 1999.)
History
S 107(3) repealed by No 192 of 1999, s 3 and Sch 4 item 1, effective 1 July 2000. S 107(3) formerly read:
(3)
Exception - making of regulations
The regulations may prescribe circumstances in which an application may be made after the 52 weeks mentioned in subsection (1).
Withdrawal of application
(4)
An applicant for review under section 105 may, in writing or in any other manner approved by the Secretary, withdraw the application at any time before the decision reviewer does any of the things in subsection 105(2).
(5)
If an application is so withdrawn, it is taken never to have been made.
108 Secretary may continue payment pending outcome of application for review
(1)
If:
(a)
an adverse family assistance decision (see subsection (4)) is made; and
(b)
the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and
(c)
a person applies to the Secretary under section 105 for review of the adverse decision;
the Secretary may declare that entitlement to the family assistance is to continue, pending the determination of the review, as if the adverse decision had not been made.
(2)
While the declaration is in force in relation to the adverse decision, this Act (other than this Part) applies as if the adverse decision had not been made.
(3)
The declaration:
(a)
starts to have effect on the day on which it is made or on the earlier day (if any) specified in the declaration; and
(b)
stops having effect if:
(i)
the application for review of the adverse decision is withdrawn; or
(ii)
the review of the adverse decision is determined by the Secretary or an authorised review officer; or
(iii)
the declaration is revoked by the Secretary.
(4)
In this section:
adverse family assistance decision
means any decision having the effect that an entitlement to family assistance under a determination is reduced or ceases.
109 Notification of further rights of review
(1)
If the decision reviewer gives an applicant a notice under subsection 105(3), the notice must include:
(a)
a statement to the effect that the applicant may, subject to this Part, apply to the Social Security Appeals Tribunal for review of the decision reviewer's decision mentioned in the notice; and
(b)
a statement about the decision reviewer's decision that:
(i)
sets out the reasons for the decision; and
(ii)
sets out the findings by the decision reviewer on material questions of fact; and
(iii)
refers to the evidence or other material on which those findings were based; and
(c)
a statement to the effect that, if the applicant is dissatisfied with the Social Security Appeals Tribunal's decision on any application for review as mentioned in paragraph (a), the applicant may, subject to the Administrative Appeals Tribunal Act 1975, apply to the Administrative Appeals Tribunal for review of the Social Security Appeals Tribunal's decision.
(2)
A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
Subdivision A - Review initiated by the Secretary
History
Subdiv A inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 104
104
Decisions that may be reviewed by Secretary on own initiative
Under section 105, the Secretary may review any decision of an officer under the family assistance law except:
(a)
a decision under section 67EB to pay an amount; or
(b)
a decision to give a person a notice under section 199E (notice about effect of non-compliance by provider on eligibility for CCS or ACCS); or
(c)
a decision under section 205A (business continuity payments - reports not given); or
(d)
a decision under section 85GA of the Family Assistance Act (funding agreements) in relation to an agreement.
History
S 104 amended by No 26 of 2021, s 3 and Sch 1 item 9, by inserting "- reports not given" in para (c), effective 27 March 2021. For application provisions, see note under s 205C.
S 104 substituted by No 22 of 2017, s 3 and Sch 1 item 115, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 104 formerly read:
SECTION 104
SECTION 104 Decisions that may be reviewed by the Secretary on own initiative
104
Under section 105, the Secretary may review a decision of any officer under the family assistance law except:
(a)
a determination of entitlement under section 51B in respect of an individual in so far as it relates to:
(i)
a rate certified by an approved child care service under subsection 76(1) of the Family Assistance Act; or
(ii)
a certificate relating to a weekly limit of hours given by an approved child care service under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act; or
(b)
a determination of entitlement under section 54B in respect of an approved child care service in so far as it relates to:
(i)
the service's eligibility under section 47 of the Family Assistance Act; or
(ii)
a rate certified by the service under subsection 76(2) of the Family Assistance Act; or
(iii)
a certificate relating to a weekly limit of hours given by the service under subsection 54(10), 55(6) or 56(4) of the Family Assistance Act; or
(ba)
a decision to give a person a notice under section 204A; or
(c)
a calculation of an amount of fee reduction under section 50Z or 50ZB, or a recalculation of such an amount under section 50ZA or 50ZC; or
(d)
a decision by the Secretary under section 219Q or subsection 219QA(2) to pay an amount in respect of fee reduction; or
(da)
a decision by the Secretary under section 219QC or subsection 219QD(2) to pay an amount in respect of child care rebate; or
(db)
a decision under section 219RD (business continuity payments); or
(dc)
a calculation of an amount of child care rebate for a week under section 65EAAA, or a recalculation of such an amount under section 65EAAD; or
(dd)
a decision by the Secretary under subsection 65EAAAA(4) (allowing election after beginning of income year to be paid child care rebate weekly or quarterly) or under subsection 65EAAAB(3) (day on which new payment arrangement begins); or
(de)
a calculation of an amount of child care rebate for a quarter under section 65EAA, or a recalculation of such an amount under section 65EAB; or
(e)
a decision under Division 2 of Part 8C (infringement notices).
History
S 104 amended by No 25 of 2011, s 3 and Sch 1 item 39, by substituting paras (d) to (de) for paras (d) to (da), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). Paras (d) to (da) formerly read:
(d)
a decision by the Secretary under section 219Q or subsection 219QA(2) to pay an amount in respect of fee reduction; or
(daa)
a decision under section 219RD (business continuity payments); or
(da)
a calculation of an amount of child care rebate for a quarter under section 65EAA, or a recalculation of such an amount under section 65EAB; or
S 104 amended by No 34 of 2010, s 3 and Sch 1 item 9, by inserting para (daa), effective 13 April 2010.
S 104 amended by No 50 of 2009, s 3 and Sch 1 item 31, by substituting "child care rebate" for "child care tax rebate" in para (da), effective 24 June 2009.
S 104(1) amended by No 146 of 2006, s 3 and Sch 5 items 78, by substituting "Under" for "(1) Under" and deleting the heading in s 104(1), effective 1 July 2008.
S 104(1) amended by No 53 of 2008, s 3 and Sch 2 item 19, by inserting para (da), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 104(1) amended by No 118 of 2007, s 3 and Sch 3 item 4, by inserting para (ba), effective 29 June 2007.
S 104(1) amended by No 118 of 2007, s 3 and Sch 2 item 2, by inserting para (e) at the end, effective 1 July 2007.
S 104(1) amended by No 118 of 2007, s 3 and Sch 1 item 53, by substituting paras (c) and (d) for para (c), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (c) formerly read:
(c)
a decision by the Secretary under Division 2 of Part 8A (advances to approved child care services).
104(2)
(Repealed by No 146 of 2006)
History
S 104(2) repealed by No 146 of 2006, s 3 and Sch 5 item 79, effective 1 July 2008. S 104(2) formerly read:
104(2)
Under section 105, the Secretary may also review a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 that is made on or after 1 July 2000.
S 104 substituted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69. For former wording of s 104 see history note under Div 1 heading.
SECTION 105
Secretary may review certain decisions on own initiative
105(1)
If:
(a)
a decision (the
original decision
) is a decision that, under section 104, the Secretary may review under this section; and
(b)
the Secretary is satisfied that there is sufficient reason to review the decision;
the Secretary may review the decision.
Secretary may review decision even if application has been made to the AAT
105(2)
The Secretary may review the original decision even if an application has been made to the AAT for review in relation to the decision.
[
CCH Note:
S 105(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" in the heading and "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 105(2) substituted by No 60 of 2015, s 3 and Sch 5 item 6, effective 1 July 2015. S 105(2) formerly read:
Secretary may review decision even if application has been made to the SSAT or the AAT
105(2)
The Secretary may review the original decision even if an application has been made to the SSAT or the AAT for review of the decision.
Secretary must not review decision if review under section 109A occurring
105(3)
The Secretary must not review the original decision under this section while any review of the decision is taking place under section 109A.
Secretary may make decisions in respect of an original decision
105(4)
The Secretary may decide (the
review decision
) to:
(a)
affirm the original decision; or
(b)
vary the original decision; or
(c)
set the original decision aside and substitute a new decision.
105(4A)
If:
(a)
the review involves (wholly or partly) a review of an original decision that is a care percentage decision; and
(b)
a consideration of an objection to a decision carried out under Part VII of the Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) the consideration of the determination to which the care percentage decision relates;
the Secretary must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.
History
S 105(4A) inserted by No 65 of 2010, s 3 and Sch 2 item 23, effective 1 July 2010.
Secretary may deem certain events to have occurred
105(5)
If:
(a)
the Secretary makes a review decision to set the original decision aside under subsection (4); and
(b)
the Secretary is satisfied that an event that did not occur would have occurred if the original decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
History
S 105 substituted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69. For former wording of s 105 see history note under Div 1 heading.
SECTION 105A
Review of determination or variation - taking account of FTB Part A supplement or FTB Part B supplement
105A(1)
This section applies to a decision of the Secretary to make or vary a section 16 or 17 determination if, as a result of the decision, an individual (the
first individual
) is entitled to be paid family tax benefit at a particular rate in respect of a period (the
same-rate benefit period
) that consists of, or is included in, a particular income year (the
relevant income year
).
105A(2)
If:
(a)
in making or varying the determination, the Secretary disregarded one or more of the following provisions:
(i)
paragraph (ca) of step 1 of the method statement in clause 3 of Schedule 1 to the Family Assistance Act;
(ii)
paragraph (d) of step 1 of the method statement in clause 25 of Schedule 1 to the Family Assistance Act;
(iia)
paragraph 29(1)(b) of Schedule 1 to the Family Assistance Act;
(iib)
paragraph (b) of step 1 of the method statement in subclause 29A(2)(b) of Schedule 1 to the Family Assistance Act;
(iiba)
paragraph 29A(2)(b) of Schedule 1 to the Family Assistance Act;
(iic)
subclause 31A(1) of Schedule 1 to the Family Assistance Act;
(iii)
subclause 38A(1) of Schedule 1 to the Family Assistance Act; and
(b)
if section 32A had not been enacted, the Secretary would have been required to take account of one or more of the provisions mentioned in paragraph (a); and
(c)
either:
(i)
if the same-rate benefit period to which the decision relates is the only same-rate benefit period for the first individual for the relevant income year - the first individual satisfies the FTB reconciliation conditions for the same-rate benefit period; or
(ii)
if the same-rate benefit period to which the decision relates is one of 2 or more same-rate benefit periods for the first individual for the relevant income year - the first individual satisfies the FTB reconciliation conditions for each of those same-rate benefit periods;
then:
(d)
for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the determination or variation; and
(e)
the Secretary must exercise the power conferred by subsection 105(1) to review the determination or variation; and
(f)
the review must take account of whichever of the provisions mentioned in paragraph (a) are relevant.
Note:
To work out when the first individual has satisfied the FTB reconciliation conditions, see section 32B.
History
S 105A(2) amended by No 61 of 2005, s 3 and Sch 1 item 11, by inserting para (a)(iiba), applicable in respect of the 2005-2006 income year and later income years.
S 105A(2) amended by No 29 of 2005, s 3 and Sch 1 item 9, by inserting para (a)(iia), (iib) and (iic), applicable in relation to FTB Part B supplement included, on or after 1 January 2005, in family tax benefit for the 2004-2005 income year or a later income year.
105A(3)
Paragraph (2)(f) does not limit the scope of the review.
History
S 105A inserted by No 59 of 2004, s 3 and Sch 1 item 10, applicable in relation to family tax benefit for the 2003-2004 income year or a later income year.
SECTION 105B
Review of instalment determination - taking account of energy supplements
105B(1)
This section applies if:
(a)
a determination under section 16 is in force in a quarter under which an individual is entitled to be paid family tax benefit by instalment; and
(b)
disregarding subsections (2) and (2A) of this section, an election made by the individual under subsection 58A(1) of the Family Assistance Act is in force on one or more days in that quarter.
History
S 105B(1) amended by No 70 of 2013, s 3 and Sch 3 item 66, by substituting "subsections (2) and (2A)" for "subsection (2)" in para (b), effective 1 July 2013.
105B(2)
The consequences in subsection (2A) apply:
(a)
once one of the following applies in that quarter:
(i)
the individual ceases to be entitled to be paid family tax benefit under the determination;
(ii)
a revocation of the election takes effect;
(iii)
the election ceases to be in force under subsection 58A(3A) of the Family Assistance Act; or
(b)
otherwise - after the end of that quarter.
History
S 105B(2) substituted by No 70 of 2013, s 3 and Sch 3 item 67, effective 1 July 2013. S 105B(2) formerly read:
105B(2)
After the end of that quarter:
(a)
for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the determination; and
(b)
the Secretary must exercise the power conferred by subsection 105(1) to review the determination; and
(c)
the review must be done by assuming that:
(i)
Division 2B of Part 4 of Schedule 1 to the Family Assistance Act and Division 2AA of Part 5 of that Schedule applied in relation to those days; and
(ii)
the election was not in force on those days.
Note:
Those Divisions deal with clean energy supplement (Part A) and clean energy supplement (Part B).
105B(2A)
The consequences are:
(a)
for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the determination; and
(b)
the Secretary must exercise the power conferred by subsection 105(1) to review the determination; and
(c)
the review must be done by assuming that:
(i)
Division 2B of Part 4 of Schedule 1 to the Family Assistance Act and Division 2AA of Part 5 of that Schedule applied in relation to those days; and
(ii)
the election was not in force on those days.
Note:
Those Divisions deal with energy supplement (Part A) and energy supplement (Part B).
History
S 105B(2A) amended by No 122 of 2014, s 3 and Sch 1 item 191, by substituting "energy supplement" for "clean energy supplement" (wherever occurring) in the note, effective 20 September 2014.
S 105B(2A) inserted by No 70 of 2013, s 3 and Sch 3 item 67, effective 1 July 2013.
Definition
105B(3)
In this section:
quarter
means a period of 3 months beginning on 1 July, 1 October, 1 January or 1 April.
History
S 105B(3) amended by No 122 of 2014, s 3 and Sch 1 item 192, by repealing the note, effective 20 September 2014. The note formerly read:
Note:
This section applies in relation to the quarter beginning on 1 July 2013 and all later quarters: see item 34 of Schedule 2 to the Clean Energy (Household Assistance Amendments) Act 2011.
History
S 105B inserted by No 141 of 2011, s 3 and Sch 2 item 33, applicable in relation to the quarter beginning on 1 July 2013 and all later quarters.
SECTION 105C
Review of entitlement to be paid CCS or ACCS - taking account of changes of circumstances etc.
Favourable changes affecting individuals
105C(1)
A decision on review under section 105 of a child care decision in relation to section 67CD as to an individual's entitlement to be paid CCS or ACCS for a week must not take into account information if:
(a)
apart from this section, the information would have the effect that the amount of CCS or ACCS the individual is entitled to be paid for the week is increased (including from nil); and
(b)
one of the following applies:
(i)
the individual was required to notify the Secretary of the information by subsection 67FB(1);
(ia)
the information is that a child for whom the individual is eligible for CCS or ACCS is an Aboriginal or Torres Strait Islander child, and the information was notified to the Secretary in a manner approved by the Secretary;
(ii)
the Secretary required the individual to give the information or produce a document containing the information under Part 6 and the individual did not give the information or produce the document within the required period; and
(c)
the CCS fortnight that includes the week started more than 28 days before the earlier of the following events:
(i)
the individual notified or gave the information or produced the document;
(ii)
the Secretary otherwise became aware of the information.
History
S 105C(1) amended by No 66 of 2022, s 3 and Sch 3 items 5-7, by substituting "one of the following applies" for "either" in para (b), omitting "or" after "subsection 67FB(1);" from para (b)(i) and inserting para (b)(ia), effective 1 July 2023 and applicable in relation to sessions of care provided to a child in a CCS fortnight that starts in the income year in which this item commences or in a later income year. For transitional provision, see note under s 67FB(4).
105C(2)
Despite subsection (1), the Secretary may take the information into account if the Secretary is satisfied that the individual notified or gave the information, or produced the document, as soon as practicable.
105C(3)
Subsection (1) does not apply if the information is the adjusted taxable income of the individual.
Favourable changes affecting providers
105C(4)
A decision on review under section 105 of a child care decision in relation to section 67CH as to a provider's entitlement to be paid ACCS (child wellbeing) for a week must not take into account information if:
(a)
apart from this section, the information would have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for the week is increased (including from nil); and
(b)
either:
(i)
the provider was required to notify the Secretary of the information by section 204F; or
(ii)
the Secretary required the provider to give the information or produce a document containing the information under Part 6 and the provider did not give the information or produce the document within the required period; and
(c)
the CCS fortnight that includes the week started more than 28 days before the earlier of the following events:
(i)
the provider notified or gave the information or produced the document;
(ii)
the Secretary otherwise became aware of the information.
105C(5)
Despite subsection (4), the Secretary may take the information into account if the Secretary is satisfied that the provider notified or gave the information, or produced the document, as soon as practicable.
History
S 105C inserted by No 22 of 2017, s 3 and Sch 1 item 116, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 105D
Review of entitlement to be paid CCS or ACCS - time limit on increase
105D(1)
A decision on review under section 105 of a child care decision in relation to section 67CD as to an individual's entitlement to be paid CCS or ACCS must not have the effect that the amount of CCS or ACCS the individual is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the decision on review is made.
105D(2)
Subsection (1) does not apply if:
(a)
the decision on review is a child care decision made because of or in relation to section 105E, to the extent that the review relates to:
(i)
the individual's adjusted taxable income for the income year in which the CCS fortnight starts; or
(ii)
the individual's activity test result for the CCS fortnight; or
(b)
the review is conducted:
(i)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight starts; and
(ii)
within 13 weeks after the individual or other person was notified by the Commissioner of the outcome of the review.
[
CCH Note:
S 105D(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 8, by substituting "90 days" for "13 weeks" in para (b)(ii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
105D(2A)
However, if:
(a)
the decision on review is a child care decision made under subsection 105E(3); and
(b)
the individual did not meet the CCS reconciliation conditions for the income year by the second deadline for the income year;
the decision must not have the effect that the amount of CCS the individual is entitled to be paid for the income year is more than the amount (less any withholding amounts) the individual was entitled to be paid for the income year before the child care decisions for the individual for the income year were set aside under paragraph 105E(2)(c).
History
S 105D(2A) inserted by No 26 of 2021, s 3 and Sch 1 item 49, effective 27 March 2021 and applicable in relation to the 2018-19 income year and each later income year. For application provisions, see note under s 205C.
105D(3)
A decision on review under section 105 of a child care decision in relation to section 67CH as to a provider's entitlement to be paid ACCS (child wellbeing) must not have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the decision on review is made.
History
S 105D inserted by No 22 of 2017, s 3 and Sch 1 item 116, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 105E
Review of individual's entitlement to be paid CCS by fee reduction - meeting CCS reconciliation conditions
105E(1)
If an individual meets the CCS reconciliation conditions for an income year (the
relevant income year
) by the first deadline for the relevant income year:
(a)
for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the child care decisions (if any) in relation to subsection 67CD(2) or (8) for the individual in relation to sessions of care provided in each week in CCS fortnights starting in the relevant income year; and
(b)
the Secretary must exercise the power conferred by subsection 105(1) to review those child care decisions; and
(c)
the review must take into account:
(i)
information obtained about the adjusted taxable income of the individual by the meeting of the CCS reconciliation conditions; and
(ii)
subject to section 105C, any other information available about the individual's activity test result or any other matter relevant to the individual's entitlement.
105E(2)
If an individual does not meet the CCS reconciliation conditions for an income year (the
relevant income year
) by the first deadline for the relevant income year:
(a)
for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the child care decisions (if any) in relation to subsection 67CD(2) or (8) for the individual in relation to sessions of care provided in each week in CCS fortnights starting in the relevant income year; and
(b)
the Secretary must exercise the power conferred by subsection 105(1) to review those child care decisions; and
(c)
despite subsection 105(4), the Secretary must set the child care decisions aside and substitute them with determinations under subsection 67CD(8) that the individual is not entitled to be paid CCS or ACCS for the sessions of care.
105E(3)
If an individual meets the CCS reconciliation conditions for an income year (the
relevant income year
) after the first deadline for the relevant income year:
(a)
for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the child care decisions in relation to subsection 67CD(8) made for the individual in accordance with paragraph (2)(c) of this section; and
(b)
the Secretary must exercise the power conferred by subsection 105(1) to review those child care decisions; and
(c)
the review must take into account:
(i)
information obtained about the adjusted taxable income of the individual by the meeting of the CCS reconciliation conditions; and
(ii)
subject to sections 105C and 105D, any other information available about the individual's activity test result or any other matter relevant to the individual's entitlement.
History
S 105E(3) amended by No 26 of 2021, s 3 and Sch 1 item 50, by omitting "and by the second deadline for the relevant income year" after "relevant income year", effective 27 March 2021 and applicable in relation to the 2018-19 income year and each later income year. For application provisions, see note under s 205C.
Member of a couple for part of a year
105E(4)
Subsections (5) and (6) apply to the review, under this section, by the Secretary of a child care decision that relates to an individual who is a member of a couple on one or more, but not all, of the first Mondays in CCS fortnights that start in an income year.
History
S 105E(4) inserted by No 38 of 2020, s 3 and Sch 4 item 1, effective 20 April 2020. No 38 of 2020, s 3 and Sch 4 item 2 contains the following application provision:
2 Application
(1)
The amendment made by item 1 applies in relation to reviews of child care decisions in relation to sessions of care provided in CCS fortnights starting in the 2019-2020 income year, and later income years.
(2)
The amendment made by item 1 has no effect to the extent (if any) to which it would:
(a)
result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph); or
(b)
impose taxation (within the meaning of section 55 of the Constitution).
105E(5)
The Secretary must apply Part 1 of Schedule 2 to the Family Assistance Act in relation to each CCS fortnight that starts in the income year as if paragraph 3AA(2)(b) of Schedule 3 to the Family Assistance Act had not been enacted.
History
S 105E(5) inserted by No 38 of 2020, s 3 and Sch 4 item 1, effective 20 April 2020. For application provision, see note under s 105E(4).
105E(6)
If the individual is a member of a couple on the first Monday in a CCS fortnight that starts in the income year, the Secretary must apply Part 1 of Schedule 2 to the Family Assistance Act in relation to the fortnight as if the individual's adjusted taxable income for the year included the adjusted taxable income for the year for the other member of the couple.
History
S 105E(6) amended by No 86 of 2021, s 3 and Sch 1 item 19, by substituting "as if the individual's adjusted taxable income for the year included the adjusted taxable income for the year for the other member of the couple" for all the words after "the Secretary must applyPart 1 of Schedule 2 to the Family Assistance Act in relation to the fortnight", effective 10 December 2021. For saving provision, see note under s 67CE(1). All the words after "the Secretary must apply Part 1 of Schedule 2 to the Family Assistance Act in relation to the fortnight" formerly read:
as if:
(a)
the individual's adjusted taxable income for the year included the adjusted taxable income for the year for the other member of the couple; and
(b)
paragraph 1(3)(b) of Schedule 2 to the Family Assistance Act were replaced with the following paragraph:
(b)
if the individual is a member of a couple on the first Monday in one or more CCS fortnights that start in the income year - CCS the other member of the couple is entitled to be paid for sessions of care provided to the same child in those fortnights.
S 105E(6) inserted by No 38 of 2020, s 3 and Sch 4 item 1, effective 20 April 2020. For application provision, see note under s 105E(4).
105E(7)
To avoid doubt, subsections (5) and (6) have effect despite Part 1 of Schedule 2 to the Family Assistance Act.
History
S 105E(7) inserted by No 38 of 2020, s 3 and Sch 4 item 1, effective 20 April 2020. For application provision, see note under s 105E(4).
History
S 105E inserted by No 22 of 2017, s 3 and Sch 1 item 116, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 106
Notice of review decision not relating to CCS or ACCS
106(1)
(Repealed by No 22 of 2017)
History
S 106(1) repealed by No 22 of 2017, s 3 and Sch 1 item 118, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 106(1) formerly read:
Notice of review decision to be given if original decision relates to determination of conditional eligibility etc.
106(1)
If:
(a)
the Secretary makes a review decision under section 105 affecting an individual in respect of whom a determination of conditional eligibility for child care benefit by fee reduction is, or was, in force (the
applicant
); and
(b)
the review decision is to:
(i)
vary an original decision in respect of the applicant; or
(ii)
set aside an original decision in respect of the applicant and substitute a new decision; and
(c)
the review decision relates to one of the following decisions:
(i)
a determination decision in respect of conditional eligibility (a determination of conditional eligibility is made under section 50F);
(ii)
a determination decision in respect of a weekly limit of hours, unless it is a variation of the kind referred to in subsection (2) (a determination of a weekly limit of hours is made under section 50H);
(iii)
a determination decision in respect of CCB % (a determination of CCB % is made under section 50J);
(iv)
a determination decision in respect of schooling % (a determination of schooling % is made under section 50K);
(iva)
a determination decision in respect of eligibility for the special grandparent rate (a determination of this eligibility is made under subsection 50T(1));
(v)
a determination decision in respect of rate under subsection 81(2) of the Family Assistance Act;
(vi)
a determination decision in respect of no entitlement (a determination of no entitlement is made under section 50G);
the Secretary must give notice of the review decision to:
(d)
in all cases mentioned in paragraph (c) - the applicant; and
(e)
in the case mentioned in subparagraph (c)(v) - the approved child care service, or services, providing care to the child concerned.
S 106(1) amended by No 118 of 2007, s 3 and Sch 1 item 54, by substituting paras (d) and (e), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Paras (d) and (e) formerly read:
(d)
the applicant; and
(e)
the approved child care service, or services, providing care to the child concerned.
S 106(1) amended by No 132 of 2004, s 3 and Sch 4 item 25, by inserting para (c)(iva), applicable to sessions of care provided in a week that commences after 1 January 2005.
106(1A)
(Repealed by No 22 of 2017)
History
S 106(1A) repealed by No 22 of 2017, s 3 and Sch 1 item 118, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 106(1A) formerly read:
Notice of review decision to be given if original decision relates to determination of conditional eligibility etc.
106(1A)
The Secretary may make notice of a review decision mentioned in paragraph (1)(c) (other than subparagraph (1)(c)(v)) available to the approved child care service, or services, providing care to the child concerned, including by making the notice available to the service using an electronic interface.
S 106(1A) inserted by No 118 of 2007, s 3 and Sch 1 item 55, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
106(1B)
(Repealed by No 22 of 2017)
History
S 106(1B) repealed by No 22 of 2017, s 3 and Sch 1 item 118, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 106(1B) formerly read:
Notice of review decision to be given if original decision relates to determination of conditional eligibility etc.
106(1B)
The Secretary may give notice of a review decision mentioned in subparagraph (1)(c)(v) by making the notice available to the service using an electronic interface.
S 106(1B) inserted by No 118 of 2007, s 3 and Sch 1 item 55, effective 29 June 2007.
106(2)
(Repealed by No 22 of 2017)
History
S 106(2) repealed by No 22 of 2017, s 3 and Sch 1 item 118, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 106(2) formerly read:
Notice of review decision to be given where original decision relates to a weekly limit of hours or rate set because child at risk
106(2)
If:
(a)
the Secretary makes a review decision under section 105 affecting an individual in respect of whom a determination of conditional eligibility for child care benefit by fee reduction is, or was, in force (the
applicant
); and
(b)
the review decision is to:
(i)
vary an original decision in respect of the applicant; or
(ii)
set aside an original decision in respect of the applicant and substitute a new decision; and
(c)
the review decision relates to an original decision:
(i)
to vary a determination of a weekly limit of hours under section 64A because a circumstance listed in subsection 54(12) of the Family Assistance Act applies; or
(ii)
to vary a determination of a weekly limit of hours under section 64B because a circumstance listed in subsection 55(8) of the Family Assistance Act applies; or
(iii)
to determine a rate under subsection 81(3) of the Family Assistance Act;
the Secretary must give notice of the review decision to the approved child care service providing care to the child concerned.
S 106(2) amended by No 30 of 2003, s 3 and Sch 2 item 40, by substituting "section 105" for "section 50K" in para (a), effective 15 April 2003.
106(3)
If:
(a)
the Secretary makes a review decision under section 105 to:
(i)
vary an original decision; or
(ii)
set aside an original decision and substitute a new decision; and
(b)
the review decision is not a decision to which section 106A applies (certain review decisions relating to CCS or ACCS);
the Secretary must give notice of the review decision to the person whose entitlement, or possible entitlement, to family assistance, one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021 is affected by the decision.
History
S 106(3) amended by No 97 of 2020, s 3 and Sch 1 item 9, by substituting ", 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021" for "or 2020 economic support payment", effective 14 November 2020.
S 106(3) amended by No 22 of 2020, s 3 and Sch 4 item 9, by substituting ", ETR payment or 2020 economic support payment" for "or ETR payment", effective 25 March 2020.
S 106(3) amended by No 22 of 2017, s 3 and Sch 1 item 120, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
the review decision is in respect of any other original decision that, under section 104, may be reviewed (other than a review decision referred to in subsection (1) or (2));
S 106(3) amended by No 50 of 2012, s 3 and Sch 1 item 10, by substituting ", clean energy advance or ETR payment" for "or clean energy advance", effective 27 May 2012.
S 106(3) amended by No 141 of 2011, s 3 and Sch 2 item 11, by substituting ", single income family bonus or clean energy advance" for "or single income family bonus", effective 14 May 2012.
S 106(3) amended by No 4 of 2009, s 3 and Sch 3 item 11, by substituting ", economic security strategy payment to families, back to school bonus or single income family bonus" for "or economic security strategy payment to families", effective 18 February 2009.
S 106(3) amended by No 131 of 2008, s 3 and Sch 3 item 12, by substituting ", one-off payment to families or economic security strategy payment to families" for "or one-off payment to families", effective 1 December 2008.
S 106(3) substituted by No 146 of 2006, s 3 and Sch 5 item 80, effective 1 July 2008. S 106(3) formerly read:
Notice to be given of other review decisions
106(3)
If:
(a)
the Secretary makes a review decision under section 105 to:
(i)
vary an original decision; or
(ii)
set aside an original decision and substitute a new decision; and
(b)
the review decision is in respect of any other original decision that, under section 104, may be reviewed (other than a review decision referred to in subsection (1) or (2));
the Secretary must:
(c)
if the original decision is a decision under the family assistance law - give notice of the review decision to the person whose entitlement, or possible entitlement, to family assistance or one-off payment to families is affected by the decision; and
(d)
if the original decision is a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 about an agreement - give notice of the review decision to both parties to the agreement.
106(4)
A notice must state the effect of the review decision and that the applicant, or person whose entitlement or possible entitlement is affected by the decision, may apply for review of the review decision involved in the manner set out in this Part.
106(5)
A contravention of this section in relation to a review decision does not affect the validity of the review decision.
History
S 106(5) substituted by No 22 of 2017, s 3 and Sch 1 item 122, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 106(5) formerly read:
Review decision not affected by lack of notice
106(5)
A contravention of subsection (1), (2), (3) or (4) in relation to a review decision does not affect the validity of the decision.
106(6)
(Repealed by No 22 of 2017)
History
S 106(6) repealed by No 22 of 2017, s 3 and Sch 1 item 122, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 106(6) formerly read:
106(6)
If the Secretary makes a review decision under section 105 to vary or substitute a decision after a person has applied to the AAT for a review in relation to the decision, the Secretary must give written notice of the Secretary's review decision to the Registrar of the AAT.
S 106(6) substituted by No 60 of 2015, s 3 and Sch 5 item 7, effective 1 July 2015. S 106(6) formerly read:
Notice of review decisions to be given to the SSAT or the AAT if application made for review
106(6)
If:
(a)
the Secretary makes a review decision to:
(i)
vary an original decision; or
(ii)
set aside an original decision and substitute a new decision; and
(b)
by the time the Secretary makes that decision, a person has applied to the SSAT or the AAT for review of the original decision that was reviewed by the Secretary;
the Secretary must give written notice of the Secretary's review decision to the Principal Member of the SSAT or to the Registrar of the AAT, as the case requires.
S 106(6) amended by No 38 of 2010, s 3 and Sch 3 item 20, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
106(7)
(Repealed by No 22 of 2017)
History
S 106(7) repealed by No 22 of 2017, s 3 and Sch 1 item 122, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 106(7) formerly read:
Meaning of determination decision
106(7)
In this section:
determination decision
means a decision that is a determination as originally made, or, if varied, the variation of the determination.
History
S 106 substituted by No 45 of 2000. For transitional provisions see note under s 69. For former wording of s 106 see history note under Div 1 heading.
SECTION 106A
Notice of certain review decisions relating to CCS or ACCS
106A(1)
If the Secretary makes a review decision under section 105 to vary or substitute a child care decision in relation to section 67CC that an individual is or is not eligible for CCS for a child by fee reduction, the Secretary:
(a)
must give written notice of the review decision to the individual (the
affected person
); and
(b)
may give written notice of the review decision to the provider of any approved child care service at which the child has been enrolled since the determination under section 67CC first took effect.
106A(2)
If the Secretary makes a review decision under section 105 to vary or substitute a child care decision in relation to section 67CD (entitlement to be paid CCS or ACCS) for an individual in relation to sessions of care, or to affirm a child care decision in relation to section 67CD for an individual in relation to sessions of care when reviewing the child care decision because of section 105E, the Secretary:
(a)
must give written notice of the review decision to the individual (the
affected person
); and
(b)
if the review decision is a fee reduction decision - must give written notice of the decision and the fee reduction amount for the decision to the provider of the approved child care service that provided the sessions of care; and
(c)
if the review decision is not a fee reduction decision - may give written notice of the decision to the provider of the approved child care service that provided the sessions of care.
106A(3)
If the review decision is a fee reduction decision, and the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2), a notice under subsection (2) of this section must include a statement to that effect.
106A(4)
If the Secretary makes a review decision under section 105 to vary or substitute a child care decision in relation to section 67CF (entitlement to be paid CCS or ACCS in substitution for a person who has died), the Secretary must give written notice of the review decision to the individual for whom the determination under section 67CF was made (the
affected person
).
106A(5)
If the Secretary makes a review decision under section 105 to vary or substitute a child care decision in relation to section 67CH (entitlement of provider to be paid ACCS (child wellbeing)), the Secretary must give written notice of the review decision to the provider for whom the determination under section 67CH was made (the
affected person
).
106A(6)
If the Secretary makes a review decision under section 105 to vary or substitute a decision made under Part 8 or 8A in relation to a provider (or a decision made on review of such a decision), the Secretary must give written notice of the review decision to the provider (the
affected person
).
106A(7)
A notice under this section to an affected person must state the effect of the review decision and inform the affected person that the affected person may apply for review of the review decision in the manner set out in this Part.
106A(8)
A notice under this section may be given to a provider by making the notice available to the provider using an electronic interface.
106A(9)
A contravention of this section in relation to a review decision does not affect the validity of the review decision.
History
S 106A inserted by No 22 of 2017, s 3 and Sch 1 item 123, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 106B
Notice to AAT
106B(1)
If the Secretary makes a review decision under section 105 to vary or substitute a decision after a person has applied to the AAT for a review in relation to the decision, the Secretary must give written notice of the review decision to the Registrar of the AAT.
[
CCH Note:
S 106B(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" in the heading, "to the ART" for "to the AAT" and "ART Principal Registrar" for "Registrar of the AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
106B(2)
A contravention of this section in relation to a review decision does not affect the validity of the review decision.
History
S 106B inserted by No 22 of 2017, s 3 and Sch 1 item 123, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 107
Date of effect of certain decisions made under section 105 in relation to family tax benefit by instalment
107(1)
Subject to subsection (1AA), if:
(a)
the Secretary reviews, under section 105 (including because of the operation of section 105A), a decision (the
original decision
) relating to the payment to a person of family tax benefit by instalment; and
(b)
the Secretary decides (the
review decision
) to vary the original decision or set aside the original decision and substitute a new decision; and
(c)
the review decision will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment; and
(d)
the review decision is made more than 52 weeks after the person concerned was given notice of the original decision;
the date of effect of the review decision is the first day of the period to which the original decision relates.
(e)
(Repealed by No 85 of 2016)
(f)
(Repealed by No 85 of 2016)
History
S 107(1) amended by No 85 of 2016, s 3 and Sch 1 items 1 and 2, by substituting "subsection (1AA)" for "subsections (1A), (3A), (3B), (3C) and (3D)" and "is the first day of the period to which the original decision relates" for all the words after "date of effect of the review decision", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 107(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year. All the words after "date of effect of the review decision" formerly read:
is:
(e)
unless paragraph (f) applies - the date that would give full effect to the review decision; or
(f)
if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the review decision was made - that first day.
S 107(1) amended by No 46 of 2016, s 3 and Sch 2 items 13 and 14, by substituting "subsections (1A)" for "subsections (3)" and inserting "(including because of the operation of section 105A)" in para (a), applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
S 107(1) amended by No 49 of 2012, s 3 and Sch 1 item 3, by substituting ", (3B), (3C) and (3D)" for "and (3B)", effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 107(1) amended by No 53 of 2011, s 3 and Sch 2 item 5, by substituting "subsections (3), (3A) and (3B)" for "subsection (3)", effective 1 July 2011.
107(1AA)
If:
(a)
paragraphs (1)(a), (b), (c) and (d) apply; and
(b)
the first day of the period to which the original decision relates is earlier than the first day (the
cut-off day
) of the income year before the income year in which the review decision was made;
then, despite subsection (1), the person cannot be paid any entitlement created or increased as mentioned in paragraph (1)(c) (including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.
[
CCH Note:
S 107(1AA) will be amended by No 85 of 2016, s 3 and Sch 2 item 1, by omitting "(including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement)", effective at the same time as Part 3 of Schedule 3 to the Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Act 2016 commences. No 85 of 2016, s 3 and Sch 2 item 5(1) contains the following saving provision:
5 Saving provisions
(1)
Despite the amendments of sections 107 and 109E of the A New Tax System (Family Assistance) (Administration) Act 1999 made, those sections, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to review decisions made before, on or after that commencement.
…
]
History
S 107(1AA) inserted by No 85 of 2016, s 3 and Sch 1 item 3, applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 107(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
107(1A)
Subsection (1AA) does not apply if the review was undertaken under section 105 because of the operation of section 105A.
History
S 107(1A) amended by No 85 of 2016, s 3 and Sch 1 item 4, by substituting "Subsection (1AA) does not apply" for "Subsection (1) does not limit the date of effect of a review decision, in respect of an original decision that relates to the payment to a person of family tax benefit by instalment,", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 107(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the 2015-16 income year or a later income year.
S 107(1A) inserted by No 46 of 2016, s 3 and Sch 2 item 15, applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
107(2)
(Repealed by No 22 of 2017)
History
S 107(2) repealed by No 22 of 2017, s 3 and Sch 1 item 125, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 107(2) formerly read:
107(2)
Subject to subsection (3), if:
(a)
under section 105, the Secretary reviews any of the following decisions (the
original decision
):
(i)
a determination decision in respect of a weekly limit of hours (a determination of a weekly limit of hours is made under section 50H);
(ii)
a determination decision in respect of CCB % (a determination of CCB % is made under section 50J);
(iii)
a determination decision in respect of schooling % (a determination of schooling % is made under section 50K);
(iv)
a determination decision in respect of no entitlement (a determination of no entitlement is made under section 50G);
(v)
a determination decision in respect of eligibility for the special grandparent rate (a determination of this eligibility is made under subsection 50T(1)); and
(b)
the Secretary decides (the
review decision
) to vary the original decision or set aside the original decision and substitute a new decision; and
(c)
the review decision would have the effect of creating or increasing an entitlement to be paid child care benefit by fee reduction; and
(d)
the review decision is made more than 52 weeks after the person concerned was given notice of the original decision;
the date of effect of the review decision is:
(e)
unless paragraph (f) applies - the date that would give full effect to the review decision; or
(f)
if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the review decision was made - that first day.
S 107(2) amended by No 132 of 2004, s 3 and Sch 4 items 26 and 27, by omitting "and" from the end of para (a)(iv) and inserting para (a)(v), applicable to sessions of care provided in a week that commences after 1 January 2005.
S 107(2) amended by No 30 of 2003, s 3 and Sch 2 item 84, by substituting "date of effect of" for "date of", effective 1 July 2000.
107(3)
(Repealed by No 22 of 2017)
History
S 107(3) repealed by No 22 of 2017, s 3 and Sch 1 item 125, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 107(3) formerly read:
107(3)
Subsection (2) does not limit the date of effect of a review decision, in respect of an original decision that relates to the payment to a person of child care benefit by fee reduction, if the review was undertaken because the Commissioner of Taxation had made an assessment of the taxable income for a particular income year of each person:
(a)
whose taxable income is relevant in determining the first-mentioned person's CCB %; and
(b)
who was required to lodge an income tax return in respect of that year;
on the basis of the return lodged by each such person in accordance with subsection (3AA).
S 107(3) substituted by No 46 of 2016, s 3 and Sch 2 item 16, applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year. S 107(3) formerly read:
107(3)
Subsection (1) or (2) does not limit the date of effect of a review decision in respect of an original decision that relates to the payment to a person of:
(a)
family tax benefit by instalment; or
(b)
child care benefit by fee reduction;
if the review was undertaken because the Commissioner of Taxation had made an assessment of the taxable income for a particular income year of each person:
(c)
whose taxable income is relevant in determining the first-mentioned person's eligibility for, or rate of, family tax benefit, or CCB %; and
(d)
who was required to lodge an income tax return in respect of that year;
on the basis of the return lodged by each such person in accordance with subsection (3AA).
S 107(3) amended by No 14 of 2014, s 3 and Sch 12 item 18, by substituting "in accordance with subsection (3AA)" for "before the end of the income year next following that year", applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
107(3AA)
(Repealed by No 22 of 2017)
History
S 107(3AA) repealed by No 22 of 2017, s 3 and Sch 1 item 125, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 107(3AA) formerly read:
107(3AA)
For the purposes of subsection (3), the income tax return of a person in respect of a particular income year (the
base year
) must be lodged before the end of:
(a)
the first income year after the base year; or
(b)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.
S 107(3AA) inserted by No 14 of 2014, s 3 and Sch 12 item 19, applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
107(3AB)
(Repealed by No 22 of 2017)
History
S 107(3AB) repealed by No 22 of 2017, s 3 and Sch 1 item 125, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 107(3AB) formerly read:
107(3AB)
The further period under paragraph (3AA)(b) must end no later than the end of the second income year after the base year.
S 107(3AB) inserted by No 14 of 2014, s 3 and Sch 12 item 19, applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
107(3A)
(Repealed by No 36 of 2018)
History
S 107(3A) repealed by No 36 of 2018, s 3 and Sch 2 item 17, effective 1 July 2018. No 36 of 2018, s 3 and Sch 2 item 22 contains the following application provision:
22 Application of amendments
(1)
The amendments made by this Part apply in relation to the day (the
commencement day
) this item commences and later days.
(2)
However, despite the amendments made by this Part, as in force before that day, continue to apply in relation to any days that occur before the commencement day.
S 107(3A) formerly read:
107(3A)
Subsection (1AA) does not apply if the following apply:
(a)
under section 61A of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person, an FTB child of the person and a day;
(b)
the review is undertaken because:
(i)
before the end of the first income year after the income year in which the FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act, the Secretary becomes aware of information suggesting that section 61A of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day; and
(ii)
at any time, the Secretary is satisfied that section 61A of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day.
S 107(3A) amended by No 85 of 2016, s 3 and Sch 1 item 5, by substituting "Subsection (1AA) does not apply" for "Subsection (1) does not limit the date of effect of a review decision, in respect of an original decision that relates to the payment to a person of family tax benefit by instalment,", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 107(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
S 107(3A) amended by No 70 of 2013, s 3 and Sch 2B item 48, by substituting "first income year after the income year in which the FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act" for "second income year after the income year in which the FTB child turned 4" in para (b)(i), applicable in relation to an income year referred to in subsection 61A(1) or (2) or 61B(1) or (2) of the A New Tax System (Family Assistance) Act 1999 that is the 2012-13 income year or a later income year.
S 107(3A) inserted by No 53 of 2011, s 3 and Sch 2 item 6, effective 1 July 2011.
107(3B)
(Repealed by No 36 of 2018)
History
S 107(3B) repealed by No 36 of 2018, s 3 and Sch 2 item 17, effective 1 July 2018. For application provision, see note under s 107(3A). S 107(3B) formerly read:
107(3B)
Subsection (1AA) does not apply if the review is undertaken because of subsections 61A(1), (2) and (2A) of the Family Assistance Act not applying in relation to the person because of the operation of subsection 61A(3) of that Act.
S 107(3B) amended by No 85 of 2016, s 3 and Sch 1 item 5, by substituting "Subsection (1AA) does not apply" for "Subsection (1) does not limit the date of effect of a review decision, in respect of an original decision that relates to the payment to a person of family tax benefit by instalment,", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 107(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
S 107B(3B) amended by No 49 of 2012, s 3 and Sch 6 item 30, by substituting "subsections 61A(1), (2) and (2A)" for "subsection 61A(1) or (2)", effective 1 July 2012.
S 107(3B) inserted by No 53 of 2011, s 3 and Sch 2 item 6, effective 1 July 2011.
107(3C)
(Repealed by No 36 of 2018)
History
S 107(3C) repealed by No 36 of 2018, s 3 and Sch 2 item 17, effective 1 July 2018. For application provision, see note under s 107(3A). S 107(3C) formerly read:
107(3C)
Subsection (1AA) does not apply if the following apply:
(a)
under section 61B of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person, an FTB child of the person and a day;
(b)
the review is undertaken because:
(i)
before the end of the first income year after the income year in which the FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act, the Secretary becomes aware of information suggesting that section 61B of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day; and
(ii)
at any time, the Secretary is satisfied that section 61B of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day.
S 107(3C) amended by No 85 of 2016, s 3 and Sch 1 item 5, by substituting "Subsection (1AA) does not apply" for "Subsection (1) does not limit the date of effect of a review decision, in respect of an original decision that relates to the payment to a person of family tax benefit by instalment,", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 107(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
S 107(3C) amended by No 70 of 2013, s 3 and Sch 2B item 49, by substituting "first income year after the income year in which the FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act" for "second income year after the income year in which the FTB child turned 1, 2 or 5 (as the case requires)" in para (b)(i), applicable in relation to an income year referred to in subsection 61A(1) or (2) or 61B(1) or (2) of the A New Tax System (Family Assistance) Act 1999 that is the 2012-13 income year or a later income year.
S 107(3C) inserted by No 49 of 2012, s 3 and Sch 1 item 4, effective 1 July 2012. No 49 of 2012, s 3 and Sch 1 item 52 contains the following application and transitional provisions:
52 Application and transitional provisions
(1)
Subject to subitems (2) and (3), if, before the commencement of this item, an individual was eligible for maternity immunisation allowance under subsection 39(2), (2A), (3), (4), (5), (6) or (9) of the Assistance Act, then, despite the amendments made by Parts 1 and 2, the Assistance Act and the Administration Act, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to that eligibility.
(2)
A claim for payment of maternity immunisation allowance in normal circumstances, based on eligibility referred to in subitem (1), must be made before the end of the earlier of the following days:
(a)
the last day for making the claim under the Administration Act (worked out in accordance with subsection 39(4) of that Act);
(b)
30 June 2013.
(3)
Paragraph 40(b) of the Assistance Act applies, on and after the commencement of this item, only if the death concerned occurs before 1 July 2013.
(4)
Despite the amendment made by item 47, section 52-150 of the Income Tax Assessment Act 1997 (as in force immediately before the commencement of that item) continues to apply on and after that commencement in relation to payments of maternity immunisation allowance made before, on or after that commencement.
(5)
Despite the amendments made by items 48, 50 and 51:
(a)
paragraph (f) of the definition of
category I welfare payment
in section 123TC of the Social Security (Administration) Act 1999 (as in force immediately before the commencement of those items); and
(b)
paragraph (q) of the definition of
category Q welfare payment
in that section as so in force; and
(c)
paragraph (d) of the definition of
category S welfare payment
in that section as so in force;
continue to apply on and after that commencement in relation to payments of maternity immunisation allowance made before, on or after that commencement.
(6)
In this item:
Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
Assistance Act
means the A New Tax System (Family Assistance) Act 1999.
107(3D)
(Repealed by No 36 of 2018)
History
S 107(3D) repealed by No 36 of 2018, s 3 and Sch 2 item 17, effective 1 July 2018. For application provision, see note under s 107(3A). S 107(3D) formerly read:
107(3D)
Subsection (1AA) does not apply if the review is undertaken because of subsections 61B(1), (2) and (3) of the Family Assistance Act not applying in relation to the person because of the operation of subsection 61B(4) of that Act.
S 107(3D) amended by No 85 of 2016, s 3 and Sch 1 item 5, by substituting "Subsection (1AA) does not apply" for "Subsection (1) does not limit the date of effect of a review decision, in respect of an original decision that relates to the payment to a person of family tax benefit by instalment,", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 107(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
S 107(3D) inserted by No 49 of 2012, s 3 and Sch 1 item 4, effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
107(4)
(Repealed by No 22 of 2017)
History
S 107(4) repealed by No 22 of 2017, s 3 and Sch 1 item 125, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 107(4) formerly read:
107(4)
In this section:
determination decision
means a decision that is a determination as originally made, or, if varied, the variation of the determination.
History
S 107 substituted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69. For former wording of s 107 see history note under Div 1 heading.
SECTION 107A
107A
Date of effect of certain decisions made under section 105 in relation to eligibility for CCS
If:
(a)
the Secretary makes a review decision under section 105 to vary, or set aside and substitute a new decision for, a child care decision in relation to section 67CC (eligibility for CCS) for an individual; and
(b)
the review decision has the effect that the individual becomes eligible for CCS for a child, or eligible for additional days;
the date of effect of the review decision cannot be earlier than the first day of the income year before the income year in which the review decision was made.
History
S 107A inserted by No 22 of 2017, s 3 and Sch 1 item 126, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdivision B - Review initiated by the applicant
History
Subdiv B inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 108
Decisions that may be reviewed under section 109A
Decisions that may and may not be reviewed under section 109A
108(1)
A decision of any officer under the family assistance law must be reviewed on application under section 109A unless an exception set out in subsection (2), (5) or (6) applies to the decision.
History
S 108(1) amended by No 22 of 2017, s 3 and Sch 1 item 127, by substituting "subsection (2), (5) or (6)" for "subsection (2)", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 108(1) substituted by No 146 of 2006, s 3 and Sch 5 item 81, effective 1 July 2008. S 108(1) formerly read:
Decisions that may and may not be reviewed under section 109A
108(1)
The following decisions must be reviewed on application under section 109A unless an exception set out in subsection (2) applies to the decision:
(a)
a decision of any officer under the family assistance law; or
(b)
a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 that is made on or after 1 July 2000.
108(2)
The exceptions to the rule in subsection (1) are:
(a)
a decision made by:
(i)
the Secretary personally; or
(ii)
another agency head himself or herself in the exercise of a delegated power; or
(iii)
the Chief Executive Centrelink in the exercise of a delegated power; or
(iv)
the Chief Executive Medicare in the exercise of a delegated power; or
(b)
a decision under section 67EB to pay an amount; or
(c)
a decision to give a person a notice under section 199E (notice about effect of non-compliance by provider on eligibility for CCS or ACCS); or
(ca)
(Repealed by No 22 of 2017)
(d)
a decision under section 205A (business continuity payments - reports not given); or
(da)
(Repealed by No 22 of 2017)
(daaa)
(Repealed by No 25 of 2011)
(db)-(df)
(Repealed by No 22 of 2017)
(e)
except as mentioned in subsection (3) or (4), a determination about a person's eligibility for, or entitlement to, family assistance other than CCS or ACCS if that determination:
(i)
is neither a determination made under section 19 because the Secretary is not satisfied that an estimate of adjusted taxable income is reasonable nor a determination varied under section 28A; and
(ii)
is wholly or partly based on an estimate of the amount of adjusted taxable income, or maintenance income, in a particular income year, to the extent that the determination is so based; or
(f)
a decision under section 199B to publicise information; or
(fa)
(Repealed by No 22 of 2017)
(g)
a decision under section 85GA of the Family Assistance Act (funding agreements) in relation to an agreement.
(h)
a decision under an instrument (including regulations) made under this Act or the Family Assistance Act.
History
S 108(2) amended by No 26 of 2021, s 3 and Sch 1 item 10, by inserting "- reports not given" in para (d), effective 27 March 2021. For application provisions, see note under s 205C.
S 108(2) amended by No 22 of 2017, s 3 and Sch 1 items 128-130, by substituting para (b) to (d) for para (b) to (df), "CCS or ACCS" for "child care benefit" in para (e) and substituting para (f) to (g), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) to (df) and (f) to (g) formerly read:
(b)
a determination of entitlement under section 51B in respect of an individual in so far as it relates to:
(i)
a rate certified by an approved child care service under subsection 76(1) of the Family Assistance Act; or
(ii)
a certificate relating to a weekly limit of hours given by an approved child care service under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act; or
(c)
a determination of entitlement under section 54B in respect of an approved child care service in so far as it relates to:
(i)
the service's eligibility under section 47 of the Family Assistance Act; or
(ii)
a rate certified by the service under subsection 76(2) of the Family Assistance Act; or
(iii)
a certificate relating to a weekly limit of hours given by the service under subsection 54(10), 55(6) or 56(4) of the Family Assistance Act; or
(ca)
a decision to give a person a notice under section 204A; or
(d)
a calculation of an amount of fee reduction under section 50Z or 50ZB, or a recalculation of such an amount under section 50ZA or 50ZC; or
(da)
a decision by the Secretary under section 219Q or subsection 219QA(2) to pay an amount in respect of fee reduction; or
(daaa)
(Repealed by No 25 of 2011)
(db)
a decision by the Secretary under section 219QC or subsection 219QD(2) to pay an amount in respect of child care rebate; or
(dba)
a decision under subsection 219RA(1A) not to pay enrolment advance; or
(dc)
a decision under section 219RD (business continuity payments); or
(dd)
a calculation of an amount of child care rebate for a week under section 65EAAA, or a recalculation of such an amount under section 65EAAD; or
(de)
a decision by the Secretary under subsection 65EAAAA(4) (allowing election after beginning of income year to be paid child care rebate weekly or quarterly) or under subsection 65EAAAB(3) (day on which new payment arrangement begins); or
(df)
a calculation of an amount of child care rebate for a quarter under section 65EAA, or a recalculation of such an amount under section 65EAB; or
(f)
except as mentioned in subsection (3), a determination about a person's entitlement to child care benefit or a person's CCB % under section 50J, if that determination:
(i)
is not a determination made under section 50J, because of the application of subsection 55(2), or an entitlement determination made under section 53D, because of the operation of subsection 55A(2), or a determination varied under section 60E; and
(ii)
is wholly or partly based on an estimate of the amount of adjusted taxable income in a particular income year, to the extent that the determination is so based; or
(fa)
a decision under section 201B to publicise information about:
(i)
the doing of one or more of the things mentioned in paragraphs 200(1)(a) to (i); or
(ii)
a suspension under subsection 201A(1); or
(g)
a decision under Division 2 of Part 8C (infringement notices); or
S 108(2) amended by No 31 of 2014, s 3 and Sch 1 item 3, by substituting "subsection 219RA(1A)" for "subsection 218RA(1A)" in para (dba), effective 24 June 2014.
S 108(2) amended by No 79 of 2011, s 3 and Sch 3 item 2, by inserting para (h), applicable in relation to decisions made on or after 22 August 2011.
S 108(2) amended by No 79 of 2011, s 3 and Sch 1 item 19, by inserting para (daaa), effective 26 July 2011.
S 108(2) amended by No 25 of 2011, s 3 and Sch 2 items 4 and 5, by repealing para (daaa) and inserting para (dba), effective 26 July 2011. Para (daaa) formerly read:
(daaa)
a decision under subsection 219RA(1A) not to pay an enrolment advance; or
S 108(2) amended by No 32 of 2011, s 3 and Sch 4 item 29, by substituting para (a), effective 1 July 2011. No 32 of 2011, s 3 and Sch 5 item 1 contains the following transitional provisions:
1 Transitional regulations
(1)
The Governor-General may make regulations in relation to transitional matters arising out of the amendments made by this Act.
(2)
Regulations that are made:
(a)
under subitem (1); and
(b)
within 6 months after the commencement of this item;
may be expressed to take effect at a time that is earlier than the time when the regulations are made. The time must not be earlier than the commencement of this item.
(3)
Subitem (2) has effect despite section 12 of the Legislative Instruments Act 2003.
Para (a) formerly read:
(a)
a decision made by the Secretary personally or by another agency head himself or herself in the exercise of a delegated power; or
S 108(2) amended by No 25 of 2011, s 3 and Sch 1 items 40 and 41, by subtituting paras (da) to (df) for paras (da) to (db), and substituting "paragraphs 200(1)(a) to (i)" for "paragraphs 200(1)(a) to (h)" in para (fa)(i), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). Paras (da) to (db) formerly read:
(da)
a decision by the Secretary under section 219Q or subsection 219QA(2) to pay an amount in respect of fee reduction; or
(daa)
a decision under section 219RD (business continuity payments); or
(db)
a calculation of an amount of child care rebate for a quarter under section 65EAA, or a recalculation of such an amount under section 65EAB; or
S 108(2) amended by No 34 of 2010, s 3 and Sch 1 item 10, by inserting para (daa), effective 13 April 2010.
S 108(2) amended by No 50 of 2009, s 3 and Sch 1 item 32, by substituting "child care rebate" for "child care tax rebate" in para (db), effective 24 June 2009.
S 108(2) amended by No 53 of 2008, s 3 and Sch 5 item 12, by inserting para (fa), applicable in relation to:
(a) a thing done under subsection 200(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 25 June 2008 (whether or not the thing is done in relation to non-compliance happening before that commencement); and
(b) a decision to suspend under subsection 201A(1) of that Act made after that commencement (whether or not the grounds for the suspension happen before that commencement).
S 108(2) amended by No 53 of 2008, s 3 and Sch 2 item 20, by inserting para (db), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 108(2) amended by No 53 of 2008, s 3 and Sch 1 item 62, by substituting "application of subsection 55(2)" for "operation of subsection 55(2)" in para (f)(i), applicable in relation to care provided by an approved child care service to a child on or after 7 July 2008.
S 108(2) amended by No 118 of 2007, s 3 and Sch 3 item 5, by inserting para (ca), effective 29 June 2007.
S 108(2) amended by No 118 of 2007, s 3 and Sch 2 item 3, by inserting para (g) at the end, effective 1 July 2007.
S 108(2) amended by No 118 of 2007, s 3 and Sch 1 item 56, by substituting paras (d) and (da) for para (d), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (d) formerly read:
(d)
a decision by the Secretary under Division 2 of Part 8A (advances to approved child care services); or
S 108(2) amended by No 30 of 2003, s 3 and Sch 2 item 85, by omitting "or (4)" after "subsection (3)" in para (f), effective 1 July 2000.
108(2A)
Paragraph (2)(h) does not apply in relation to a decision under an instrument if the instrument provides that the decision is reviewable for the purposes of this section.
History
S 108(2A) inserted by No 79 of 2011, s 3 and Sch 3 item 3, applicable in relation to decisions made on or after 22 August 2011.
108(3)
A determination about a person's (the
applicant's
) eligibility for, or entitlement to, family assistance other than CCS, to the extent the determination is based on an estimate of adjusted taxable income for an income year (the
relevant income year
), is not to be reviewed under section 109A unless the applicant applies for the review after the end of the relevant income year and one of the following paragraphs applies:
(a)
the Commissioner of Taxation has, on the basis of income tax returns lodged before the end of the income year immediately after the relevant income year, made an assessment of the taxable income for the relevant income year of all persons whose taxable income was relevant in making the determination;
(b)
there is no person whose taxable income was relevant in making the determination who was required to lodge an income tax return for the relevant income year.
History
S 108(3) substituted by No 22 of 2017, s 3 and Sch 1 item 131, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 108(3) formerly read:
108(3)
A determination about a person's (the
applicant's
):
(a)
eligibility for, or entitlement to, family assistance; or
(b)
CCB %;
to the extent that the determination was based on an estimate of the amount of adjusted taxable income in a particular income year, may be reviewed under section 109A only if the applicant seeks that review after the end of that year and either:
(c)
the Commissioner of Taxation has made an assessment, in respect of that year, of the taxable income of each person:
(i)
whose taxable income was relevant in determining the applicant's eligibility for, or rate of, that family assistance or the applicant's CCB %; and
(ii)
who had been required to lodge an income tax return in respect of that year;
on the basis of the return lodged by each such person before the end of the income year following that year; or
(d)
there was no person whose taxable income in respect of that year was relevant in determining the applicant's eligibility for, or rate of, that family assistance, or the applicant's CCB %, who was required to lodge an income tax return in respect of that year.
108(4)
A determination about a person's (the
applicant's
) eligibility for, or entitlement to, family tax benefit to the extent that the determination was based on an estimate of the amount of maintenance income in a particular income year, may be reviewed under section 109A only if the applicant seeks that review after the end of that year.
108(5)
A child care decision about an individual's entitlement to be paid CCS for a week, to the extent the child care decision is based on:
(a)
the individual's adjusted taxable income for the income year (the
relevant income year
) in which the CCS fortnight that includes the week starts; or
(b)
the individual's activity test result for the CCS fortnight that includes the week;
is not to be reviewed under section 109A unless the individual has met the CCS reconciliation conditions for the relevant income year.
History
S 108(5) inserted by No 22 of 2017, s 3 and Sch 1 item 132, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
108(6)
A child care decision made because of subsection 105E(2) is not to be reviewed under section 109A unless the individual has met the CCS reconciliation conditions for the relevant income year.
History
S 108(6) inserted by No 22 of 2017, s 3 and Sch 1 item 132, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
History
S 108 substituted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69. For former wording of s 108 see history note under Div 1 heading.
SECTION 109
109
REPEALED
(Repealed by No 146 of 2006)
History
S 109 repealed by No 146 of 2006, s 3 and Sch 5 item 82, effective 1 July 2008. S 109 formerly read:
SECTION 109 Persons affected by certain child support decisions
109(1)
If a decision is made under subsection 91A(3) of the Child Support (Assessment) Act 1989 about a particular agreement, then, for the purposes of the application of section 109A in relation to the decision:
(a)
both of the parties to the agreement are taken to be persons affected by the decision; but
(b)
only one of the parties is entitled to apply for a review of the decision.
109(2)
If a party to an agreement that is the subject of a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 applies under section 109A for a review of the decision, the person reviewing the decision must:
(a)
by notice in writing or in another manner approved by the Secretary:
(i)
inform the other party of the making of the application; and
(ii)
give the other party such of the information contained in the application as is reasonably necessary to enable the party to make a submission in connection with the review; and
(b)
give both parties a reasonable opportunity to make a submission in connection with the review.
SECTION 109A
Review of certain decisions may be initiated by applicant
109A(1)
A person affected by a decision (the
original decision
):
(a)
that is not a care percentage decision; and
(b)
that is not a decision under Part 8 (approval of providers of child care services); and
(c)
that, under section 108, must be reviewed under this section;
may apply to the Secretary for review of the original decision.
History
S 109A(1) substituted by No 22 of 2017, s 3 and Sch 1 item 133, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109A(1) formerly read:
109A(1)
A person affected by a decision (the
original decision
):
(a)
that is not a care percentage decision; and
(b)
that, under section 108, must be reviewed under this section;
may apply to the Secretary for review of the original decision.
Note:
If an application is made under this section for review of a decision about a person's entitlement to child care benefit, and a decision has also been made about the person's entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.
S 109A(1) and (1A) substituted for s 109A(1) by No 65 of 2010, s 3 and Sch 2 item 24, effective 1 July 2010. S 109A(1) formerly read:
109A(1)
A person affected by a decision (the
original decision
) that, under section 108, must be reviewed under this section, may apply to the Secretary for review of the decision.
Note:
If an application is made under this section for review of a decision about a person's entitlement to child care benefit, and a decision has also been made about the person's entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.
S 109A(1) amended by No 50 of 2009, s 3 and Sch 2 item 15, by substituting the note, applicable in relation to each application made on or after 24 June 2009:
(a) under section 109A, 111 or 142 of the A New Tax System (Family Assistance) (Administration) Act 1999; and
(b) for review of a decision relating to an individual's entitlement to child care benefit.
The note formerly read:
Note:
If an application is made for review of a decision relating to a person's child care benefit entitlement for an income year under this section and the review affects the person's entitlement to child care tax rebate for the year, the person's entitlement to that rebate is automatically reviewed: see Division 5.
S 109A(1) amended by No 53 of 2008, s 3 and Sch 5 item 13, applicable to decisions made after 25 June 2008.
109A(1A)
A person affected by a decision (the
original decision
):
(a)
that is a care percentage decision; and
(b)
that, under section 108, must be reviewed under this section;
may apply to the Secretary, or the Child Support Registrar, for review of the original decision.
History
S 109A(1) and (1A) substituted for s 109A(1) by No 65 of 2010, s 3 and Sch 2 item 24, effective 1 July 2010.
109A(1B)
If a decision (the
original decision
):
(a)
is made under Part 8 (approval of providers of child care services) in relation to a provider; and
(b)
under section 108, must be reviewed under this section;
the provider may apply to the Secretary for review of the original decision.
History
S 109A(1B) inserted by No 22 of 2017, s 3 and Sch 1 item 134, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
109A(2)
If the person makes an application under subsection (1), (1A) or (1B), the Secretary must either:
(a)
review the original decision and decide (the
review decision
) to:
(i)
affirm it; or
(ii)
vary it; or
(iii)
set it aside and substitute a new decision; or
(b)
arrange for an authorised review officer (see section 109C) to do so.
History
S 109A(2) amended by No 22 of 2017, s 3 and Sch 1 item 135, by substituting ", (1A) or (1B)" for "or (1A)", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 109A(2) amended by No 65 of 2010, s 3 and Sch 2 item 25, by substituting "makes an application under subsection (1) or (1A)" for "does so", effective 1 July 2010.
109A(2A)
If:
(a)
the review involves (wholly or partly) a review of an original decision that is a care percentage decision; and
(b)
a consideration of an objection to a decision carried out under Part VII of the Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) the consideration of the determination to which the care percentage decision relates;
the Secretary must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.
History
S 109A(2A) inserted by No 65 of 2010, s 3 and Sch 2 item 26, effective 1 July 2010.
109A(3)
If:
(a)
the person who reviews the decision (the
decision reviewer
) makes a review decision to set aside an original decision; and
(b)
the decision reviewer is satisfied that an event that did not occur would have occurred if the original decision had not been made;
the decision reviewer may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
109A(4)
If:
(a)
a person who may apply to the Secretary or Child Support Registrar for review of a decision under subsection (1), (1A) or (1B) has not done so; and
(b)
the person applies to the AAT for review of the decision (despite not being entitled to do so);
the person is taken to have applied to the Secretary or Child Support Registrar for review of the decision under that subsection on the day on which the person applied to the AAT.
[
CCH Note:
S 109A(4) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" (wherever occurring), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 109A(4) amended by No 22 of 2017, s 3 and Sch 1 item 136, by substituting ", (1A) or (1B)" for "or (1A)" in para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 109A(4) amended by No 60 of 2015, s 3 and Sch 5 item 8, by substituting "AAT" for "SSAT" (wherever occurring), effective 1 July 2015.
S 109A(4) amended by No 65 of 2010, s 3 and Sch 2 items 27 and 28, by substituting "Secretary or Child Support Registrar for review of a decision under subsection (1) or (1A)" for "Secretary for review of a decision under subsection (1)" in para (a) and substituting "Secretary or Child Support Registrar for review of the decision under that subsection" for "Secretary for review of the decision under subsection (1)", effective 1 July 2010.
History
S 109A inserted by No 45 of 2000. For transitional provisions see note under s 69.
SECTION 109B
Notice to be given of decisions under section 109A
Decision reviewer to give notice of section 109A decision
109B(1)
The decision reviewer of a decision reviewed under section 109A must give notice of the review decision as set out in this section.
Notice of decisions relating to CCS or ACCS
109B(2)
If a review decision is a decision to affirm, vary or substitute a child care decision in relation to section 67CC that an individual is or is not eligible for CCS for a child by fee reduction, the decision reviewer:
(a)
must give written notice of the review decision to the individual; and
(b)
may give written notice of the review decision to the provider of any approved child care service at which the child has been enrolled since the determination under section 67CC first took effect.
History
S 109B(2) substituted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109B(2) formerly read:
109B(2)
If:
(a)
a review decision concerns an individual in respect of whom a determination of conditional eligibility for child care benefit by fee reduction is, or was, in force (the
applicant
); and
(b)
the review decision is to:
(i)
vary an original decision in respect of the applicant; or
(ii)
set aside an original decision in respect of the applicant and substitute a new decision; and
(c)
the review decision relates to one of the following decisions:
(i)
a determination decision in respect of conditional eligibility (a determination of conditional eligibility is made under section 50F);
(ii)
a determination decision in respect of a weekly limit of hours (a determination of a weekly limit of hours is made under section 50H);
(iii)
a determination decision in respect of CCB % (a determination of CCB % is made under section 50J);
(iv)
a determination decision in respect of schooling % (a determination of schooling % is made under section 50K);
(iva)
a determination decision in respect of eligibility for the special grandparent rate (a determination of this eligibility is made under subsection 50T(1));
(v)
a determination decision in respect of rate under subsection 81(2) of the Family Assistance Act;
(vi)
a determination decision in respect of no entitlement hours (a determination of no entitlement is made under section 50G);
the decision reviewer must give notice of the review decision to:
(d)
in all cases mentioned in paragraph (c) - the applicant; and
(e)
in the case mentioned in subparagraph (c)(v) - the approved child care service, or services, providing care to the child concerned.
S 109B(2) amended by No 118 of 2007, s 3 and Sch 1 item 57, by substituting paras (d) and (e), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Paras (d) and (e) formerly read:
(d)
the applicant; and
(e)
the approved child care service, or services, providing care to the child concerned.
S 109B(2) amended by No 132 of 2004, s 3 and Sch 4 item 28, by inserting para (c)(iva), applicable to sessions of care provided in a week that commences after 1 January 2005.
109B(2A)
If a review decision is a decision to affirm, vary or substitute a child care decision in relation to section 67CD (entitlement to be paid CCS or ACCS) for an individual in relation to sessions of care, the decision reviewer:
(a)
must give written notice of the review decision to the individual; and
(b)
if the review decision is a fee reduction decision - must give written notice of the decision and the fee reduction amount for the decision to the provider of the approved child care service that provided the sessions of care; and
(c)
if the review decision is not a fee reduction decision - may give written notice of the decision to the provider of the approved child care service that provided the sessions of care.
History
S 109B(2A) substituted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109B(2A) formerly read:
109B(2A)
The Secretary may make notice of a review decision mentioned in paragraph (2)(c) (other than subparagraph (2)(c)(v)) available to the approved child care service, or services, providing care to the child concerned, including by making the notice available to the service using an electronic interface.
S 109B(2A) inserted by No 118 of 2007, s 3 and Sch 1 item 58, effective 29 June 2007.For application and transitional provisions see note under Pt 8A heading.
History
S 109B(2A) inserted by No 118 of 2007, s 3 and Sch 1 item 58, effective 29 June 2007.For application and transitional provisions see note under Pt 8A heading.
109B(2B)
If the review decision is a fee reduction decision, and the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2), a notice under subsection (2A) of this section must include a statement to that effect.
History
S 109B(2B) substituted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109B(2B) formerly read:
109B(2B)
The Secretary may give notice of a review decision mentioned in subparagraph (2)(c)(v) by making the notice available to the service using an electronic interface.
S 109B(2B) inserted by No 118 of 2007, s 3 and Sch 1 item 58, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
109B(2C)
A notice under subsection (2) or (2A) may be given to a provider by making the notice available to the provider using an electronic interface.
History
S 109B(2C) inserted by No 22 of 2017, s 3 and Sch 1 item 137, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Notice to be given of other review decisions
109B(3)
If a review decision is in respect of any other original decision that may be reviewed under section 109A, other than an original decision referred to in subsection (2) or (2A), the decision reviewer must give the applicant written notice of his or her decision:
(a)
to affirm or vary the decision reviewed; or
(b)
to set it aside and substitute a new decision.
History
S 109B(3) amended by No 22 of 2017, s 3 and Sch 1 item 138, by inserting "or (2A)" after "subsection (2)", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 109B(3) substituted by No 146 of 2006, s 3 and Sch 5 item 83, effective 1 July 2008. S 109B(3) formerly read:
Notice to be given of other review decisions
109B(3)
If a review decision is in respect of any other original decision that may be reviewed under section 109A other than an original decision referred to in subsection (2), the decision reviewer must:
(a)
give the applicant written notice of his or her decision to affirm or vary the decision reviewed or to set it aside and substitute a new decision; and
(b)
if the decision is a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 about an agreement and the other party to the agreement has made a submission in relation to the review - also give the other party written notice of his or her decision.
109B(4)
(Repealed by No 22 of 2017)
History
S 109B(4) repealed by No 22 of 2017, s 3 and Sch 1 item 139, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109B(4) formerly read:
Meaning of determination decision
109B(4)
In this section:
determination decision
means a decision that is a determination as originally made or, if varied, the variation of the determination.
History
S 109B inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 109C
Authorised review officers
109C(1)
The Secretary must authorise officers to be authorised review officers for the purposes of this Division.
109C(2)
(Repealed by No 104 of 2020)
History
S 109C(2) repealed by No 104 of 2020, s 3 and Sch 1 item 9, effective 1 February 2020 and applicable in relation to an offence if the conduct constituting the offence occurs after 20 November 2020. S 109C(2) formerly read:
109C(2)
The Secretary must not authorise an officer of the Human Services Department unless the Secretary of the Human Services Department has agreed to the authorisation.
S 109C(2) amended by No 32 of 2011, s 3 and Sch 4 items 29A and 30, by substituting "officer of the Human Services Department" for "officer of an agency other than the Department" and "Secretary of the Human Services Department" for "head of the agency", effective 1 July 2011. For transitional provisions see note under s 108(2).
S 109C inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 109D
Review applications - time limits applicable to review of certain decisions
Time for making applications for review
109D(1)
Subject to this section, an application for review under section 109A of any decision (other than an excepted decision) must be made no later than:
(a)
for a decision in relation to CCS or ACCS (including a decision in relation to Part 8A) - 13 weeks after the applicant is notified of the decision; and
(b)
otherwise - 52 weeks after the applicant is notified of the decision.
[
CCH Note:
S 109D(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 9, by substituting "90 days" for "13 weeks" in para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 109D(1) substituted by No 22 of 2017, s 3 and Sch 1 item 140, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109D(1) formerly read:
Certain applications to be made within 52 weeks of notification of decision
109D(1)
Subject to this section, an application for review under section 109A of any decision (other than an excepted decision) must be made no later than 52 weeks after the applicant is notified of the decision concerned.
S 109D(1) amended by No 65 of 2010, s 3 and Sch 2 item 29, by substituting "section 109A" for "subsection 109A(1)", effective 1 July 2010.
Exception - Secretary may extend time limits in special circumstances
109D(2)
The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section 109A for review of a decision (other than an excepted decision) within the period specified for the decision in subsection (1), permit a person to make the application after the end of that period and within such further period as the Secretary determines to be appropriate.
History
S 109D(2) amended by No 22 of 2017, s 3 and Sch 1 item 141, by substituting "period specified for the decision" for "52 weeks mentioned", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 109D(2) amended by No 65 of 2010, s 3 and Sch 2 item 29, by substituting "section 109A" for "subsection 109A(1)", effective 1 July 2010.
Further exceptions
109D(3)
An application under section 109A for review of a decision (other than an excepted decision) to which paragraph (1)(b) applies may also be made after the 52 weeks mentioned in that paragraph if the application is for review of one or other of the following decisions:
(a)
a determination decision that a person is or is not entitled to be paid family tax benefit for a past period if the period occurs in the income year in which the application was made or in the previous income year (a determination of entitlement is made under section 17 or 19);
(b)
a determination decision that a person is or is not entitled to be paid family tax benefit by single payment/in substitution because of the death of another individual if the death occurred in the income year in which the application was made or in the previous income year (a determination of entitlement is made under section 18 or 19).
(c)-(h)
(Repealed by No 22 of 2017)
History
S 109D(3) amended by No 22 of 2017, s 3 and Sch 1 items 142-144, by substituting "to which paragraph (1)(b) applies may also be made after the 52 weeks mentioned in that paragraph" for "may also be made after the 52 weeks mentioned in subsection (1)", "or 19)." for "or 19);" in para (b) and repealing para (c) to (h), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (c) to (h) formerly read:
(c)
a determination decision that a weekly limit of hours applies to a person for a specified period if the end of the period occurred in the income year in which the application was made or in the previous income year (a determination of weekly limit of hours is made under section 50H);
(d)
a determination decision under section 81 of the Family Assistance Act that a rate of child care benefit applies to a person for a specified period if the end of the period occurred in the income year in which the application was made or in the previous income year;
(e)
a determination decision that a weekly limit of hours, CCB % or schooling % (these determinations are made under sections 50H, 50J and 50K respectively) applies to a person, if the decision took effect in the income year in which the application was made or in the previous income year;
(ea)
a determination decision that a person was, or was not, eligible for the special grandparent rate for a child (these determinations are made under subsection 50T(1)) if the decision took effect in the income year in which the application was made or in the previous income year;
(f)
a determination decision that a person is not entitled (a determination of no entitlement is made under section 50G) to be paid child care benefit by fee reduction if the decision took effect in the income year in which the application was made or in the previous income year;
(g)
a determination decision that a person is or is not entitled to be paid child care benefit for care provided by a registered carer for a past period if the end of the period occurred in the income year in which the application was made or in the previous income year (a determination of entitlement or no entitlement is made under section 52F or 52G);
(h)
a determination decision that a person is or is not entitled to be paid child care benefit by single payment/in substitution because of the death of another individual for care provided by a registered carer if the death occurred in the income year in which the application was made or in the previous income year (a determination of entitlement or no entitlement is made under section 53D or 53E).
S 109D(3) amended by No 65 of 2010, s 3 and Sch 2 item 29, by substituting "section 109A" for "subsection 109A(1)", effective 1 July 2010.
S 109D(3) amended by No 132 of 2004, s 3 and Sch 4 item 29, by inserting para (ea), applicable to sessions of care provided in a week that commences after 1 January 2005.
109D(4)
An application under section 109A for review of a decision (other than an excepted decision or a decision to which subsection (5A) relates) relating to the payment to a person of family assistance, or of one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021, may also be made after the period specified for the decision in subsection (1), if:
(a)
the application for review is made because of an assessment, by the Commissioner of Taxation, of taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (4A); or
(b)
the application for review is made:
(i)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (4A); and
(ii)
within 13 weeks after the relevant person was notified by the Commissioner of the outcome of the review; or
(c)
the family assistance is family tax benefit and the application for review is made:
(i)
because of a review, by the Child Support Registrar, of a previous decision by the Registrar about the child support entitlement of any relevant person; and
(ii)
within 13 weeks after the relevant person was notified by the Registrar of the outcome of the review.
(d)-(g)
(Repealed by No 36 of 2018)
[
CCH Note:
S 109D(4) will be amended by No 38 of 2024, s 3 and Sch 3 item 10, by substituting "90 days" for "13 weeks" in para (b)(ii) and (c)(ii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 109D(4) amended by No 97 of 2020, s 3 and Sch 1 item 9, by substituting ", 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021" for "or 2020 economic support payment", effective 14 November 2020.
S 109D(4) amended by No 22 of 2020, s 3 and Sch 4 item 9, by substituting ", ETR payment or 2020 economic support payment" for "or ETR payment", effective 25 March 2020.
S 109D(4) amended by No 22 of 2017, s 3 and Sch 1 items 145 and 146, by inserting "or a decision to which subsection (5A) relates" after "excepted decision" and substituting "period specified for the decision" for "52 weeks mentioned", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 109D(4) amended by No 36 of 2018, s 3 and Sch 2 items 18 and 19, by substituting "review." for "review; or" in para (c)(ii) and repealing para (d) to (g), effective 1 July 2018. For application provision, see note under s 107(3A). Para (d) to (g) formerly read:
(d)
the family assistance is family tax benefit and the following apply:
(i)
under section 61A of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person, an FTB child of the person and a day;
(ii)
the Secretary is satisfied the application for review is made because the person considers that section 61A of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii)
the application for review is made before the end of the first income year after the income year in which that FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act; or
(e)
the family assistance is family tax benefit and the application for review is made because of subsections 61A(1), (2) and (2A) of the Family Assistance Act not applying in relation to the person because of the operation of subsection 61A(3) of that Act; or
(f)
the family assistance is family tax benefit and the following apply:
(i)
under section 61B of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person, an FTB child of the person and a day;
(ii)
the Secretary is satisfied the application for review is made because the person considers that section 61B of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii)
the application for review is made before the end of the first income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act; or
(g)
the family assistance is family tax benefit and the application for review is made because of subsections 61B(1), (2) and (3) of the Family Assistance Act not applying in relation to the person because of the operation of subsection 61B(4) of that Act.
S 109D(4) amended by No 14 of 2014, s 3 and Sch 12 items 20 and 21, by substituting "in accordance with subsection (4A)" for "before the end of the next income year" in para (a) and (b)(i), applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
S 109D(4) amended by No 70 of 2013, s 3 and Sch 2B items 50 and 51, by substituting "first income year after the income year in which that FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act" for "second income year after the income year in which that FTB child turned 4" in para (d)(iii) and "first income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act" for "second income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires)" in para (f)(iii), applicable in relation to an income year referred to in subsection 61A(1) or (2) or 61B(1) or (2) of the A New Tax System (Family Assistance) Act 1999 that is the 2012-13 income year or a later income year.
S 109D(4) amended by No 49 of 2012, s 3 and Sch 6 item 31, by substituting "subsections 61A(1), (2) and (2A)" for "subsection 61A(1) or (2)" in para (e), effective 1 July 2012.
S 109D(4) amended by No 49 of 2012, s 3 and Sch 1 item 5, by inserting para (f) and (g), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 109D(4) amended by No 50 of 2012, s 3 and Sch 1 item 11, by substituting ", clean energy advance or ETR payment" for "or clean energy advance", effective 27 May 2012.
S 109D(4) amended by No 141 of 2011, s 3 and Sch 2 item 12, by substituting ", single income family bonus or clean energy advance" for "or single income family bonus", effective 14 May 2012.
S 109D(4) amended by No 53 of 2011, s 3 and Sch 2 item 7, by inserting paras (d) and (e) at the end, effective 1 July 2011.
S 109D(4) amended by No 65 of 2010, s 3 and Sch 2 item 29, by substituting "section 109A" for "subsection 109A(1)", effective 1 July 2010.
S 109D(4) amended by No 4 of 2009, s 3 and Sch 3 item 12, by substituting ", economic security strategy payment to families, back to school bonus or single income family bonus" for "or economic security strategy payment to families", effective 18 February 2009.
S 109D(4) amended by No 131 of 2008, s 3 and Sch 3 item 13, by inserting "or economic security strategy payment to families" after "one-off payment to families", effective 1 December 2008.
S 109D(4) amended by No 60 of 2004, s 3 and Sch 1 item 11, by inserting ", or of one-off payment to families," after "family assistance" (first occurring), effective 26 May 2004.
109D(4A)
For the purposes of paragraph (4)(a) or subparagraph (4)(b)(i), the income tax return of a person in respect of a particular income year (the
base year
) must be lodged before the end of:
(a)
the first income year after the base year; or
(b)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.
History
S 109D(4A) inserted by No 14 of 2014, s 3 and Sch 12 item 22, applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
109D(4B)
The further period under paragraph (4A)(b) must end no later than the end of the second income year after the base year.
History
S 109D(4B) inserted by No 14 of 2014, s 3 and Sch 12 item 22, applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
109D(5)
In subsection (4), a reference to a relevant person, in relation to the person first-mentioned in that subsection, is a reference:
(a)
so far as paragraph (4)(a) or (b) is concerned - to any person (including the first-mentioned person) whose taxable income is relevant in determining the first-mentioned person's eligibility for, or rate of, family assistance, one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021; and
(b)
so far as paragraph (4)(c) is concerned - to any person (including the first-mentioned person) whose entitlement to child support is relevant in determining the first-mentioned person's rate of family tax benefit.
History
S 109D(5) amended by No 97 of 2020, s 3 and Sch 1 item 10, by substituting ", 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021" for "or 2020 economic support payment" in para (a), effective 14 November 2020.
S 109D(5) amended by No 22 of 2020, s 3 and Sch 4 item 10, by substituting ", ETR payment or 2020 economic support payment" for "or ETR payment" in para (a), effective 25 March 2020.
S 109D(5) amended by No 22 of 2017, s 3 and Sch 1 item 147, by omitting ", or CCB %" after "ETR payment" from para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 109D(5) amended by No 50 of 2012, s 3 and Sch 1 item 12, by substituting ", clean energy advance or ETR payment" for "or clean energy advance" in para (a), effective 27 May 2012.
S 109D(5) amended by No 141 of 2011, s 3 and Sch 2 item 13, by substituting ", single income family bonus or clean energy advance" for "or single income family bonus" in para (a), effective 14 May 2012.
S 109D(5) amended by No 4 of 2009, s 3 and Sch 3 item 13, by substituting ", economic security strategy payment to families, back to school bonus or single income family bonus" for "or economic security strategy payment to families" in para (a), effective 18 February 2009.
S 109D(5) amended by No 131 of 2008, s 3 and Sch 3 item 14, by substituting ", one-off payment to families or economic security strategy payment to families" for "or one-off payment to families" in para (a), effective 1 December 2008.
S 109D(5) amended by No 60 of 2004, s 3 and Sch 1 item 12, by inserting "or one-off payment to families" after "family assistance" in para (a), effective 26 May 2004.
109D(5A)
An application under section 109A for review of a decision (other than an excepted decision) relating to the payment to an individual of CCS for a week may also be made after the 13 weeks mentioned in paragraph (1)(a) if the application for review is made:
(a)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week starts; and
(b)
within 13 weeks after the individual or other person was notified by the Commissioner of the outcome of the review.
[
CCH Note:
S 109D(5A) will be amended by No 38 of 2024, s 3 and Sch 3 item 11, by substituting "90 days" for "13 weeks" (wherever occurring), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 109D(5A) inserted by No 22 of 2017, s 3 and Sch 1 item 148, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
109D(6)
In this section:
determination decision
(Repealed by No 22 of 2017)
History
Definition of "determination decision" repealed by No 22 of 2017, s 3 and Sch 1 item 149, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The definition formerly read:
determination decision
means a decision that is a determination as originally made or, if varied, the variation of the determination.
excepted decision
means a decision:
(a)
relating to the payment to a person of family tax benefit by instalment; or
(b)
relating to the raising of a debt under Division 2 of Part 4; or
(c)
made under Part 8 (approval of providers of child care services).
History
Definition of "excepted decision" amended by No 22 of 2017, s 3 and Sch 1 item 150, by substituting para (c), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (c) formerly read:
(c)
of a kind mentioned in subsection 138(4) (decisions in relation to child care services and registered carers).
Note:
Applications by providers for review of decisions made under Division 2 of Part 4 relating to CCS or ACCS or decisions made under Part 8 are subject to the time limits set out in section 109DA.
History
S 109D(6) amended by No 125 of 2019, s 3 and Sch 2 item 4, by inserting the note, effective 13 December 2019.
S 109D(6) amended by No 60 of 2015, s 3 and Sch 5 item 9, by substituting "of a kind mentioned in subsection 138(4)" for "a decision of a kind mentioned in subsection 144(1)" in para (c) of the definition of "excepted decision", effective 1 July 2015. No 60 of 2015, s 3 and Sch 9 item 15BS contains the following transitional and saving provision:
15BS Subsection 109D(6) of the
A New Tax System (Family Assistance) (Administration) Act 1999
A decision that, immediately before the commencement day, was an excepted decision within the meaning of subsection 109D(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 continues to be an excepted decision on and after the commencement day, despite the amendments made by this Act.
S 109D(6) amended by No 118 of 2007, s 3 and Sch 3 item 6, by inserting para (c) at the end of the definition of "excepted decision", applicable in relation to decisions made after 29 June 2007.
History
S 109D inserted by No 45 of 2000. For transitional provisions see note under s 69.
SECTION 109DA
Review applications - time limits on certain applications by providers
109DA(1)
An application by a provider for review under subsection 109A(1) of a decision made under Division 2 of Part 4 relating to CCS or ACCS must be made no later than:
(a)
52 weeks after the provider is notified of the decision; or
(b)
if the provider was not notified of the decision - 52 weeks after the provider becomes aware of the decision.
109DA(2)
An application by a provider for review under subsection 109A(1B) of a decision made under Part 8 (approval of providers of child care services) must be made no later than:
(a)
14 days after the provider is notified of the decision; or
(b)
if the provider was not notified of the decision - 14 days after the provider becomes aware of the decision.
History
S 109DA substituted by No 125 of 2019, s 3 and Sch 2 item 5, applicable in relation to a decision made under Division 2 of Part 4 relating to CCS or ACCS on or after 13 December 2019. S 109DA formerly read:
SECTION 109DA Review applications - time limits on certain applications by providers
109DA
An application by a provider for review under subsection 109A(1) of a decision made under Part 8 (approval of providers of child care services) must be made no later than:
(a)
14 days after the provider is notified of the decision; or
(b)
if the provider was not notified of the decision - 14 days after the provider becomes aware of the decision.
S 109DA substituted by No 22 of 2017, s 3 and Sch 1 item 151, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109DA formerly read:
SECTION 109DA Review applications - time limits applicable to decisions in relation to child care services and registered carers
109DA
An application for review under subsection 109A(1) of a decision of a kind mentioned in subsection 138(4) (decisions in relation to child care services and registered carers) must be made no later than 28 days after the applicant is notified of the decision.
S 109DA amended by No 60 of 2015, s 3 and Sch 5 item 10, by substituting "subsection 138(4)" for "subsection 144(1)", effective 1 July 2015.
S 109DA inserted by No 118 of 2007, s 3 and Sch 3 item 7, applicable in relation to decisions made after 29 June 2007.
SECTION 109DB
109DB
Review of entitlement to be paid CCS or ACCS - taking account of changes of circumstances etc.
Section 105C applies to a decision on review under section 109A of a child care decision in relation tosection 67CD or 67CH as if the references to section 105 were references to section 109A.
Note:
Section 105C limits the information that can be taken into account in the decision on review.
History
S 109DB inserted by No 22 of 2017, s 3 and Sch 1 item 151, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 109DC
109DC
Review of entitlement to be paid CCS or ACCS - time limit on increase
Section 105D applies to a decision on review under section 109A of a child care decision in relation to section 67CD or 67CH as if:
(a)
the references to section 105 were references to section 109A; and
(b)
the references to the income year in which the decision on review is made were references to the income year in which the application for review is made; and
(c)
subparagraph (2)(a)(ii) were omitted; and
(d)
paragraph (2)(c) referred to the application being made instead of the review being conducted.
Note:
Section 105D limits when a decision on review can increase the amount of CCS or ACCS an individual or provider is entitled to be paid.
History
S 109DC inserted by No 22 of 2017, s 3 and Sch 1 item 151, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 109E
Date of effect of certain decisions relating to payment of family tax benefit by instalment
109E(1)
If:
(a)
a person applies under section 109A for review of a decision (the
original decision
) relating to the payment to the person of family tax benefit by instalment; and
(b)
the application is made more than 52 weeks after the person was given notice of the original decision; and
(c)
the Secretary or an authorised review officer decides, under subsection 109A(2), to vary the original decision or to set aside the original decision and substitute a new decision; and
(d)
the decision of the Secretary or authorised review officer (the
review decision
) will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;
the date of effect of the review decision is the first day of the period to which the original decision relates.
(e)
(Repealed by No 85 of 2016)
(f)
(Repealed by No 85 of 2016)
History
S 109E(1) amended by No 85 of 2016, s 3 and Sch 1 item 6, by substituting "is the first day of the period to which the original decision relates" for all the words after "date of effect of the review decision", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 109E(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year. All the words after "date of effect of the review decision" formerly read:
is:
(e)
unless paragraph (f) applies - the date that would give full effect to the review decision; or
(f)
if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the application was made - that first day.
S 109E(1) amended by No 65 of 2010, s 3 and Sch 2 item 30, by substituting "under section 109A" for "to the Secretary, under subsection 109A(1)," in para (a), effective 1 July 2010.
109E(2)
The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section 109A for review of the original decision within 52 weeks, determine that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.
History
S 109E(2) amended by No 65 of 2010, s 3 and Sch 2 item 31, by substituting "section 109A" for "subsection 109A(1)", effective 1 July 2010.
109E(2AA)
If:
(a)
paragraphs (1)(a), (b), (c) and (d) apply; and
(b)
the first day of the period to which the original decision relates is earlier than the first day (the
cut-off day
) of the income year before the income year in which the application referred to in paragraph (1)(b) was made;
then, despite subsection (1), the person cannot be paid any entitlement created or increased as mentioned in paragraph (1)(d) (including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.
[
CCH Note:
S 109E(2AA) will be amended by No 85 of 2016, s 3 and Sch 2 item 2, by omitting "(including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement)", effective at the same time as Part 3 of Schedule 3 to the Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Act 2016 commences. For saving provision, see note under s 107(1AA).]
History
S 109E(2AA) inserted by No 85 of 2016, s 3 and Sch 1 item 7, applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 109E(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
109E(2A)
Subsection (2AA) does not apply in relation to a decision by the Secretary or by an authorised review officer on an application by a person under section 109A for review of the original decision if:
(a)
as a result of the original decision, the person was entitled to be paid family tax benefit by instalment at a particular rate in respect of a period (the
same-rate benefit period
) that consists of, or is included in, a particular income year (the
relevant income year
); and
(aa)
the original decision is not a decision made under subsection 105(4) (including because of the operation of section 105A) or 109A(2); and
(b)
either:
(i)
if the same-rate benefit period to which the original decision relates is the only same-rate benefit period for the person for the relevant income year - the person satisfies the FTB reconciliation conditions for the same-rate benefit period; or
(ii)
if the same-rate benefit period to which the original decision relates is one of 2 or more same-rate benefit periods for the person for the relevant income year - the person satisfies the FTB reconciliation conditions for each of those same-rate benefit periods.
Note:
To work out when the person satisfied the FTB reconciliation conditions, see section 32B.
[
CCH Note:
S 109E(2A) will be amended by No 85 of 2016, s 3 and Sch 2 item 3, by omitting "(including because of the operation of section 105A)" from para (aa), effective at the same time as Part 3 of Schedule 3 to the Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Act 2016 commences. For saving provision, see note under s 107(1AA).]
History
S 109E(2A) amended by No 85 of 2016, s 3 and Sch 1 items 8 and 9, by substituting "Subsection (2AA) does not apply in relation to" for "Subsection (1) does not limit the date of effect of" and inserting para (aa), applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 109E(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the 2015-16 income year or a later income year.
S 109E(2A) inserted by No 46 of 2016, s 3 and Sch 2 item 17, applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
109E(3)
Subsection (2AA) does not apply in relation to a decision by the Secretary or by an authorised review officer on an application under section 109A for review of the original decision if:
(a)
(Repealed by No 46 of 2016)
(b)
the application for review is made:
(i)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (3A); and
(ii)
within 13 weeks after the relevant person was notified by the Commissioner of the outcome of the review; or
(c)
the application for review is made:
(i)
because of a review, by the Child Support Registrar, of a previous decision by the Registrar about the child support entitlement of any relevant person; and
(ii)
within 13 weeks after the relevant person was notified by the Registrar of the outcome of the review.
(d)-(g)
(Repealed by No 36 of 2018)
[
CCH Note:
S 109E(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 12, by substituting "90 days" for "13 weeks" in para (b)(ii) and (c)(ii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 109E(3) amended by No 36 of 2018, s 3 and Sch 2 items 20 and 21, by substituting "review." for "review; or" in para (c)(ii) and repealing para (d) to (g), effective 1 July 2018. For application provision, see note under s 107(3A). Para (d) to (g) formerly read:
(d)
the following apply:
(i)
under section 61A of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person mentioned in paragraph (1)(a) of this section, an FTB child of the person and a day;
(ii)
the Secretary is satisfied the application for review is made because the person considers that section 61A of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii)
the application for review is made before the end of the first income year after the income year in which that FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act; or
(e)
the application for review is made because of subsections 61A(1), (2) and (2A) of the Family Assistance Act not applying in relation to the person mentioned in paragraph (1)(a) of this section because of the operation of subsection 61A(3) of that Act; or
(f)
the following apply:
(i)
under section 61B of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person mentioned in paragraph (1)(a) of this section, an FTB child of the person and a day;
(ii)
the Secretary is satisfied the application for review is made because the person considers that section 61B of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii)the application for review is made before the end of the first income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act; or
(g)
the application for review is made because of subsections 61B(1), (2) and (3) of the Family Assistance Act not applying in relation to the person mentioned in paragraph (1)(a) of this section because of the operation of subsection 61B(4) of that Act.
S 109E(3)amended by No 85 of 2016, s 3 and Sch 1 item 10, by substituting "Subsection (2AA) does not apply in relation to" for "Subsection (1) does not limit the date of effect of", applicable in relation to a review decision made on or after 1 December 2016, where the original decision (referred to in paragraph 109E(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
S 109E(3) amended by No 46 of 2016, s 3 and Sch 2 item 18, by repealing para (a), applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year. Para (a) formerly read:
(a)
the application for review is made because of an assessment, by the Commissioner of Taxation, of taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (3A); or
S 109E(3) amended by No 14 of 2014, s 3 and Sch 12 items 23 and 24, by substituting "in accordance with subsection (3A)" for "before the end of the next income year" in para (a) and (b)(i), applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
S 109E(3) amended by No 70 of 2013, s 3 and Sch 2B items 52 and 53, by substituting "first income year after the income year in which that FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act" for "second income year after the income year in which that FTB child turned 4" in para (d)(iii) and "first income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act" for "second income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires)" in para (f)(iii), applicable in relation to an income year referred to in subsection 61A(1) or (2) or 61B(1) or (2) of the A New Tax System (Family Assistance) Act 1999 that is the 2012-13 income year or a later income year.
S 109E(3) amended by No 49 of 2012, s 3 and Sch 6 item 32, by substituting "subsections 61A(1), (2) and (2A)" for "subsection 61A(1) or (2)" in para (e), effective 1 July 2012.
S 109E(3) amended by No 49 of 2012, s 3 and Sch 1 item 6, by inserting para (f) and (g), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
S 109E(3) amended by No 53 of 2011, s 3 and Sch 2 item 8, by inserting paras (d) and (e) at the end, effective 1 July 2011.
S 109E(3) amended by No 65 of 2010, s 3 and Sch 2 item 31, by substituting "section 109A" for "subsection 109A(1)", effective 1 July 2010.
109E(3A)
For the purposes of subparagraph (3)(b)(i), the income tax return of a person in respect of a particular income year (the
base year
) must be lodged before the end of:
(a)
the first income year after the base year; or
(b)
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.
History
S 109E(3A) amended by No 46 of 2016, s 3 and Sch 2 item 19, by omitting "paragraph (3)(a) or" after "purposes of", applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
S 109E(3A) inserted by No 14 of 2014, s 3 and Sch 12 item 25, applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
109E(3B)
The further period under paragraph (3A)(b) must end no later than the end of the second income year after the base year.
History
S 109E(3B) inserted by No 14 of 2014, s 3 and Sch 12 item 25, applicable in relation to an income year referred to in paragraph 107(3)(d), 109D(4)(a) or 109E(3)(a) or subparagraph 109D(4)(b)(i) or 109E(3)(b)(i) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2013-14 income year or a later income year.
109E(4)
In subsection (3), a reference to a relevant person, in relation to the person first-mentioned in that subsection, is a reference:
(a)
so far as paragraph (3)(b) is concerned - to any person (including the first-mentioned person) whose taxable income is relevant in determining the first-mentioned person's eligibility for, or rate of, family tax benefit; and
(b)
so far as paragraph (3)(c) is concerned - to any person (including the first-mentioned person) whose entitlement to child support is relevant in determining the first-mentioned person's rate of family tax benefit.
History
S 109E(4) amended by No 46 of 2016, s 3 and Sch 2 item 20, by substituting "paragraph (3)(b)" for "paragraph (3)(a) or (b)" in para (a), applicable in relation to a review decision made on or after 6 May 2016, where the original decision related to the payment of family tax benefit by instalment for a same-rate benefit period that consists of, or is included in, the income year in which this Schedule commences or in a later income year.
History
S 109E inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 109EA
109EA
Date of effect of certain decisions made under section 109A in relation to eligibility for CCS
Section 107A applies to a review under section 109A of a child care decision in relation to section 67CC as if:
(a)
the reference to section 105 were a reference to section 109A; and
(b)
the reference to the income year in which the review decision was made were a reference to the income year in which the application for review was made.
Note:
Section 107A provides for the date of effect of a decision to vary, or set aside and substitute a new decision for, a child care decision in relation to section 67CC.
History
S 109EA inserted by No 22 of 2017, s 3 and Sch 1 item 152, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 109F
Withdrawal of review applications
109F(1)
An applicant for review under section 109A may, in writing or in any other manner approved by the Secretary, withdraw the application at any time before the decision reviewer does any of the things in subsection 109A(2).
109F(2)
If an application is so withdrawn, it is taken never to have been made.
History
S 109F inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 109G
Secretary may continue payment etc. pending outcome of application for review
109G(1)
If:
(a)
an adverse family assistance decision is made; and
(b)
the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and
(c)
a person applies under section 109A for review of the adverse decision;
the Secretary may declare that entitlement to the family assistance to which the adverse family assistance decision relates is to continue, pending the determination of the review, as if the adverse decision had not been made.
History
S 109G(1) amended by No 22 of 2017, s 3 and Sch 1 item 153, by omitting "referred to in paragraph (a) or (b) of the definition of
adverse family assistance decision
in subsection (5)" after "an adverse family assistance decision" from para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 109G(1) amended by No 65 of 2010, s 3 and Sch 2 item 32, by omitting "to the Secretary" after "a person applies" in para (c), effective 1 July 2010.
109G(2)
(Repealed by No 22 of 2017)
History
S 109G(2) repealed by No 22 of 2017, s 3 and Sch 1 item 154, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 109G(2) formerly read:
109G(2)
If:
(a)
an adverse family assistance decision referred to in paragraph (c), (d) or (e) of the definition of
adverse family assistance decision
in subsection (5) is made; and
(b)
the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and
(c)
a person applies under section 109A for review of the adverse decision;
the Secretary may declare:
(d)
in the case of an
adverse family assistance decision
referred to in paragraph (c) of the definition - that the conditional eligibility to which the decision relates is to continue as if the adverse decision had not been made;
(e)
in the case of an adverse family assistance decision referred to in paragraph (d) - that the limit or percentage to which the decision relates is to continue as if the adverse decision had not been made; and
(f)
in the case of an adverse family assistance decision referred to in paragraph (e) of the definition - that the eligibility for the special grandparent rate to which the decision relates is to continue as if the adverse decision had not been made.
S 109G(2) amended by No 65 of 2010, s 3 and Sch 2 item 32, by omitting "to the Secretary" after "a person applies" in para (c), effective 1 July 2010.
S 109G(2) amended by No 108 of 2006, s 3 and Sch 2 item 2, by inserting "and" at the end of para (e), effective 27 September 2006.
S 109G(2) amended by No 132 of 2004, s 3 and Sch 4 items 30 and 31, by substituting ``, (d) or (e)'' for ``or (d)'' in para (a) and inserting para (f) at the end, applicable to sessions of care provided in a week that commences after 1 January 2005.
109G(3)
While the declaration is in force in relation to the adverse decision, this Act (other than this Part) applies as if the adverse decision had not been made.
109G(4)
The declaration:
(a)
starts to have effect on the day on which it is made or on the earlier day (if any) specified in the declaration; and
(b)
stops having effect if:
(i)
the application for review of the adverse decision is withdrawn; or
(ii)
the review of the adverse decision is determined by the Secretary or an authorised review officer; or
(iii)
the declaration is revoked by the Secretary.
109G(5)
In this section:
adverse family assistance decision
, in relation to a person, means any decision having the effect that:
(a)
the person ceases to be entitled to family assistance; or
(b)
the person's entitlement to family assistance is reduced.
(c)-(e)
(Repealed by No 22 of 2017)
History
S 109G(5) amended by No 22 of 2017, s 3 and Sch 1 items 155 and 156, by substituting "reduced." for "reduced; or" in para (b) and repealing para (c) to (e) in the definition of "adverse family assistance decision", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (c) to (e) in the definition of "adverse family assistance decision" formerly read:
(c)
the person ceases to be conditionally eligible for child care benefit by fee reduction; or
(d)
the weekly limit of hours, the CCB % or the schooling % applicable to the person is reduced; or
(e)
the person ceases to be eligible for the special grandparent rate for a child.
S 109G(5) amended by No 132 of 2004, s 3 and Sch 4 item 32, by inserting para (e) at the end, applicable to sessions of care provided in a week that commences after 1 January 2005.
S 109G inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 109H
Notification of further rights of review
109H(1)
If the decision reviewer gives an applicant a notice under section 109B, the notice must include:
(a)
a statement to the effect that the applicant may, subject to this Part and the AAT Act, apply to the AAT for review of the review decision mentioned in the notice; and
(b)
a statement about the review decision that:
(i)
sets out the reasons for the decision; and
(ii)
sets out the findings by the decision reviewer on material questions of fact; and
(iii)
refers to the evidence or other material on which those findings were based.
(c)
(Repealed by No 60 of 2015)
[
CCH Note:
S 109H(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART Act, apply to the ART" for "AAT Act, apply to the AAT" in para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 109H(1) amended by No 60 of 2015, s 3 and Sch 5 items 11-13, by substituting "subject to this Part and the AAT Act, apply to the AAT" for "subject to this Part, apply to the SSAT" in para (a), "based." for "based; and" in para (b)(iii) and repealing para (c), effective 1 July 2015. Para (c) formerly read:
(c)a statement to the effect that, if the applicant is dissatisfied with the SSAT's decision on any application for review as mentioned in paragraph (a), the applicant may, subject to the Administrative Appeals Tribunal Act 1975, apply to the AAT for review of the SSAT's decision.
109H(2)
A contravention of subsection (1) in relation to a review decision does not affect the validity of the decision.
History
S 109H inserted by No 45 of 2000, s 3 Sch 2 item 103, effective 1 July 2000. For transitional provisions see note under s 69.
Division 2 - Review by Administrative Appeals Tribunal
[
CCH Note:
Div 2 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "Administrative Appeals Tribunal", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Div 2 heading substituted by No 60 of 2015, s 3 and Sch 5 item 14, effective 1 July 2015. The heading formerly read:
Division 2 - Review by the Social Security Appeals Tribunal
Subdivision A - Simplified outline of this Division
History
Subdiv A heading inserted by No 60 of 2015, s 3 and Sch 5 item 15, effective 1 July 2015.
SECTION 110
110
Simplified outline of this Division
If a person is dissatisfied with a decision of a decision reviewer under Subdivision B of Division 1, the person may apply to the AAT for review of the decision (an "AAT first review") (certain decisions are excepted).
If a person is dissatisfied with a decision of the AAT on AAT first review, the person may apply to the AAT for further review (an "AAT second review").
Certain decisions may only be reviewed once by the AAT (an "AAT single review").
The rules relating to reviews by the AAT are mainly in the AAT Act, but the operation of that Act is modified in some ways by this Division.
The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT on AAT second review or AAT single review.
[
CCH Note:
S 110 will be amended by No 38 of 2024, s 3 and Sch 3 items 13-17, by substituting "ART for review of the decision (an "ART review")" for "AAT for review of the decision (an "AAT first review")", para beginning "If a person is dissatisfied with a decision of the AAT", repealing para beginning "Certain decisions", substituting "ART" for "AAT" (wherever occurring) in para beginning "The rules", and substituting para beginning "The AAT Act"), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. Para beginning "If a person is dissatisfied with a decision of the AAT" and "The AAT Act" will read:
If a decision has been reviewed by the ART, in some circumstances the ART Act allows a person to apply to refer the matter to the ART as constituted by the guidance and appeals panel for further review.
In other circumstances, application may be made for review (a "second review") of the decision by the ART on ART review. Applications for second review are made under the ART Act.
The ART Act allows a person to appeal to the Federal Court on a question of law from a decision of the ART.
]
History
S 110 amended by No 125 of 2019, s 3 and Sch 1 item 53, by substituting "If a person is dissatisfied with a decision of a decision reviewer under Subdivision B of Division 1, the person may apply to the AAT for review of the decision (an "AAT first review") (certain decisions are excepted)." for "If a person is dissatisfied with a decision of a decision reviewer under Division 1, the person may apply to the AAT for review of the decision (an "AAT first review") (certain decisions are excepted).", effective 16 December 2019.
S 110 substituted by No 60 of 2015, s 3 and Sch 5 item 15, effective 1 July 2015. S 110 formerly read:
SECTION 110 SSAT objective
110(1)
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.
History
S 110(1) renumbered from s 110 by No 154 of 2012, s 3 and Sch 3 item 4, by inserting "(1)" before "In", effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
110(2)
That objective must also be pursued by the Principal Member in performing or exercising his or her functions and powers under this Act.
History
S 110(2) inserted by No 154 of 2012, s 3 and Sch 3 item 5, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
Subdivision B - Application for AAT first review
[
CCH Note:
Subdiv B heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Subdiv B heading inserted by No 60 of 2015, s 3 and Sch 5 item 15, effective 1 July 2015.
SECTION 111
Application for AAT first review
[
CCH Note:
S 111 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
111(1)
If the decision reviewer has affirmed, varied or set aside a decision under Subdivision B of Division 1, application may be made to the AAT for review (
AAT first review
) of the decision as affirmed or varied or, if it has been set aside and another decision substituted, the decision so substituted.
[
CCH Note:
S 111(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 18, by substituting "ART for review (
ART review
)" for "AAT for review (
AAT first review
)", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111(1) amended by No 125 of 2019, s 3 and Sch 1 item 54, by inserting "Subdivision B of", effective 16 December 2019.
S 111(1) amended by No 22 of 2017, s 3 and Sch 1 item 157, by repealing the note, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. The note formerly read:
Note:
If an application is made for review of a decision about a person's entitlement to child care benefit, and a decision has also been made about the person's entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.
S 111(1) amended by No 60 of 2015, s 3 and Sch 5 items 17 and 18, by substituting "application may be made to the AAT for review (
AAT first review
)" for "a person affected by the decision may apply to the Social Security Appeals Tribunal for review" and omitting "under this section" after "application is made" from the note, effective 1 July 2015.
S 111(1) amended by No 50 of 2009, s 3 and Sch 2 item 16, by substituting the note, applicable in relation to each application made on or after 24 June 2009:
(a) under section 109A, 111 or 142 of the A New Tax System (Family Assistance) (Administration) Act 1999; and
(b) for review of a decision relating to an individual's entitlement to child care benefit.
The note formerly read:
Note:
If an application is made for review of a decision relating to a person's child care benefit entitlement for an income year under this section and the review affects the person's entitlement to child care tax rebate for the year, the person's entitlement to that rebate is automatically reviewed: see Division 5.
S 111(1) amended by No 53 of 2008, s 3 and Sch 5 item 14, by inserting the note at the end, applicable to decisions made after 25 June 2008.
111(1A)
If a decision has been made by:
(a)
the Secretary personally; or
(b)
another agency head himself or herself in the exercise of a delegated power; or
(c)
the Chief Executive Centrelink in the exercise of a delegated power; or
(d)
the Chief Executive Medicare in the exercise of a delegated power;
application may be made to the AAT for review (also
AAT first review
) of the decision.
[
CCH Note:
S 111(1A) will be amended by No 38 of 2024, s 3 and Sch 3 item 19, by substituting "ART for review (also
ART review
)" for "AAT for review (also
AAT first review
)", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111(1A) amended by No 22 of 2017, s 3 and Sch 1 item 158, by omitting "(except a decision under Division 2 of Part 8C (infringement notices))" after "the Secretary personally" from para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 111(1A) amended by No 60 of 2015, s 3 and Sch 5 item 19, by substituting "application may be made to the AAT for review (also
AAT first review
)" for "a person whose interests are affected by the decision may apply to the SSAT for review", effective 1 July 2015.
S 111(1A) substituted by No 32 of 2011, s 3 and Sch 4 item 31, effective 1 July 2011. For transitional provisions see note under s 108(2). S 111(1A) formerly read:
111(1A)
If a decision has been made by the Secretary personally (except a decision under Division 2 of Part 8C (infringement notices)), or by another agency head himself or herself in the exercise of a delegated power, a person whose interests are affected by the decision may apply to the SSAT for review of the decision.
S 111(1A) amended by No 118 of 2007, s 3 and Sch 2 item 4, by inserting "(except a decision under Division 2 of Part 8C (infringement notices))" after "personally", effective 1 July 2007.
S 111(1A) inserted by No 45 of 2000. For transitional provisions see note under s 69.
111(1B)
(Repealed by No 146 of 2006)
History
S 111(1B) repealed by No 146 of 2006, s 3 and Sch 5 item 84, effective 1 July 2008. S 111(1B) formerly read:
111(1B)
If a decision is made under subsection 91A(3) of the Child Support (Assessment) Act 1989 about a particular agreement, then, for the purposes of the application of subsection (1) or (1A) of this section to the decision, both of the parties to the agreement are taken to be persons whose interests are affected by the decision.
111(2)
However, a person cannot apply for review under subsection (1) or (1A) in respect of any of the following decisions:
(a)
a decision about the form or manner in which an application or claim is to be made or a notice given;
(b)
a decision about the kind of information or documents required to be given in or to accompany an application, claim or notice;
(c)
a decision under section 109G or 113 (continuation of payment etc. pending review of adverse decision);
(d)
a decision under Division 1 of Part 6 or section 203A (Secretary requiring or requesting information from person);
(da)
a decision under section 67FE, 67FG, 67FH or 67FI (Secretary requesting information in relation to CCS or ACCS) or subsection 204A(6) (Secretary requesting further information about a child care service stopping operations);
(e)
a decision relating to the Secretary's power under section 137 or 141 to settle proceedings before the AAT;
(f)
a child care provider decision;
(fa)
(Repealed by No 22 of 2017)
(g)
a decision under section 203C (engaging expert for independent audit);
(h)
a decision under section 204D (information about number of child care places).
(i)
(Repealed by No 22 of 2017)
[
CCH Note:
S 111(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" in para (e), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111(2) amended by No 26 of 2021, s 3 and Sch 1 item 22, by substituting para (f), applicable in relation to decisions made on or after 27 March 2021. For application provisions, see note under s 205C. Para (f) formerly read:
(f)
a decision under Part 8 (approved providers);
S 111(2) amended by No 125 of 2019, s 3 and Sch 1 items 55-57, by substituting "section 109G" for "section 108" in para (c), "section 203A" for "section 219GA" in para (d) and omitting "67FF," after "67FE," from para (da), effective 16 December 2019.
S 111(2) amended by No 26 of 2018, s 3 and Sch 17 item 1, by substituting "Division 1 of Part 6 or section" for "section 154, 155, 156, 157, 157A, 159A or" in para (d), effective 2 July 2018.
S 111(2) amended by No 22 of 2017, s 3 and Sch 1 items 159-162, by substituting para (a) and (b) for para (a), inserting "157A," after "157," in para (d), inserting para (da) and substituting para (f) to (h) for para (f) to (i), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (a), (f) to (i) formerly read:
(a)
a decision under one of the following provisions (form and manner of claims, notices etc):
(i)
subsection 7(2);
(ia)
subsection 34(1);
(ib)
subsection 35B(2);
(ii)
subsection 38(2);
(iii)
subsection 49C(1);
(iv)
paragraph 50L(7)(b);
(v)
subparagraph 50T(2)(a)(ii);
(vi)
subsection 50T(3)(b);
(vii)
subsection 50Z(4), 50ZA(4), 50ZB(4), 50ZC(4);
(viii)
subsection 57G(3) or 57G(5);
(ix)
section 64F;
(ixa)
paragraph 65EAAAA(2)(a);
(ixb)
subsection 65EAAB(3) or 65EAAE(4);
(ixc)
subsection 65KA(2);
(x)
paragraph 219AB(1)(a);
(xi)
subsection 219AE(4);
(xii)
subsection 219AF(2);
(xiii)
subsection 219N(3);
(xiv)
paragraph 219QB(4)(a);
(xiva)
subsection 219QE(3);
(xivb)
paragraph 219QE(5)(a);
(xv)
paragraph 219R(2)(a);
(xva)
paragraph 219RA(1A)(b), (1B)(b) or (1C)(b);
(xvi)
subsection 219RA(4);
(xvia)
paragraph 219RC(3)(d);
(xvii)
subsection 57(6) or 81(5) of the Family Assistance Act;
(xviii)
subclause 46(2), 47(2), 49(3) or 50(2) of Schedule 1 to the Family Assistance Act;
(f)
a decision under Part 8 (approval of child care services and approval of registered carers);
(fa)
a decision under section 219GB (Secretary engaging an expert to carry out an independent audit);
(g)
a decision under section 219NA (Secretary requiring service to provide information about number of child care places);
(h)
a decision to make a determination under subsection 57(1) of the Family Assistance Act (determination that an approved child care service is a sole provider);
(i)
a decision under section 57G (Secretary requiring service to provide further information about aspects of care provided to enrolled children).
S 111(2) amended by No 60 of 2015, s 3 and Sch 5 items 20 and 21, by substituting "113" for "112" in para (c) and "section 137 or 141" for "section 146" in para (e), effective 1 July 2015.
S 111(2) amended by No 141 of 2011, s 3 and Sch 8 item 14, by inserting para (a)(ixc), applicable in relation to the 2012-13 income year and later income years.
S 111(2) amended by No 120 of 2011, s 3 and Sch 1 items 8 and 9, by substituting ", 159A or 219GA" for "or 159GA" in para (d) and insering para (fa), effective 15 October 2011. For application provision see note under s 3(4B).
S 111(2) amended by No 79 of 2011, s 3 and Sch 5 items 6 and 7, by substituting "50ZA(4)" for "50ZA(3)" and "50ZC(4)" for "50ZC(3)" in para (a)(vii), effective 26 July 2011.
S 111(2) amended by No 79 of 2011, s 3 and Sch 1 items 20 and 21, by inserting paras (a)(xvia) and (a)(xvia), effective 26 July 2011.
S 111(2) amended by No 53 of 2011, s 3 and Sch 1 items 15 and 16, by inserting paras (a)(ia), (a)(ib) and (a)(xviii), applicable to family tax benefit advances requested on or after 1 July 2011. For transitional provision, see note under Pt 3 Div 2 heading.
S 111(2) amended by No 25 of 2011, s 3 and Sch 1 items 42 to 44, by substituting "57G(3) or 57G(5)" for "57G(2)" in para (a)(viii) and inserting paras (a)(ixa), (a)(ixb), (a)(xiva) and (a)(xivb), applicable in relation to income years beginningon or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 111(2) amended by No 65 of 2010, s 3 and Sch 2 item 33, by substituting ", 157 or 159A (Secretary requiring or requesting" for "or 157 (Secretary requiring" in para (d), effective 1 July 2010.
S 111(2) amended by No 118 of 2007, s 3 and Sch 3 items 8 and 9, by inserting "or (1A)" after "apply for review under subsection (1)" and inserting para (h), applicable in relation to decisions made after 29 June 2007.
S 111(2) amended by No 118 of 2007, s 3 and Sch 1 items 59 and 60, by substituting para (a) and inserting para (i), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (a) formerly read:
(a)
a decision under subsection 7(2), 38(2) or 49C(1), or paragraph 50L(7)(b), or subparagraph 50T(2)(a)(ii), or paragraph 50T(3)(b), or section 64F or paragraph 219N(2)(b) of this Act or subsection 57(6) or 81(5) of the Family Assistance Act (form and manner of claim etc.);
S 111(2) amended by No 36 of 2006, s 3 and Sch 5 item 1, by inserting para (g) at the end, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 4 May 2006.
S 111(2) amended by No 132 of 2004, s 3 and Sch 4 item 33, by inserting "or subparagraph 50T(2)(a)(ii), or paragraph 50T(3)(b)," after "paragraph 59L(7)(b)," in para (a), applicable to sessions of care provided in a week that commences after 1 January 2005.
S 111(2) amended by No 45 of 2000 For transitional provisions see note under s 69.
111(2A)
A child care decision about an individual's entitlement to be paid CCS for a week, to the extent the child care decision is based on:
(a)
the individual's adjusted taxable income for the income year (the
relevant income year
) in which the CCS fortnight that includes the week starts; or
(b)
the individual's activity test result for the CCS fortnight that includes the week;
is not to be reviewed on AAT first review unless the individual has met the CCS reconciliation conditions for the relevant income year.
[
CCH Note:
S 111(2A) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111(2A) inserted by No 22 of 2017, s 3 and Sch 1 item 163, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
111(2B)
(Repealed by No 125 of 2019)
History
S 111(2B) repealed by No 125 of 2019, s 3 and Sch 1 item 58, effective 16 December 2019. S 111(2B) formerly read:
111(2B)
A child care decision made because of subsection 105E(2) is not to be reviewed on AAT first review unless the individual has met the CCS reconciliation conditions for the relevant income year.
S 111(2B) inserted by No 22 of 2017, s 3 and Sch 1 item 163, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
111(3)
In this section:
decision reviewer
means a person who, in accordance with subsection 109A(2), reviewed a decision that was the subject of an application under section 109A.
History
S 111(3) substituted by No 125 of 2019, s 3 and Sch 1 item 59, effective 16 December 2019. S 111(3) formerly read:
111(3)
In this section:
decision reviewer
, in relation to a decision that was the subject of an application under section 109A, means the person who, in accordance with subsection 109A(2), reviewed that decision.
History
Definition of "decision reviewer" amended by No 65 of 2010, s 3 and Sch 2 item 34, by substituting "section 109A" for "subsection 109A(1)", effective 1 July 2010.
S 111(3) inserted by No 45 of 2000. For transitional provisions see note under s 69.
SECTION 111A
Time limit for application for AAT first review
[
CCH Note:
S 111A heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
13 week time limit for most kinds of decision
111A(1)
Subject to subsections (2) and (2A), an application for AAT first review of a decision, other than a decision covered by subsection (3A) or excepted under subsection (5), must be made no later than 13 weeks after the person is notified of the decision.
[
CCH Note:
S 111A(1) will be amended by No 38 of 2024, s 3 and Sch 3 items 22 and 23, by substituting "90 day" for "13 week" in the heading and "90 days" for "13 weeks", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
[
CCH Note:
S 111A(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111A(1) amended by No 125 of 2019, s 3 and Sch 2 item 6, by inserting "covered by subsection (3A) or", applicable in relation to a decision made under Division 2 of Part 4 relating to CCS or ACCS on or after 13 December 2019.
S 111A(1) amended by No 22 of 2017, s 3 and Sch 1 item 165, by substituting "subsections (2) and (2A)" for "subsection (2)", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
111A(2)
The AAT may, if it determines that there are special circumstances that prevented the person from making an application for AAT first review of a decision of the kind referred to in subsection (1) within the 13 weeks mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the AAT determines to be appropriate.
[
CCH Note:
S 111A(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 23, by substituting "90 days" for "13 weeks", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
[
CCH Note:
S 111A(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "The ART" for "The AAT", "ART review" for "AAT first review" and "the ART" for "the AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
111A(2A)
An application for AAT first review of a child care decision about an individual's entitlement to be paid CCS for a week, other than a decision excepted under subsection (5), may also be made after the 13 weeks mentioned in subsection (1) if the application for review is made:
(a)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week starts; and
(b)
within 13 weeks after the individual or other person was notified by the Commissioner of the outcome of the review.
[
CCH Note:
S 111A(2A) will be amended by No 38 of 2024, s 3 and Sch 3 item 23, by substituting "90 days" for "13 weeks" (wherever occurring), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
[
CCH Note:
S 111A(2A) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111A(2A) inserted by No 22 of 2017, s 3 and Sch 1 item 166, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
111A(3)
Subsections (1), (2) and (2A) apply despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act.
[
CCH Note:
S 111A(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "sections 18 and 19 of the ART Act (which deal with when applications for review may be made)" for "paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111A(3) amended by No 22 of 2017, s 3 and Sch 1 item 167, by substituting "Subsections (1), (2) and (2A)" for "Subsections (1) and (2)", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
52 week time limit for certain provider debt decisions
111A(3A)
An application by a provider for AAT first review in respect of a decision under Division 2 of Part 4 relating to CCS or ACCS must be made no later than:
(a)
52 weeks after the provider is notified of the decision; or
(b)
if the provider was not notified of the decision - 52 weeks after the provider becomes aware of the decision.
[
CCH Note:
S 111A(3A) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111A(3A) inserted by No 125 of 2019, s 3 and Sch 2 item 7, applicable in relation to a decision made under Division 2 of Part 4 relating to CCS or ACCS on or after 13 December 2019.
111A(3B)
Subsection (3A) applies despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act.
[
CCH Note:
S 111A(3B) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "sections 18 and 19 of the ART Act (which deal with when applications for review may be made)" for "paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111A(3B) inserted by No 125 of 2019, s 3 and Sch 2 item 7, applicable in relation to a decision made under Division 2 of Part 4 relating to CCS or ACCS on or after 13 December 2019.
No time limit for excepted decisions
111A(4)
Paragraph 29(1)(d) of the AAT Act does not apply in relation to an application for AAT first review of a decision that is excepted under subsection (5).
[
CCH Note: S 111A(4) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "Section 18 (when to apply for review) of the ART Act does not apply in relation to an application for ART review" for "Paragraph 29(1)(d) of the AAT Act does not apply in relation to an application for AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
Excepted decisions
111A(5)
A decision is excepted under this subsection if the decision:
(a)
relates to the payment to a person of family tax benefit by instalment; or
(b)
relates to the raising of a debt under Division 2 of Part 4 (other than a decision referred to in subsection (3A)).
History
S 111A(5) amended by No 125 of 2019, s 3 and Sch 2 item 8, by inserting "(other than a decision referred to in subsection (3A))" in para (b), applicable in relation to a decision made under Division 2 of Part 4 relating to CCS or ACCS on or after 13 December 2019.
History
S 111A substituted by No 60 of 2015, s 3 and Sch 5 item 22, effective 1 July 2015. S 111A formerly read:
SECTION 111A Review applications - time limits applicable to review by the SSAT of certain decisions
111A(1)
Subject to subsection (2), a person affected:
(a)
by a decision of a decision reviewer under Division 1 to affirm, vary or set aside a decision other than an excepted decision; or
(b)
if a decision reviewer has decided, under Division 1, to set aside a decision (other than an excepted decision) and substitute another decision - by the decision so substituted;
must apply under section 111 for review by the SSAT of the decision affecting that person no later than 13 weeks after the person is notified of the decision of the decision reviewer.
111A(2)
The SSAT may, if it determines that there are special circumstances that prevented the person from making an application under section 111 for review of a decision of the kind referred to in subsection (1) within the 13 weeks mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the SSAT determines to be appropriate.
111A(3)
In this section:
excepted decision
means a decision:
(a)
relating to the payment to a person of family tax benefit by instalment; or
(b)
relating to the raising of a debt under Division 2 of Part 4.
S 111A inserted by No 45 of 2000, s 3 Sch 2 item 109, effective 1 July 2000. For transitional provisions see note under s 69.
Subdivision C - Other matters relating to AAT first review
[
CCH Note:
Subdiv C heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Subdiv C heading inserted by No 60 of 2015, s 3 and Sch 5 item 22, effective 1 July 2015.
SECTION 111B
111B
Person who made the decision
For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to the Secretary.
[
CCH Note:
S 111B will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review of a decision, a reference in the ART Act to the decision-maker for" for "AAT first review of a decision, a reference in the AAT Act to the person who made", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 111B substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. S 111B formerly read:
SECTION 111B Date of effect of certain SSAT decisions relating to payment of family tax benefit by instalment
111B(1)
If:
(a)
a person applies to the SSAT, under subsection 111(1), for review of a decision (the
original decision
) relating to the payment to a person of family tax benefit by instalment; and
(b)
the application is made more than 13 weeks after the person was given notice of the original decision; and
(c)
the SSAT decides, under subsection 113(1), to vary the original decision or set aside the original decision and substitute a new decision; and
(d)
the decision of the SSAT will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;
the date of effect of the decision of the SSAT is:
(e)
unless paragraph (f) applies - the date that would give full effect to the decision of the SSAT; or
(f)
if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the application to the SSAT for review was made - that first day.
111B(2)
The SSAT may, if it is satisfied that there are special circumstances that prevented the applicant from making an application within 13 weeks, determine that subsection (1) applies as if the reference to 13 weeks were a reference to such longer period as the SSAT determines to be appropriate.
S 111B inserted by No 45 of 2000, s 3 Sch 2 item 109, effective 1 July 2000. For transitional provisions see note under s 69.
[
CCH Note:
S 111C will be inserted by No 38 of 2024, s 3 and Sch 3 item 24, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 111C will read:
SECTION 111C Decision-maker taken to have elected not to participate in ART review proceeding
111C
For the purposes of ART review of a decision, the decision-maker for the decision is taken to have given the ART an election notice (within the meaning of the ART Act) in relation to a kind of proceeding that is a proceeding for ART review of the decision.
]
SECTION 112
112
Operation and implementation of decision under AAT first review
Subsection 41(2) of the AAT Act does not apply in relation to an application for AAT first review.
[
CCH Note:
S 112 will be substituted by No 38 of 2024, s 3 and Sch 3 item 25, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 112 will read:
SECTION 112 Operation and implementation of decision under ART review
112
Subsection 32(2) (ART may stay operation or implementation) of the ART Act does not apply in relation to a proceeding for ART review.
]
History
S 112 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. No 60 of 2015, s 3 and Sch 9 item 15BQ contains the following transitional and saving provision:
15BQ Continuation of payment declarations
(1)
If, immediately before the commencement day, a declaration under section 112 of theA New Tax System (Family Assistance) (Administration) Act 1999 was in effect in connection with a person's application for review of a decision, the declaration continues in effect on and after the commencement day, as if the declaration had been made:
(a)
under section 113 of that Act as amended by this Act; and
(b)
in connection with the application as continued in the AAT by item 15AB of this Schedule.
…
S 112 formerly read:
SECTION 112 Secretary may continue payment etc. pending outcome of application for review
112(1)
If:
(a)
an adverse family assistance decision referred to in paragraph (a) or (b) of the definition of
adverse family assistance decision
in subsection (4) is made; and
(b)
the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and
(c)
a person applies to the SSAT under section 111 for review of the adverse decision;
the Secretary may declare that entitlement to the family assistance is to continue, pending the determination of the review, as if the adverse decision had not been made.
History
S 112(1) amended by No 45 of 2000, s 3 Sch 2 item 110, by substituting "referred to in paragraph (a) or (b) of the definition of
adverse family assistance decision
in subsection (4)" for "(see subsection (4))" in para (a), effective 1 July 2000. For transitional provisions see note under s 69.
112(1A)
If:
(a)
an adverse family assistance decision referred to in paragraph (c), (d) or (e) of the definition of
adverse family assistance decision
in subsection (4) is made; and
(b)
the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and
(c)
a person applies to the SSAT under section 111 for review of the adverse decision;
the Secretary may declare:
(d)
in the case of an adverse family assistance decision referred to in paragraph (c) of the definition in subsection (4) - that the conditional eligibility to which the decision relates is to continue as if the adverse decision had not been made; and
(e)
in the case of an adverse family assistance decision referred to in paragraph (d) of the definition in subsection (4) - that the limit or percentage to which the decision relates is to continue as if the adverse decision had not been made; and
(f)
in the case of an adverse family assistance decision referred to in paragraph (e) of the definition in subsection (4) - that the eligibility for the special grandparent rate to which the decision relates is to continue as if the adverse decision had not been made.
History
S 112(1A) amended by No 132 of 2004, s 3 and Sch 4 items 34 and 35, by substituting ", (d) or (e)" for "or (d)" in para (a) and inserting para (f), applicable to sessions of care provided in a week that commences after 1 January 2005.
S 112(1A) inserted by No 45 of 2000, s 3 Sch 2 item 111, effective 1 July 2000. For transitional provisions see note under s 69.
112(2)
While the declaration is in force in relation to the adverse decision, this Act (other than this Part) applies as if the adverse decision had not been made.
112(3)
The declaration:
(a)
starts to have effect on the day on which it is made or on the earlier day (if any) specified in the declaration; and
(b)
stops having effect if:
(i)
the application to the SSAT for review of the adverse decision is dismissed; or
(ii)
the review of the adverse decision is determined by the SSAT; or
(iii)
the declaration is revoked by the Secretary.
History
S 112(3) amended by No 154 of 2012, s 3 and Sch 3 item 6, by substituting "dismissed" for "withdrawn", effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
112(4)
In this section:
adverse family assistance decision
, in relation to a person, means any decision having the effect that:
(a)
the person ceases to be entitled to family assistance; or
(b)
the person's entitlement to family assistance is reduced; or
(c)
the person ceases to be conditionally eligible for child care benefit by fee reduction; or
(d)
the weekly limit of hours, the CCB % or the schooling % applicable to the person is reduced; or
(e)
the person ceases to be eligible for the special grandparents rate for a child.
History
S 112(4) amended by No 132 of 2004, s 3 and Sch 4 item 36, by inserting para (e) at the end, applicable to sessions of care provided in a week that commences after 1 January 2005.
S 112(4) substituted by No 45 of 2000, s 3 Sch 2 item 112, effective 1 July 2000. For transitional provisions see note under s 69. S 112(4) formerly read:
112(4)
In this section:
adverse family assistance decision
means any decision having the effect that an entitlement to family assistance under a determination is reduced or ceases.
[
CCH Note:
S 112A to 112C will be inserted by No 38 of 2024, s 3 and Sch 3 item 25, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 112A to 112C will read:
SECTION 112A Remitting decisions for reconsideration
112A
Section 85 (ART may remit decision to decision-maker for reconsideration) of the ART Act does not apply in relation to a proceeding for ART review.
SECTION 112B Requesting reasons for decision
112B
Section 268 (requesting reasons for reviewable decision from decision-maker) of the ART Act does not apply in relation to a decision for which an application for ART review may be made.
SECTION 112C Legal or financial assistance
112C(1)
Subsection 294(1) (legal or financial assistance for applicants) of the ART Act does not apply in relation to:
(a)
a person who proposes to apply to the ART for ART review; or
(b)
a person who applies to the ART for ART review, unless the proceeding in relation to the application is a guidance and appeals panel proceeding.
112C(2)
Subsection 294(3) (legal or financial assistance for other parties) of the ART Act does not apply in relation to a proceeding for ART review unless the proceeding is a guidance and appeals panel proceeding.
112C(3)
Subsection 294(4) (legal or financial assistance for court proceedings) of the ART Act does not apply in relation to a matter that relates to a proceeding for ART review unless the proceeding is a guidance and appeals panel proceeding.
]
SECTION 113
Secretary may continue certain matters pending outcome of application for AAT first review
[
CCH Note:
S 113 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
113(1)
If:
(a)
an adverse family assistance decision is made; and
(b)
the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and
(c)
a person makes an application for AAT first review of the adverse decision;
the Secretary may declare that entitlement to the family assistance is to continue, pending the determination of the review, as if the adverse decision had not been made.
[
CCH Note:
S 113(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review" in para (c), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 113(1) amended by No 22 of 2017, s 3 and Sch 1 item 168, by omitting "referred to in paragraph (a) or (b) of the definition of
adverse family assistance decision
in subsection (5)" after "an adverse family assistance decision" from para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
113(2)
(Repealed by No 22 of 2017)
History
S 113(2) repealed by No 22 of 2017, s 3 and Sch 1 item 169, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 113(2) formerly read:
113(2)
If:
(a)
an adverse family assistance decision referred to in paragraph (c), (d) or (e) of the definition of
adverse family assistance decision
in subsection (5) is made; and
(b)
the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and
(c)
a person makes an application for AAT first review of the adverse decision;
the Secretary may declare:
(d)
in the case of an adverse family assistance decision referred to in paragraph (c) of the definition in subsection (5) - that the conditional eligibility to which the decision relates is to continue as if the adverse decision had not been made; and
(e)
in the case of an adverse family assistance decision referred to in paragraph (d) of the definition in subsection (5) - that the limit or percentage to which the decision relates is to continue as if the adverse decision had not been made; and
(f)
in the case of an adverse family assistance decision referred to in paragraph (e) of the definition in subsection (5) - that the eligibility for the special grandparent rate to which the decision relates is to continue as if the adverse decision had not been made.
113(3)
While the declaration is in force in relation to the adverse decision, this Act (other than this Part) applies as if the adverse decision had not been made.
113(4)
The declaration:
(a)
starts to have effect on the day it is made or on the earlier day (if any) specified in the declaration; and
(b)
stops having effect if:
(i)
the AAT dismisses the application for AAT first review of the adverse decision; or
(ii)
the AAT determines the AAT first review of the adverse decision; or
(iii)
the Secretary revokes the declaration.
[
CCH Note:
S 113(4) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "the ART dismisses the application for ART review" for "the AAT dismisses the application for AAT first review" in para (b)(i) and "the ART determines the ART review" for "the AAT determines the AAT first review" in para (b)(ii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
113(5)
In this section:
adverse family assistance decision
, in relation to a person, means any decision having the effect that:
(a)
the person ceases to be entitled to family assistance; or
(b)
the person's entitlement to family assistance is reduced.
(c)-(e)
(Repealed by No 22 of 2017)
History
S 113(5) amended by No 22 of 2017, s 3 and Sch 1 items 170 and 171, by substituting "reduced." for "reduced; or" in para (b) and repealing para (c) to (e) in the definition of "adverse family assistance decision", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (c) to (e) formerly read:
(c)
the person ceases to be conditionally eligible for child care benefit by fee reduction; or
(d)
the weekly limit of hours, the CCB % or the schooling % applicable to the person is reduced; or
(e)
the person ceases to be eligible for the special grandparent rate for a child.
S 113 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. No 60 of 2015, s 3 and Sch 9 item 15BQ contains the following transitional and saving provision:
15BQ Continuation of payment declarations
(1)
If, immediately before the commencement day, a declaration under section 112 of the A New Tax System (Family Assistance) (Administration) Act 1999 was in effect in connection with a person's application for review of a decision, the declaration continues in effect on and after the commencement day, as if the declaration had been made:
(a)
under section 113 of that Act as amended by this Act; and
(b)
in connection with the application as continued in the AAT by item 15AB of this Schedule.
…
S 113 formerly read:
SECTION 113 SSAT review powers
113(1)
If a person applies to the SSAT for review of a 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 the Secretary, for reconsideration in accordance with any directions or recommendations of the SSAT.
113(1A)
If:
(a)
the review involves (wholly or partly) a review of a decision (the
original decision
) that is a care percentage decision; and
(b)
a review of a decision carried out under Part VIIA of the Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) a review of the determination to which the care percentage decision relates;
the SSAT must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.
History
S 113(1A) inserted by No 65 of 2010, s 3 and Sch 2 item 35, effective 1 July 2010.
113(2)
If the SSAT sets a decision aside and substitutes for it a decision that:
(a)
a person is entitled to have a payment made under this Act; or
(b)
a person is conditionally eligible for child care benefit by fee reduction; or
(c)
the weekly limit of hours, the CCB % or the schooling % applicable to a person is to be increased;
the SSAT must:
(d)
in the case of paragraph (a):
(i)
assess the amount of the payment; or
(ii)
ask the Secretary to assess the amount; and
(e)
in the case of paragraph (b):
(i)
ask the Secretary to determine the weekly limit of hours, CCB % and schooling % applicable to the person; and
(ii)
if the limit or percentage affects the amount of the entitlement of the person - assess that amount; and
(f)
in the case of paragraph (c):
(i)
determine what the limit or percentage is to be; or
(ii)
ask the Secretary to assess the limit or percentage.
History
S 113(2) substituted by No 45 of 2000, s 3 Sch 2 item 113, effective 1 July 2000. For transitional provisions see note under s 69. S 113(2) formerly read:
113(2)
If the SSAT sets a decision aside and substitutes for it a decision that a person is entitled to have a payment made under this Act, the SSAT must:
(a)
assess the amount of the payment; or
(b)
ask the Secretary to assess the amount.
113(3)
If:
(a)
the SSAT sets a decision aside under subsection (1); and
(b)
the Secretary or the SSAT, as the case may be, is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary or the SSAT, as the case requires, may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
SECTION 114
114
Arrangements for AAT first review if section 113 declaration in force
[
CCH Note:
S 114 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
If a declaration under section 113 is in force in relation to a decision for which an application for AAT first review has been made, the President of the AAT must take reasonable steps to ensure that the decision is reviewed as quickly as possible.
[
CCH Note:
S 114 will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review has been made, the President of the ART" for "AAT first review has been made, the President of the AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 114 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. S 114 formerly read:
SECTION 114 Powers of the SSAT
114
The SSAT may, for the purpose of reviewing a decision under the family assistance law, exercise all the powers and discretions that are conferred by the family assistance law on the Secretary.
SECTION 115
Variation of original decision after application is made for AAT first review
[
CCH Note:
S 115 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
115(1)
If an officer varies or substitutes a decision after an application has been made for AAT first review of the decision, the application is taken to be an applicationfor AAT first review of the decision as varied or substituted.
[
CCH Note:
S 115(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review" (wherever occurring), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
115(2)
If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.
[
CCH Note:
S 115(2) will be substituted by No 38 of 2024, s 3 and Sch 3 item 26, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 115(2) will read:
115(2)
However, if the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 (decision cannot be altered outside Tribunal process) of that Act applies to the decision after the referral is made.
]
History
S 115 inserted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015.
Former s 115 repealed by No 45 of 2000, s 3 Sch 2 item 114. For transitional provisions see note under s 69. S 115 formerly read:
115 Date of effect of SSAT decisions
(1)
Subject to this section, a decision of the SSAT comes into operation immediately on the giving of the decision.
(2)
The SSAT may specify in a decision that the decision is not to come into operation until a later day specified in the decision and, if it does so, the decision comes into operation on that later day.
(3)
Subject to subsection (4) of this section and any regulations under subsection 235(4), if the SSAT:
(a)
varies a decision (the
original decision
) under review; or
(b)
sets aside a decision (also the
original decision
) under review and substitutes a new decision;
the decision as varied or the new decision, as the case may be, has effect, or is taken to have had effect, on and from the day on which the original decision has effect, or would have had effect, if the person who made the original decision had made the decision as varied or the new decision.
(4)
The SSAT may declare:
(a)
that subsection (3) does not apply to a decision by the SSAT on a review; and
(b)
that subsections (1) and (2) apply instead.
SECTION 116
Procedure on receipt of application for AAT first review
[
CCH Note:
S 116 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "certain ART reviews" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
116(1)
The AAT may, in relation to an application for AAT first review, request the Secretary to lodge with the AAT the statement and other documents referred to in subsection 37(1) of the AAT Act before the end of the period that otherwise applies under that subsection.
[
CCH Note:
S 116(1) will be substituted by No 38 of 2024, s 3 and Sch 3 item 27, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 116(1) will read:
116(1)
The ART may, in relation to an application for ART review, request the Secretary to lodge with the ART the statement and other documents referred to in section 23 (decision-maker must give ART reasons and documents - general rule) of the ART Act before the end of the period that otherwise applies.
]
116(2)
If the AAT does so, the Secretary must take reasonable steps to comply with the request.
[
CCH Note:
S 116(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
116(3)
Nothing in this section prevents the operation of subsection 37(1A) of the AAT Act.
[
CCH Note:
S 116(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "subsection 28(4) of the ART Act (which allows the ART to shorten the period for giving documents)" for "subsection 37(1A) of the AAT Act", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 116 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. S 116 formerly read:
SECTION 116 Application requirements
116(1)
A person may apply to the SSAT for review of a 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)
an office of another agency, where the Secretary has approved the office for the purposes of this subparagraph; 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.
116(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.
116(3)
An application may include a statement of the reasons for seeking a review of the decision.
SECTION 116A
116A
Parties to AAT first review
[
CCH Note:
S 116A heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
The parties to an AAT first review of a care percentage decision include, in addition to the parties referred to in subsection 30(1) of the AAT Act, each person who is a responsible person (within the meaning of the Child Support (Assessment) Act 1989) for the child to whom the decision relates.
[
CCH Note:
S 116A will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review" and "subsection 22(1) of the ART Act" for "subsection 30(1) of the AAT Act", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 116A inserted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015.
SECTION 117
117
AAT summons power for AAT first reviews
(Repealed by No 3 of 2022)
History
S 117 repealed by No 3 of 2022, s 3 and Sch 1 item 3, effective 17 August 2022. S 117 formerly read:
SECTION 117 AAT summons power for AAT first reviews
117
Section 40A of the AAT Act does not apply in relation to an AAT first review.
S 117 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. S 117 formerly read:
SECTION 117 Variation of decision before review completed
117(1)
If an officer varies a 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 to be treated as if it were an application for review of the decision as varied.
117(2)
If an officer sets a decision aside 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 to be treated as if it were an application for review of the new decision.
117(3)
If:
(a)
a person applies to the SSAT for review of a decision; and
(b)
before determination of the review, an officer varies the decision or sets it aside and substitutes a new decision;
the person may:
(c)
proceed with the application for review of the decision as varied or the new decision; or
(d)
request the Principal Member to dismiss the application under section 135; or
(e)
notify, under section 136, the SSAT that the application is discontinued or withdrawn.
History
S 117(3) substituted by No 154 of 2012, s 3 and Sch 3 item 7, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 117(3) formerly read:
117(3)
If:
(a)
a person applies to the SSAT for review of a decision; and
(b)
before determination of the review, an officer varies the decision or sets it aside and substitutes a new decision;
the person may either:
(c)
proceed with the application for review of the decision as varied or the new decision, as the case may be; or
(d)
withdraw the application under section 135.
SECTION 118
118
Provision of further information by Secretary for AAT first reviews
Repealed by No 3 of 2022
History
S 118 repealed by No 3 of 2022, s 3 and Sch 1 item 3, effective 17 August 2022. For saving provisions, see note under s 119(1). S 118 formerly read:
SECTION 118 Provision of further information by Secretary for AAT first reviews
118(1)
The AAT may request the Secretary to provide the AAT with information or a document that the Secretary has and that is relevant to an AAT first review.
118(2)
The Secretary must comply with the request as soon as practicable and no later than 14 days after the request is made.
S 118 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. S 118 formerly read:
SECTION 118 Parties to SSAT review
118(1)
The parties to a review by the SSAT are:
(a)
the applicant; and
(b)
the Secretary; and
(c)
for a review of a care percentage decision-each person who is a responsible person (within the meaning of the Child Support (Assessment) Act 1989) for the child to whom the decision relates; and
(d)
(Repealed by No 48 of 2009)
(e)
(Repealed by No 32 of 2011)
(f)
any other person who has been made a party to the review under subsection (4).
History
S 118(1) amended by No 154 of 2012, s 3 and Sch 3 item 8, by inserting para (c), effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
S 118(1) amended by No 32 of 2011, s 3 and Sch 4 item 32, by repealing paras (c) and (e), effective 1 July 2011. For transitional provisions see note under s 108(2). Paras (c) and (e) formerly read:
(c)
if the relevant decision was made by an officer of the Commonwealth Services Delivery Agency - the Chief Executive Officer of the Agency; and
(e)
if the relevant decision was made by an officer of Medicare Australia - the Chief Executive Officer of Medicare Australia; and
S 118(1) amended by No 48 of 2009, s 3 and Sch 1 item 11, by repealing para (d), effective 1 July 2009. For saving provision, see note under definition of "agency" in s 3(1). Para (d) formerly read:
(d)
if the relevant decision was made by an officer of the Australian Taxation Office - the Commissioner of Taxation; and
S 118(1) amended by No 111 of 2005, s 3 and Sch 2 item 88, by substituting "Medicare Australia - the Chief Executive Officer of Medicare Australia" for "the Health Insurance Commission - the Managing Director of the Commission" in para (e), effective 1 October 2005.
118(2)
If a person has applied under section 111 for review of a decision, any other person affected by the decision may apply to the Principal Member to be made a party to the review.
History
S 118(2) amended by No 103 of 2013, s 3 and Sch 1 item 16, by omitting "(other than a decision to which subsection (2A) applies)" after "review of a decision", effective 29 June 2013.
S 118(2) amended by No 38 of 2010, s 3 and Sch 3 item 21, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
S 118(2) amended by No 45 of 2000, s 3 Sch 2 item 115, by inserting "(other than a decision to which subsection (2A) applies)" after "a decision", effective 1 July 2000. For transitional provisions see note under s 69.
118(2A)
(Repealed by No 146 of 2006)
History
S 118(2A) repealed by No 146 of 2006, s 3 and Sch 5 item 85, effective 1 July 2008. S 118(2A) formerly read:
118(2A)
If a party to an agreement that is the subject of a decision under subsection 91A(3) of the Child Support (Assessment) Act 1989 applies to the SSAT:
(a)
unless paragraph (b) applies - for a review of that decision; or
(b)
if that decision has been affirmed or varied, or set aside and another decision substituted for it - for a review of the decision as so affirmed or varied or of the substituted decision;
the Executive Director must order that the other party to the agreement be made a party to the review. This requirement does not apply if the other party to the agreement has given the Executive Director a written notice waiving his or her rights under section 111 and this subsection in relation to the review.
118(3)
An application under subsection (2) must be in writing.
118(4)
The Principal Member may order that a person who has applied under subsection (2) be made a party to the review.
History
S 118(4) amended by No 38 of 2010, s 3 and Sch 3 item 21, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
SECTION 119
Power to obtain information for AAT first reviews
[
CCH Note:
S 119 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART reviews" for "AAT first reviews", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
119(1)
If the AAT reasonably believes that a person has information that is relevant to an AAT first review and the person is not a party to that review, the AAT may, by written notice given to the person, require the person to give to the AAT, within the period and in the manner specified in the notice, any such information.
Note:
Section 40A of the AAT Act deals with the AAT's power to summon a person to give evidence or produce documents.
[
CCH Note:
S 119(1) will be substituted by No 38 of 2024, s 3 and Sch3 item 28, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 119(1) will read:
119(1)
If the ART reasonably believes that a person has information that is relevant to an ART review and the person is not a party to the review, the ART may, by written notice given to the person, require the person to give to the ART, within the period and in the manner specified in the notice, any such information.
Note:
Section 74 of the ART Act deals with the ART's power to summon a person to give evidence or produce documents.
]
History
S 119(1) substituted by No 3 of 2022, s 3 and Sch 1 item 4, effective 17 August 2022. No 3 of 2022, s 3 and Sch 1 item 14 contain the following saving provisions:
14 Saving provisions
(1)
Section 118 of the A New Tax System (Family Assistance) (Administration) Act 1999, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a request made under subsection 118(1) of that Act before that commencement.
(2)
Section 119 of the A New Tax System (Family Assistance) (Administration) Act 1999, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to a notice given under subsection 119(1) of that Act before that commencement.
…
S 119(1) formerly read:
119(1)
If the AAT reasonably believes that a person has information or a document that is relevant to an AAT first review, the AAT may, by written notice given to the person, require the person:
(a)
to give to the AAT, within the period and in the manner specified in the notice, any such information; or
(b)
to produce to the AAT, within the period and in the manner specified in the notice, any such documents.
119(2)
A person commits an offence if:
(a)
the AAT gives the person a notice under subsection (1); and
(b)
the person fails to comply with the notice.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
[
CCH Note:
S 119(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 29, by substituting the penalty, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The penalty will read:
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
]
[
CCH Note:
S 119(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" in para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
119(3)
Subsection (2) does not apply if complying with the notice might tend to incriminate the person.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
History
S 119 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 120
AAT may require Secretary to obtain information for AAT first review
[
CCH Note:
S 120 heading will be substituted by No 38 of 2024, s 3 and Sch 3 item 30, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The heading will read:
120 ART may require Secretary to obtain information for ART review
]
120(1)
If the AAT reasonably believes that a person will be able to give information, or produce a document or records, relevant to an AAT first review, the AAT may, for the purposes of the review, request the Secretary to exercise the Secretary's powers under section 154 or 157A.
[
CCH Note:
S 120(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 31, by substituting "If the ART reasonably believes that a person will be able to give information, or produce a document or records, relevant to an ART review, the ART may" for "If the AAT reasonably believes that a person will be able to give information, or produce a document or records, relevant to an AAT first review, the AAT may", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 120(1) amended by No 26 of 2018, s 3 and Sch 17 item 2, by substituting "reasonably believes that a person will be able to give information, or produce a document or records, relevant" for "is satisfied that a person has information, or custody or control of a document, that is relevant", applicable in relation to requests made on or after 2 July 2018.
S 120(1) amended by No 22 of 2017, s 3 and Sch 1 item 172, by substituting "under section 154 or 157A" for "under section 154", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
120(2)
The Secretary must comply with the request as soon as practicable and no later than 7 days after the request is made.
120(3)
Section 153A does not apply to the Secretary when complying with a request under subsection (1).
History
S 120(3) inserted by No 26 of 2018, s 3 and Sch 17 item 3, applicable in relation to requests made on or after 2 July 2018.
History
S 120 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 121
Hearing of AAT first review in private
121(1)
The hearing of an AAT first review must be in private.
121(2)
The AAT may give directions, in writing or otherwise, as to the persons who may be present at any hearing of an AAT first review.
121(3)
In giving directions, the AAT must have regard to the wishes of the parties and the need to protect their privacy.
121(4)
Subsections 35(1) and (2) of the AAT Act do not apply in relation to the hearing of an AAT first review.
[
CCH Note:
S 121 will be substituted by No 38 of 2024, s 3 and Sch 3 item 32, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 121 will read:
SECTION 121 Hearing of certain ART reviews in private
121(1)
This section applies in relation to a proceeding for ART review if the ART is constituted for the purposes of the proceeding otherwise than by the guidance and appeals panel.
121(2)
The hearing of the proceeding must be in private.
121(3)
The ART may give directions, in writing or otherwise, as to the persons who may be present at the hearing of the proceeding.
121(4)
In giving directions, the ART must have regard to the wishes of the parties and the need to protect their privacy.
121(5)
Section 69 (hearings to be in public unless practice directions or ART order requires otherwise) of the ART Act does not apply in relation to the hearing of the proceeding.
]
History
S 121 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 122
Costs of AAT first review
[
CCH Note:
S 122 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT firstreview", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
122(1)
Subject to subsection (4), a party to an AAT first review must bear any expenses incurred by the party in connection with the review.
[
CCH Note:
S 122(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 32A, by inserting "and the outcome of any application under section 294 of the ART Act" after "subsection (4)", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
[
CCH Note:
S 122(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
122(2)
The AAT may determine that the Commonwealth is to pay the reasonable costs that are:
(a)
incurred by a party for travel and accommodation in connection with an AAT first review; and
(b)
specified in the determination.
[
CCH Note:
S 122(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "The ART" for "The AAT" and "ART review" for "AAT first review" in para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
122(3)
If the AAT arranges for the provision of a medical service in relation to a party to an AAT first review, the AAT may determine that the Commonwealth is to pay the costs of the provision of the service.
[
CCH Note:
S 122(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 33, by substituting "If the ART arranges for the provision of a medical service in relation to a party to an ART review, the ART may" for "If the AAT arranges for the provision of a medical service in relation to a party to an AAT first review, the AAT may", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
122(4)
If the AAT makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.
[
CCH Note:
S 122(4) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 122 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 123
123
Decision on AAT first review of care percentage decision
[
CCH Note:
S 123 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
If:
(a)
the AAT has reviewed a decision on application referred to in section 89 or paragraph 96A(b) of the Child Support (Registration and Collection) Act 1988; and
(b)
that review involved (wholly or partly) a review of a determination to which a care percentage decision relates;
then, despite subsection 43(1) of the AAT Act, the AAT must not, on AAT first review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).
[
CCH Note:
S 123 will be amended by No 38 of 2024, s 3 and Sch 3 item 33A, by substituting para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. Para (a) will read:
(a)
the ART has reviewed:
(i)
a decision (a
child support decision
) on application referred to in section 89 of the Child Support (Registration and Collection) Act 1988; or
(ii)
a decision on application referred to in section 131D of the ART Act in relation to a child support decision; and
]
[
CCH Note:
S 123 will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "despite section 54 of the ART Act, the ART must not, on ART review" for "despite subsection 43(1) of the AAT Act, the AAT must not, on AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 123 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 124
Certain other decisions on AAT first review
[
CCH Note:
S 124 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
124(1)
If, on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act and substitutes for it a decision that a person is entitled to have a payment made under this Act, the AAT must:
(a)
assess the amount of the payment; or
(b)
ask the Secretary to assess the amount of the payment.
[
CCH Note:
S 124(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 34, by substituting all the words before para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. All the words before para (a) will read:
124(1)
If, on ART review of a decision, the ART sets the decision aside under section 105 of the ART Act and substitutes for it a decision that a person is entitled to have a payment made under this Act, the ART must:
]
124(2)
Despite subsection (1), the AAT must ask the Secretary to assess, in accordance with any directions or recommendations of the AAT, the amount of CCS or ACCS an individual or provider is entitled to be paid, if:
(a)
on AAT first review, the AAT:
(i)
reviews a child care decision in relation to section 67CD, 67CF or 67CH as to an amount of CCS or ACCS that the individual or provider is entitled to be paid; and
(ii)
considers that the individual or provider is entitled to be paid a different amount of CCS or ACCS; or
(b)
on AAT first review, the AAT:
(i)
reviews a child care decision in relation to subsection 67CD(6), 67CF(3) or 67CH(3) that the individual or provider is not entitled to be paid CCS or ACCS; and
(ii)
considers that the individual or provider is entitled to be paid an amount of CCS or ACCS.
[
CCH Note:
S 124(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "the ART must" for "the AAT must", "of the ART" for "of the AAT", "on ART review, the ART" for "on AAT first review, the AAT" in para (a) and "on ART review, the ART" for "on AAT first review, the AAT" in para (b), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 124(2) substituted by No 22 of 2017, s 3 and Sch 1 item 173, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 124(2) formerly read:
124(2)
If, on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act and substitutes for it a decision that a person is conditionally eligible for child care benefit by fee reduction, the AAT must:
(a)
ask the Secretary to determine the weekly limit of hours, CCB % and schooling % applicable to the person; and
(b)
if the limit or percentage affects the amount of the entitlement of the person - assess that amount.
124(3)
For the purposes of this Part and the definition of
child care decision
in subsection 3(1), the Secretary's assessment under subsection (2) forms part of the AAT's decision on the review.
History
S 124(3) substituted by No 22 of 2017, s 3 and Sch 1 item 173, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 124(3) formerly read:
124(3)
If, on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act and substitutes for it a decision that the weekly limit of hours, the CCB % or the schooling % applicable to a person is to be increased, the AAT must:
(a)
determine what the limit or percentage is to be; or
(b)
ask the Secretary to assess the limit or percentage.
History
S 124 inserted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015.
Former s 124 repealed by No 33 of 2010, s 3 and Sch 1 item 5, applicable in relation to applications for review made on or after 14 April 2010. For former wording, see note under Part 5 Div 3 heading.
SECTION 125
Date of effect of certain AAT first review decisions relating to payment of family tax benefit
[
CCH Note:
S 125 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
125(1)
If:
(a)
a person makes an application for AAT first review of a decision (the
original decision
) relating to the payment to a person of family tax benefit by instalment; and
(b)
the application is made more than 13 weeks after the person was given notice of the original decision; and
(c)
the AAT makes a decision under subsection 43(1) of the AAT Act to vary or substitute the original decision; and
(d)
the decision of the AAT will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;
then, despite subsection 43(6) of the AAT Act, the date of effect of the decision of the AAT is the first day of the period to which the original decision relates.
(e)
(Repealed by No 85 of 2016)
(f)
(Repealed by No 85 of 2016)
[
CCH Note:
S 125(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 36, by substituting "90 days" for "13 weeks" in para (b), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
[
CCH Note:
S 125(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review" in para (a), "the ART makes a decision under section 105 of the ART Act" for "the AAT makes a decision under subsection 43(1) of the AAT Act" in para (c), "ART" for "AAT" in para (d) and "despite subsections 108(4) and (5) of the ART Act, the date of effect of the decision of the ART" for "despite subsection 43(6) of the AAT Act, the date of effect of the decision of the AAT" in para (d), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 125(1) amended by No 85 of 2016, s 3 and Sch 1 item 11, by substituting "is the first day of the period to which the original decision relates" for all the words after "date of effect of the decision of the AAT", applicable in relation to a decision of the Administrative Appeals Tribunal made on or after 1 December 2016, where the original decision (referred to in paragraph 125(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year. All the words after "date of effect of the decision of the AAT" formerly read:
is:
(e)
unless paragraph (f) applies - the date that would give full effect to the decision of the AAT; or
(f)
if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the application to the AAT for review was made - that first day.
125(2)
The AAT may, if satisfied that there are special circumstances that prevented the applicant from making an application within 13 weeks, determine that subsection (1) applies as if the reference to 13 weeks were a reference to such longer period as the AAT determines to be appropriate.
[
CCH Note:
S 125(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 37, by substituting "90 days" for "13 weeks" (wherever occurring), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
[
CCH Note:
S 125(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" (wherever occurring), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
125(3)
If:
(a)
paragraphs (1)(a), (b), (c) and (d) apply; and
(b)
the first day of the period to which the original decision relates is earlier than the first day (the
cut-off day
) of the income year before the income year in which the application referred to in paragraph (1)(b) was made;
then, despite subsection (1), the person cannot be paid any entitlement created or increased as mentioned in paragraph (1)(d) (including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.
[
CCH Note:
S 125(3) will be amended by No 85 of 2016, s 3 and Sch 2 item 4, by omitting "(including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement)", effective at the same time as Part 3 of Schedule 3 to the Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Act 2016 commences. No 85 of 2016, s 3 and Sch 2 item 5(2) contains the following saving provision:
5 Saving provisions
…
(2)
Despite the amendment of subsection 125(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Schedule, that subsection, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to decisions of the AAT made before, on or after that commencement.
]
History
S 125(3) inserted by No 85 of 2016, s 3 and Sch 1 item 12, applicable in relation to a decision of the Administrative Appeals Tribunal made on or after 1 December 2016, where the original decision (referred to in paragraph 125(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999) related to the payment of family tax benefit by instalment for a period that consists of, or is included in, the 2012-13 income year or a later income year.
History
S 125 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 125A
125A
Date of effect of certain AAT first review decisions relating to eligibility for CCS
[
CCH Note:
S 125A heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
If:
(a)
the AAT makes a decision on AAT first review to vary, or set aside and substitute a new decision for, a child care decision in relation to section 67CC (eligibility for CCS) for an individual; and
(b)
the AAT's decision has the effect that the individual becomes eligible for CCS for a child, or eligible for additional days;
the date of effect of the AAT's decision cannot be earlier than the first day of the income year before the income year in which the application for review was made.
[
CCH Note:
S 125A will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "the ART makes a decision on ART review" for "the AAT makes a decision on AAT first review" in para (a) and "ART's" for "AAT's" (wherever occurring), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 125A inserted by No 22 of 2017, s 3 and Sch 1 item 174, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 126
Notification of decisions and reasons for AAT first review
126(1)
If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act to affirm the decision under review, the AAT must, within 14 days of making the decision:
(a)
give a written notice to the parties that sets out the decision; and
(b)
either:
(i)
give reasons for the decision orally to the parties and explain that they may request a written statement of reasons; or
(ii)
give the parties a written statement of reasons for the decision.
126(2)
If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act that is other than to affirm the decision under review, the AAT must, within 14 days of making the decision:
(a)
give a written notice to the parties that sets out the decision; and
(b)
give the parties a written statement of reasons for the decision.
126(3)
A failure to comply with subsection (1) or (2) does not affect the validity of the decision.
126(4)
A party to whom oral reasons are given may, within 14 days after the oral reasons are given, request a written statement of reasons for the decision. If the party does so, the AAT must give the party the statement requested within 14 days after receiving the request.
126(5)
Subsections 43(2) and (2A) of the AAT Act do not apply in relation to an AAT first review. However, any written statement of reasons given must comply with subsection 43(2B) of that Act.
[
CCH Note:
S 126 will be repealed by No 38 of 2024, s 3 and Sch 3 item 38, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 126 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 127
127
Secretary or AAT may treat event as having occurred if decision set aside on AAT first review
[
CCH Note:
S 127 heading will be substituted by No 38 of 2024, s 3 and Sch 3 item 39, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. The heading will read:
127 Secretary or ART may treat event as having occurred if decision set aside on ART review
]
If:
(a)
on AAT first review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act; and
(b)
the Secretary or the AAT, as the case may be, is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary or the AAT may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of the family assistance law.
[
CCH Note:
S 127 will be amended by No 38 of 2024, s 3 and Sch 3 item 40, by substituting para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. Para (a) will read:
(a)
on ART review of a decision, the ART sets the decision aside under section 105 of the ART Act; and
]
[
CCH Note:
S 127 will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "or the ART" for "or the AAT" in para (b) and "ART may" for "AAT may", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 127 substituted by No 60 of 2015 (as amended by No 4 of 2016), s 3 and Sch 5 item 22, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
Subdivision D- Application for AAT second review
[
CCH Note:
Subdiv D will be repealed by No 38 of 2024, s 3 and Sch 3 item 41, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Subdiv D heading inserted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
SECTION 128
Application for AAT second review
128(1)
Application may be made to the AAT for review (
AAT second review
) of a decision made by the AAT under subsection 43(1) of the AAT Act on AAT first review.
128(2)
For the purposes of subsection (1), the decision on AAT first review is taken to be:
(a)
if the AAT affirmed a decision - the decision as affirmed; and
(b)
if the AAT varied a decision - the decision as varied; and
(c)
if the AAT set a decision aside and substituted a new decision - the new decision; and
(d)
if the AAT set a decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT - the directions or recommendations of the AAT.
128(3)
Subsection 111(2A) applies to an AAT second review of a child care decision about an individual's entitlement to be paid CCS for a week as if the reference to AAT first review were a reference to AAT second review.
Note:
Subsection 111(2A) provides that certain aspects of child care decisions are not to be reviewed unless the individual has met the CCS reconciliation conditions for the relevant income year.
History
S 128(3) inserted by No 22 of 2017, s 3 and Sch 1 item 175, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
128(4)
(Repealed by No 125 of 2019)
History
S 128(4) repealed by No 125 of 2019, s 3 and Sch 1 item 60, effective 16 December 2019. S 128(4) formerly read:
128(4)
Subsection 111(2B) applies to an AAT second review of a child care decision made because of subsection 105AB(2) as if the reference to AAT first review were a reference to AAT second review.
Note:
Subsection 111(2B) provides that certain decisions are not to be reviewed unless the individual has met the CCS reconciliation conditions for the relevant income year.
S 128(4) inserted by No 22 of 2017, s 3 and Sch 1 item 175, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
128(5)
Despite paragraph 29(1)(d) of the AAT Act, an application for AAT second review of a child care decision about an individual's entitlement to be paid CCS for a week may also be lodged with the AAT after the prescribed time mentioned in section 29 of the AAT Act if the application for review is made:
(a)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week starts; and
(b)
within the prescribed time (within the meaning of section 29 of the AAT Act) after the individual or other person was notified by the Commissioner of the outcome of the review.
History
S 128(5) inserted by No 22 of 2017, s 3 and Sch 1 item 175, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
History
S 128 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 129
129
Notice of application for AAT second review
(Repealed by No 132 of 2015)
History
S 129 repealed by No 132 of 2015, s 3 and Sch 1 item 7, effective 14 October 2015. S 129 formerly read:
SECTION 129 Notice of application for AAT second review
129
The AAT Act applies in relation to an application for AAT second review of a decision as if the reference in paragraph 29AC(1)(b) of the AAT Act to the person who made the decision were a reference to each personwho was a party to the relevant AAT first review, other than the applicant for AAT second review.
S 129 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
Subdivision E - Other matters relating to AAT second review
[
CCH Note:
Subdiv E will be repealed by No 38 of 2024, s 3 and Sch 3 item 41, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Subdiv E heading inserted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
SECTION 130
130
Parties to AAT second review
The AAT Act applies in relation to an application for AAT second review of a decision 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 relevant AAT first review, other than the applicant for AAT second review.
History
S 130 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 131
Operation and implementation of decision subject to AAT second review
131(1)
The AAT Act applies in relation to an application for AAT second review of a decision as if the reference in subsection 41(2) of the AAT Act to the decision to which the relevant proceeding relates were a reference to:
(a)
if, on AAT first review, the AAT affirmed the original decision - the original decision; and
(b)
otherwise - both the original decision and whichever of the following is applicable in relation to the AAT first review
(i)
the original decision as varied by the AAT;
(ii)
the decision substituted by the AAT;
(iii)
the decision made as a result of reconsideration by the Secretary in accordance with any directions or recommendations of the AAT.
131(2)
For the purposes of subsection (1), the original decision is the decision that was the subject of the AAT first review.
131(3)
The AAT Act applies in relation to an application for AAT second review of a decision as if references in subsections 41(4) and (5) of the AAT Act to the person who made the decision to which the relevant proceeding relates were references to each party to the relevant AAT first review.
History
S 131 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 132
Variation of original decision after application is made for AAT second review
132(1)
If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:
(a)
the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and
(b)
the application is taken to be an application for AAT second review of the decision as varied or substituted.
132(2)
If the person who made the application does not want a review of the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.
History
S 132 inserted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
Former s 132 repealed by No 45 of 2000, s 3 Sch 2 item 118, effective 1 July 2000. For transitional provisions see note under s 69. For former wording, see note under Part 5 Div 3 heading.
SECTION 133
133
Failure of party to appear at AAT second review
The AAT Act applies in relation to an application for AAT second review of a decision 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.
History
S 133 inserted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
Former s 133 repealed by No 154 of 2012, s 3 and Sch 3 item 24, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. For former wording, see note under Part 5 Div 3 heading.
SECTION 134
134
Decision on AAT second review of care percentage decision
If:
(a)
the AAT has reviewed a decision on application referred to in paragraph 96A(b) of the Child Support (Registration and Collection) Act 1988; and
(b)
that review involved (wholly or partly) a review of a determination to which a care percentage decision relates;
then, despite subsection 43(1) of the AAT Act, the AAT must not, on AAT second review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).
History
S 134 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 134A
134A
Certain other decisions on AAT second review
Section 124 applies to an AAT second review of a child care decision in relation to section 67CD, 67CF or 67CH as if the references to AAT first review were references to AAT second review.
Note:
Section 124 provides for the AAT to ask the Secretary to assess amounts of CCS or ACCS in certain circumstances.
History
S 134A inserted by No 22 of 2017, s 3 and Sch 1 item 176, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 134B
134B
Date of effect of certain AAT second review decisions in relation to eligibility for CCS
Section 125A applies to an AAT second review of a child care decision in relation to section 67CC as if the reference to AAT first review were a reference to AAT second review.
Note:
Section 125A provides for the date of effect of a decision to vary, or set aside and substitute a new decision for, a child care decision in relation to section 67CC.
History
S 134B inserted by No 22 of 2017, s 3 and Sch 1 item 176, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 135
135
Secretary may treat event as having occurred if decision set aside on AAT second review
If:
(a)
on AAT second review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act; and
(b)
the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of the family assistance law.
History
S 135 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
Former s 135 substituted by No 154 of 2012, s 3 and Sch 3 item 26, applicable in relation to applications dismissed on or after 15 December 2012 (whether the application for review was made before or after 15 December 2012). For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 135 formerly read:
SECTION 135 Withdrawal of application for review
135(1)
An applicant for review of a decision may withdraw the application at any time.
135(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 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.
135(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.
135(4)
If a person withdraws an application by sending or delivering written notice of withdrawal to an office of an agency, the head of the agency must send 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.
History
S 135(4) amended by No 38 of 2010, s 3 and Sch 3 item 44, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
Subdivision F - Matters relating to both AAT first review and AAT second review
[
CCH Note:
Subdiv F heading will be repealed by No 38 of 2024, s 3 and Sch 3 item 42, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Subdiv F heading inserted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
SECTION 136
Notice by Secretary of certain AAT decisions in relation to CCS or ACCS by fee reduction
[
CCH Note:
S 136 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
136(1)
This section applies to a decision on AAT first review or AAT second review of a child care decision in relation to section 67CD (entitlement to be paid CCS or ACCS) for an individual in relation to sessions of care.
[
CCH Note:
S 136(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review or AAT second review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
136(2)
If the decision is a fee reduction decision, the Secretary must give written notice of the decision and the fee reduction amount for the decision to the provider of the approved child care service that provided the sessions of care.
136(3)
If the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2), the notice under subsection (2) of this section must include a statement to that effect.
136(4)
If the decision is not a fee reduction decision, the Secretary may give written notice of the decision to the provider of the approved child care service that provided the sessions of care.
136(5)
A notice under this section may be given to a provider by making the notice available using an electronic interface.
History
S 136 substituted by No 22 of 2017, s 3 and Sch 1 item 177, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 136 formerly read:
SECTION 136 Notice by Secretary of certain AAT decisions on AAT first review or AAT second review
136(1)
This section applies if:
(a)
the AAT makes a decision on AAT first review or AAT second review in respect of an individual claiming child care benefit by fee reduction for care provided by an approved child care service to a child; and
(b)
the decision on review is to vary, or set aside and substitute a new decision for one of the following decisions:
(i)
a determination of conditional eligibility;
(ii)
a weekly limit of hours, CCB % or schooling % applicable to the individual;
(iii)
a determination whether the individual is eligible for the special grandparent rate for the child;
(iv)
a determination of rate under subsection 81(2) or (3) of the Family Assistance Act; and
(c)
on the day that the AAT decision is made:
(i)the service is still providing care to the child; and
(ii)
a determination of conditional eligibility is still in force in respect of the individual with effect that the individual is conditionally eligible.
136(2)
The Secretary:
(a)
must give notice of an AAT decision mentioned in subparagraph (1)(b)(iv) to the service; and
(b)
must state in the notice the effect of the decision; and
(c)
may give the notice by making it available to the service using an electronic interface.
136(3)
The Secretary may make the notice of an AAT decision mentioned in paragraph (1)(b) (other than subparagraph (1)(b)(iv)) available to the service, including by making the notice available to the service using an electronic interface.
S 136 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
Former s 136 substituted by No 154 of 2012, s 3 and Sch 3 item 26, applicable in relation to notifications given on or after 15 December 2012 (whether the application for review was made before or after 15 December 2012). For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 136 formerly read:
SECTION 136 Dismissal of an application
136(1)
If:
(a)
a person makes an application to the SSAT for review of a decision; and
(b)
the Principal Member is satisfied:
(i)
after having communicated with the person; or
(ii)
after having made reasonable attempts to communicate with the person and having failed to do so;
that the person does not intend to proceed with the application;
the Principal Member may dismiss the application.
History
S 136(1) amended by No 38 of 2010, s 3 and Sch 3 item 45, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
136(2)
If the Principal Member dismisses an application under subsection (1), the application is taken to have been withdrawn at the time at which the application was dismissed.
History
S 136(2) amended by No 38 of 2010, s 3 and Sch 3 item 46, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
SECTION 137
Settlement of proceedings before the AAT
[
CCH Note:
S 137 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
137(1)
The Secretary may agree, in writing, with other parties to settle proceedings before the AAT if the proceedings are an AAT first review or AAT second review and they relate to the recovery of a debt.
[
CCH Note:
S 137(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART if the proceedings are an ART review" for "AAT if the proceedings are an AAT first review or AAT second review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
137(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.
[
CCH Note:
S 137(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 137 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
Former s 137 substituted by No 38 of 2010, s 3 and Sch 3 item 3, applicable in relation to applications for review made on or after 11 May 2010. S 137 formerly read:
SECTION 137 Chairperson for each SSAT hearing
137(1)
If the Executive Director is one of the members who constitute the SSAT for the purposes of the review of a decision, the Executive Director is to preside at the hearing of the review.
137(2)
If:
(a)
the members who constitute the SSAT for the purposes of the review of a decision include one Director; and
(b)
the Executive Director is not one of those members;
the Director is to preside at the hearing of the review.
137(3)
In any other case in which the SSAT is constituted by 2 or more members for the purposes of the review of a decision, the Executive Director must designate one of those members as the member who is to preside at the hearing of the review.
SECTION 137A
AAT review of entitlement to be paid CCS or ACCS - taking account of changes of circumstances etc.
[
CCH Note:
S 137A heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
Favourable changes affecting individuals
137A(1)
A decision on AAT first review or AAT second review of a child care decision in relation to section 67CD as to an individual's entitlement to be paid CCS or ACCS for a week must not take into account information if:
(a)
apart from this section, the information would have the effect that the amount of CCS or ACCS the individual is entitled to be paid for the week is increased (including from nil); and
(b)
either:
(i)
the individual was required to notify the Secretary of the information by subsection 67FB(1); or
(ii)
the Secretary required the individual to give the information or produce a document containing the information under Part 6 and the individual did not give the information or produce the document within the required period; and
(c)
the CCS fortnight that includes the week started more than 28 days before the earliest of the following events:
(i)
the individual notified or gave the information or produced the document;
(ii)
the Secretary otherwise became aware of the information;
(iii)
the AAT otherwise became aware of the information.
[
CCH Note:
S 137A(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review or AAT second review" and "ART" for "AAT" in para (c)(iii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
137A(2)
Despite subsection (1), the decision on review may take the information into account if the Secretary is satisfied that the individual notified or gave the information, or produced the document, as soon as practicable.
137A(3)
Subsection (1) does not apply if the information is the adjusted taxable income of the individual.
Favourable changes affecting providers
137A(4)
A decision on AAT first review or AAT second review of a child care decision in relation to section 67CH as to a provider's entitlement to be paid ACCS (child wellbeing) for a week must not take into account information if:
(a)
apart from this section, the information would have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for the week is increased (including from nil); and
(b)
either:
(i)
the provider was required to notify the Secretary of the information by section 204F; or
(ii)
the Secretary required the provider to give the information or produce a document containing the information under Part 6 and the provider did not give the information or produce the document within the required period; and
(c)
the CCS fortnight that includes the week started more than 28 days before the earliest of the following events:
(i)
the provider notified or gave the information or produced the document;
(ii)
the Secretary otherwise became aware of the information;
(iii)
the AAT otherwise became aware of the information.
[
CCH Note:
S 137A(4) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review or AAT second review" and "ART" for "AAT" in para (c)(iii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
137A(5)
Despite subsection (4), the decision on review may take the information into account if the Secretary is satisfied that the provider notified or gave the information, or produced the document, as soon as practicable.
History
S 137A inserted by No 22 of 2017, s 3 and Sch 1 item 178, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 137B
AAT review of entitlement to be paid CCS or ACCS - time limit on increase
[
CCH Note:
S 137B heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
137B(1)
A decision on AAT first review or AAT second review of a child care decision in relation to section 67CD as to an individual's entitlement to be paid CCS or ACCS must not have the effect that the amount of CCS or ACCS the individual is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the application for the review is made.
[
CCH Note:
S 137B(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review or AAT second review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
137B(2)
Subsection (1) does not apply if:
(a)
the decision on review is a child care decision made because of or in relation to section 105E, to the extent that the review relates to the individual's adjusted taxable income for the income year in which the CCS fortnight starts; or
(b)
the application for review is made:
(i)
because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight starts; and
(ii)
within 13 weeks after the individual or other person was notified by the Commissioner of the outcome of the review.
[
CCH Note:
S 137B(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 43, by substituting "90 days" for "13 weeks" in para (b)(ii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
137B(3)
A decision on AAT first review or AAT second review of a child care decision in relation to section 67CH as to a provider's entitlement to be paid ACCS (child wellbeing) must not have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the application for the review is made.
[
CCH Note:
S 137B(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART review" for "AAT first review or AAT second review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 137B inserted by No 22 of 2017, s 3 and Sch 1 item 178, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Subdivision G - AAT single review
[
CCH Note:
Subdiv G heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART child care provider review" for "AAT single review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
Subdiv G heading inserted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
SECTION 138
Applications for AAT single review
[
CCH Note:
S 138 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART child care provider review" for "AAT single review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
Decision of Secretary or authorised review officer
138(1)
If:
(a)
a child care provider decision (other than a decision made under section 197H or 197J) has been reviewed under section 109A; and
(b)
the decision has been affirmed, varied or set aside and substituted by the Secretary or authorised review officer under subsection 109A(2);
the provider may apply to the AAT for review (
AAT single review
) of the decision of the Secretary or authorised review officer.
[
CCH Note:
S 138(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 44, by substituting "ART for review (
ART child care provider review
)" for "AAT for review (
AAT single review
)", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 138(1) amended by No 26 of 2021, s 3 and Sch 1 item 23, by substituting "a child care provider decision" for "a decision made under Part 8 (approval of providers of child care services) in relation to a provider" in para (a), applicable in relation to decisions made on or after 27 March 2021. For application provisions, see note under s 205C.
S 138(1) amended by No 125 of 2019, s 3 and Sch 2 item 9, by inserting "(other than a decision made under section 197H or 197J)" in para (a), effective 13 December 2019. No 125 of 2019, s 3 and Sch 2 item 29 contains the following application provision:
29 Application - decisions for which AAT single review may be sought
29
The amendments of section 138 of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Schedule do not apply in relation to a decision made under section 197H or 197J of that Act if the provider applies to the AAT for review of the decision under section 138 of that Act before 13 December 2019.
S 138(1) substituted by No 22 of 2017, s 3 and Sch 1 item 179, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 138(1) formerly read:
Decisions of Secretary or authorised review officer
138(1)
If:
(a)
a decision of the kind mentioned in subsection (4) has been reviewed under section 109A; and
(b)
the decision has been affirmed, varied or set aside and substituted by the Secretary or authorised review officer under subsection 109A(2);
applications may be made to the AAT for review (
AAT single review
) of the decision of the Secretary or an authorised review officer.
138(2)
For the purposes of subsection (1), the decision of the Secretary or authorised review officer is taken to be:
(a)
if the Secretary or authorised review officer affirmed a decision - that decision as affirmed; or
(b)
if the Secretary or authorised review officer varied a decision - that decision as varied; or
(c)
if the Secretary or authorised review officer set aside a decision and substituted a new decision - the new decision.
Decision made personally by agency head
138(3)
If a child care provider decision (other than a decision under section 197H or 197J) is made by:
(a)
the Secretary personally; or
(b)
another agency head personally in the exercise of a delegated power; or
(c)
the Chief Executive Centrelink in the exercise of a delegated power; or
(d)
the Chief Executive Medicare in the exercise of a delegated power;
the provider may apply to the AAT for review (also an
AAT single review
) of the decision.
[
CCH Note:
S 138(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 45, by substituting "ART for review (also an
ART child care provider review
)" for "AAT for review (also an
AAT single review
)", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
[
CCH Note:
S 138(3A) will be inserted by No 38 of 2024, s 3 and Sch 3 item 46, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 138(3A) will read:
Referral to guidance and appeals panel
138(3A)
If a guidance and appeals panel application is taken to have been made because the ART's decision on ART child care provider review is referred to the guidance and appeals panel, review of the decision to which that application relates is also an
ART child care provider review
.
]
History
S 138(3) amended by No 26 of 2021, s 3 and Sch 1 item 24, by substituting "a child care provider decision" for "a decision under Part 8 (approval of providers of child care services) in relation to a provider", applicable in relation to decisions made on or after 27 March 2021. For application provisions, see note under s 205C.
S 138(3) amended by No 125 of 2019, s 3 and Sch 2 item 10, by inserting "(other than a decision under section 197H or 197J)", effective 13 December 2019. For application provision, see note under s 138(1).
S 138(3) substituted by No 22 of 2017, s 3 and Sch 1 item 180, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 138(3) formerly read:
Decisions made personally by agency heads
138(3)
Applications may also be made to the AAT for review (also an
AAT single review
) of a decision of the kind mentioned in subsection (4) made by:
(a)
the Secretary personally; or
(b)
another agency head personally in the exercise of a delegated power; or
(c)
the Chief Executive Centrelink in the exercise of a delegated power; or
(d)
the Chief Executive Medicare in the exercise of a delegated power.
Meaning of
child care provider decision
138(4)
Each of the following is a
child care provider decision
:
(a)
a decision under Part 4 (overpayments and debt recovery) in relation to a debt of an approved provider;
(b)
a decision under Part 8 (approval of provider of child care services) in relation to a provider;
(c)
a decision under section 205C (business continuity payments - emergency or disaster).
History
S 138(4) inserted by No 26 of 2021, s 3 and Sch 1 item 25, applicable in relation to decisions made on or after 27 March 2021. For application provisions, see note under s 205C.
Former s 138(4) repealed by No 22 of 2017, s 3 and Sch 1 item 181, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 138(4) formerly read:
Kind of decisions
138(4)
For the purposes of subsections (1) and (3), the following are the kinds of decisions:
(a)
a decision under section 195 not to approve a child care service for the purposes of the family assistance law or to approve the service from a particular day;
(b)
a decision under subsection 199(2) to impose another condition for the continued approval of an approved child care service;
(c)
a decision under subsection 200(1) to do one or more of the things mentioned in paragraphs (a) to (h) of that subsection in relation to an approved child care service;
(d)
a decision under subsection 200(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(e)
a decision under subsection 201A(1) to suspend the approval of an approved child care service from a particular day;
(f)
a decision under subsection 201A(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(g)
a decision under subsection 202(2) not to cancel an approved child care service's approval;
(h)
a decision under subsection 202(3) to cancel an approved child care service's approval;
(i)
a decision under subsection 202(4) to cancel an approved child care service's approval, but only if the service made submissions under paragraph 203(1)(e) in relation to the cancellation;
(j)
a decision under paragraph 205(3)(a) not to exempt a specified child care service from a specified eligibility rule;
(k)
a decision under section 207 to:
(i)
refuse to allocate any child care places to an approved child care service; or
(ii)
refuse to allocate the number of child care places an approved child care service has applied for under that section;
unless the decision is based on guidelines of the Minister of the kind mentioned in paragraph 206(c);
(l)
a decision under section 207A to reduce the number of child care places allocated to an approved child care service;
(m)
a decision under subsection 210(1) not to approve an individual as a registered carer for the purposes of the family assistance law;
(n)
a decision under subsection 212(1) as to when the approval of an applicant as a registered carer is taken to have come into force;
(o)
a decision under subsection 212(3) as to when the approval of an applicant as a registered carer is taken not to have been in force;
(p)
a decision under subsection 213(2) to impose another condition for the continued approval of an individual as a registered carer;
(q)
a decision under subsection 214(1) to do one or more of the things mentioned in paragraphs (a) to (d) of that subsection in relation to a registered carer;
(r)
a decision under subsection 216(3) to cancel a registered carer's approval;
(s)
a decision under subsection 219TSQ(1) to suspend an approved child care service's approval;
(t)
a decision under subsection 219TSQ(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(u)
a decision under subsection 57(1) of the Family Assistance Act.
History
S 138 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
[
CCH Note:
S 138A and 138B will be inserted by No 38 of 2024, s 3 and Sch 3 item 47, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 138A and 138B will read:
SECTION 138A Remitting decisions for reconsideration
138A
Section 85 (ART may remit decision to decision-maker for reconsideration) of the ART Act does not apply in relation to a proceeding for ART child care provider review unless the proceeding is in relation to a guidance and appeals panel application.
SECTION 138B Legal or financial assistance
138B(1)
Subsection 294(1) (legal or financial assistance for applicants) of the ART Act does not apply in relation to:
(a)
a person who proposes to apply to the ART for ART child care provider review; or
(b)
a person who applies to the ART for ART child care provider review, unless the proceeding in relation to the application is a guidance and appeals panel proceeding.
138B(2)
Subsection 294(3) (legal or financial assistance for other parties) of the ART Act does not apply in relation to a proceeding for ART child care provider review unless the proceeding is a guidance and appeals panel proceeding.
138B(3)
Subsection 294(4) (legal or financial assistance for court proceedings) of the ART Act does not apply in relation to a matter that relates to a proceeding for ART child care provider review unless the proceeding is a guidance and appeals panel proceeding.
]
SECTION 139
Variation of decision after application is made for AAT single review
[
CCH Note:
S 139 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART child care provider review" for "AAT single review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
139(1)
If an officer varies or substitutes a decision after an application has been made to the AAT for AAT single review of the decision, the application is taken to be an application for AAT single review of the decision as varied or substituted.
[
CCH Note:
S 139(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART for ART child care provider review" for "AAT for AAT single review" and "application for ART child care provider review" for "application for AAT single review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
139(2)
If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.
[
CCH Note:
S 139(2) will be substituted by No 38 of 2024, s 3 and Sch 3 item 48, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 139(2) will read:
139(2)
Subsection (1) does not apply if the application is a guidance and appeals panel application.
]
[
CCH Note:
S 139(3) will be inserted by No 38 of 2024, s 3 and Sch 3 item 48, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 139(3) will read:
139(3)
If:
(a)
a person makes an application (the
referral application
) under section 123 of the ART Act to refer the ART's decision on ART child care provider review to the guidance and appeals panel; and
(b)
the person is taken to have made a guidance and appeals panel application because the ART's decision is referred to the guidance and appeals panel; and
(c)
an officer varies or substitutes the decision (the
reviewable decision
) to which the guidance and appeals panel application relates:
(i)
after the referral application is made; and
(ii)
before the ART is constituted for the purposes of the proceeding in relation to the guidance and appeals panel application;
the guidance and appeals panel application is taken to be a guidance and appeals panel application in relation to the reviewable decision as varied or substituted by the officer.
]
History
S 139 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 140
140
Secretary may treat event as having occurred if decision to set aside on AAT single review
[
CCH Note:
S 140 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART child care provider review" for "AAT single review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
If:
(a)
on AAT single review of a decision, the AAT sets the decision aside under subsection 43(1) of the AAT Act; and
(b)
the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of the family assistance law.
[
CCH Note:
S 140 will be amended by No 38 of 2024, s 3 and Sch 3 item 49, by substituting para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. Para (a) will read:
(a)
on ART child care provider review of a decision, the ART sets the decision aside under section 105 of the ART Act; and
]
History
S 140 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
SECTION 141
Settlement of proceedings before the AAT
[
CCH Note:
S 141 heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
141(1)
The Secretary may agree, in writing, with other parties to settle proceedings before the AAT if the proceedings are an AAT single review and they relate to the recovery of a debt.
[
CCH Note:
S 141(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART if the proceedings are an ART child care provider review" for "AAT if the proceedings are an AAT single review", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
141(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.
[
CCH Note:
S 141(2) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 141 substituted by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. For former wording, see note under Part 5 Div 3 heading.
Division 3 - Procedures for review by the SSAT
History
Div 3 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. Div 3 formerly read:
Division 3 - Procedures for review by the SSAT
Subdivision A - Preliminary procedures
SECTION 119 Procedure on receipt of application for review by SSAT
119(1)
If an application under section 111 is sent or delivered to an office of the Department or another agency, the Secretary must send the appli 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 of the Department or other agency.
History
S 119(1) amended by No 38 of 2010, s 3 and Sch 3 item 22, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
119(2)
If:
(a)
an application under section 111 is sent or delivered to an office of the SSAT; or
(b)
the Secretary sends such an application 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.
History
S 119(2) amended by No 38 of 2010, s 3 and Sch 3 item 23, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
119(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 or any other officer; and
(ii)
relates to the applicant; and
(iii)
is relevant to the review of the decision.
History
S 119(3) amended by No 38 of 2010, s 3 and Sch 3 item 23, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
119(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 reasonable steps to comply with the Principal Member's request.
History
S 119(4) amended by No 38 of 2010, s 3 and Sch 3 items 24 and 25, by substituting "Principal Member" for "Executive Director" and substituting "Principal Member's" for "Executive Director's", effective 11 May 2010.
119(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.
History
S 119(5) amended by No 38 of 2010, s 3 and Sch 3 item 26, by substituting "Principal Member" for "Executive Director" in para (c), effective 11 May 2010.
SECTION 1
SECTION 120 Parties to be given a statement about the decision under review
1
The Principal Member must give each party (other than the Secretary) a copy of the statement referred to in paragraph 119(3)(a).
History
S 120 renumbered from s 120(1) by No 154 of 2012, s 3 and Sch 3 item 9, by omitting "(1)" before "The", effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
S 120(1) amended by No 38 of 2010, s 3 and Sch 3 item 27, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
120(2)
(Repealed by No 154 of 2012)
History
S 120(2) repealed by No 154 of 2012, s 3 and Sch 3 item 10, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 120(2) formerly read:
120(2)
The Principal Member may make an order directing a person who has received a copy of a statement in accordance with subsection (1):
(a)
not to disclose information in the statement; or
(b)
not to disclose information in the statement except in the circumstances or for the purposes specified in the order.
S 120(2) amended by No 38 of 2010, s 3 and Sch 3 item 27, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
120(3)
(Repealed by No 154 of 2012)
History
S 120(3) repealed by No 154 of 2012, s 3 and Sch 3 item 10, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 120(3) formerly read:
120(3)
An order under subsection (2) must be made by written notice given to the person to whom it is directed.
120(4)
(Repealed by No 154 of 2012)
History
S 120(4) repealed by No 154 of 2012, s 3 and Sch 3 item 10, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 120(4) formerly read:
120(4)
A person who contravenes an order under subsection (2) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
SECTION 121 Arrangements for hearing of application
121(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.
History
S 121(1) amended by No 38 of 2010, s 3 and Sch 3 item 28, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
121(2)
If a declaration under section 112 is in force in relation to a decision, the Principal Member must take reasonable steps to ensure that the decision is reviewed as quickly as possible.
History
S 121(2) amended by No 38 of 2010, s 3 and Sch 3 item 28, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
121(3)
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.
History
S 121(3) amended by No 38 of 2010, s 3 and Sch 3 item 28, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
121(4)
The notice under subsection (3) must be given a reasonable time before the day fixed for the hearing.
SECTION 122 Notice of application to person affected by decision
122(1)
If:
(a)
an application has been made to the SSAT for review of a decision; and
(b)
the Principal Member is satisfied that the interests of a person who is not a party to the review are affected by the decision;
the Principal Member must take reasonable steps to give the person written notice that an application has been made to the SSAT for review of the decision.
History
S 122(1) amended by No 38 of 2010, s 3 and Sch 3 item 29, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
122(2)
The notice under subsection (1):
(a)
must be in writing; and
(b)
must include notification of the person's right under section 118 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.
History
S 122(2) amended by No 38 of 2010, s 3 and Sch 3 item 30, by substituting "Principal Member" for "Executive Director" in para (b), effective 11 May 2010.
122(3)
The Principal Member must give each party to the review a copy of the notice.
History
S 122(3) amended by No 38 of 2010, s 3 and Sch 3 item 31, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
122(4)
(Repealed by No 146 of 2006)
History
S 122(4) repealed by No 146 of 2006, s 3 and Sch 5 item 86, effective 1 July 2008. S 122(4) formerly read:
122(4)
If a decision is made under subsection 91A(3) of the Child Support (Assessment) Act 1989 about a particular agreement, then, for the purposes of subsection (1) of this section, both of the parties to the agreement are taken to be parties whose interests are affected by the decision.
Subdivision B - Submissions from parties other than agency representatives
History
Subdiv B heading substituted by No 32 of 2011, s 3 and Sch 4 item 33, effective 1 July 2011. For transitional provisions see note under s 108(2). The heading formerly read:
Subdivision B - Submissions from parties other than agency heads
Subdiv B heading substituted by No 33 of 2010, s 3 and Sch 1 item 1, applicable in relation to applications for review made on or after 14 April 2010. The heading formerly read:
Subdivision B - How the SSAT informs itself about the decision under review
SECTION 122A
SECTION 122A Subdivision does not apply in relation to agency representatives
122A
This Subdivision does not apply in relation to a party to a review of a decision who is the head of an agency, the Chief Executive Centrelink or the Chief Executive Medicare.
History
S 122A amended by No 32 of 2011, s 3 and Sch 4 item 34, by inserting ", the Chief Executive Centrelink or the Chief Executive Medicare", effective 1 July 2011. For transitional provisions see note under s 108(2).
S 122A inserted by No 33 of 2010, s 3 and Sch 1 item 2, applicable in relation to applications for review made on or after 14 April 2010.
SECTION 123 Submissions to SSAT
123(1)
(Repealed by No 33 of 2010)
History
S 123(1) repealed by No 33 of 2010, s 3 and Sch 1 item 3, applicable in relation to applications for review made on or after 14 April 2010. S 123(1) formerly read:
123(1)
This section applies to a party to a review of a decision (other than the head of an agency).
123(2)
Subject to section 125, a party to a review of a decision may make oral or written submissions to the SSAT or both oral and written submissions.
History
S 123(2) amended by No 33 of 2010, s 3 and Sch 1 item 4, by substituting "a party to a review of a decision" for "the party", applicable in relation to applications for review made on or after 14 April 2010.
123(3)
The party may, with the permission of the Principal Member, have another person make submissions to the SSAT on the party's behalf.
History
S 123(3) substituted by No 154 of 2012, s 3 and Sch 3 item 11, applicable in relation to applications for review made after 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 123(3) formerly read:
123(3)
The party may have another person make submissions to the SSAT on behalf of the party.
123(3A)
In deciding whether to grant permission under subsection (3), the Principal Member must have regard to the wishes of the parties and the need to protect their privacy.
History
S 123(3A) inserted by No 154 of 2012, s 3 and Sch 3 item 11, applicable in relation to applications for review made after 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
123(4)
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.
History
S 123(4) amended by No 38 of 2010, s 3 and Sch 3 item 32, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
123(5)
Without limiting subsection (4), the Principal Member may make a determination under subsection (4) 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 applicant is unable to attend the hearing because of illness or infirmity.
History
S 123(5) amended by No 38 of 2010, s 3 and Sch 3 item 32, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
123(6)
If the party is not proficient in English, the Principal Member may give directions in relation to the use of an interpreter in connection with the hearing of the review.
History
S 123(6) amended by No 38 of 2010, s 3 and Sch 3 item 32, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
SECTION 124
SECTION 124 Submissions to SSAT by agency heads
124
The head of an agency that is a party to a review of a decision may make written submissions, but not oral submissions, to the SSAT.
SECTION 125 SSAT hearings on written submissions only
125(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 hearing 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.
History
S 125(1) amended by No 38 of 2010, s 3 and Sch 3 item 33, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
S 125(1) amended by No 33 of 2010, s 3 and Sch 1 item 6, by substituting "the parties" for "those parties that may make oral submissions", applicable in relation to applications for review made on or after 14 April 2010.
125(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.
History
S 125(2) amended by No 38 of 2010, s 3 and Sch 3 item 33, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
125(3)
The time specified under paragraph (2)(d) must be such as to allow a reasonable period for the parties to make written submissions.
125(4)
Despite subsection (1), the SSAT, as constituted for the hearing, may, if it thinks necessary after considering 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 review.
History
S 125(4) amended by No 33 of 2010, s 3 and Sch 1 item 7, by omitting "(other than the head of an agency)" after "permitting the parties", applicable in relation to applications for review made on or after 14 April 2010.
SECTION 126 SSAT hearings without oral submissions by party
126(1)
(Repealed by No 33 of 2010)
History
S 126(1) repealed by No 33 of 2010, s 3 and Sch 1 item 8, applicable in relation to applications for review made on or after 14 April 2010. S 126(1) formerly read:
126(1)
This section applies to a party to a review of a decision (other than the head of an agency).
126(2)
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.
History
S 126(2) amended by No 38 of 2010, s 3 and Sch 3 item 34, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
S 126(2) amended by No 33 of 2010, s 3 and Sch 1 item 9, by substituting "If a party to a review of a decision" for "If the party", applicable in relation to applications for review made on or after 14 April 2010.
126(3)
If:
(a)
the Principal Member has determined that oral 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; 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 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.
History
S 126(3) amended by No 38 of 2010, s 3 and Sch 3 item 35, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
126(4)
If:
(a)
the Principal Member has not determined that oral 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; 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.
History
S 126(4) amended by No 38 of 2010, s 3 and Sch 3 item 35, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
126(5)
If the Principal Member gives an authorisation under subsection (3) or (4), the SSAT may proceed to hear the application in accordance with the authorisation.
History
S 126(5) amended by No 38 of 2010, s 3 and Sch 3 item 36, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
126(6)
The Principal Member may revoke an authorisation under subsection (3) or (4).
History
S 126(6) amended by No 38 of 2010, s 3 and Sch 3 item 36, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
Subdivision BA - Submissions from agency representatives
History
Subdiv BA heading substituted by No 32 of 2011, s 3 and Sch 4 item 35, effective 1 July 2011. For transitional provisions see note under s 108(2). The heading formerly read:
Subdivision BA - Submissions from agency heads
Subdiv BA inserted by No 33 of 2010, s 3 and Sch 1 item 10, applicable in relation to applications for review made on or after 14 April 2010.
SECTION 126A Submissions from agency representatives
126A(1)
The following persons (each of whom is called an
agency representative
) may make written submissions to the SSAT:
(a)
the head of an agency that is a party to a review of a decision;
(b)
the Chief Executive Centrelink, if the Chief Executive Centrelink is a party to a review of a decision;
(c)
the Chief Executive Medicare, if the Chief Executive Medicare is a party to a review of a decision.
History
S 126A(1) substituted by No 32 of 2011, s 3 and Sch 4 item 36, effective 1 July 2011. For transitional provisions see note under s 108(2). S 126A(1) formerly read:
126A(1)
The head of an agency that is a party to a review of a decision may make written submissions to the SSAT.
Agency representative may request permission to make oral submissions etc
126A(2)
The agency representative 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.
History
S 126A(2) amended by No 32 of 2011, s 3 and Sch 4 item 37, by substituting "agency representative" for "head of the agency", effective 1 July 2011. For transitional provisions see note under s 108(2).
S 126A(2) amended by No 38 of 2010, s 3 and Sch 3 item 37, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
126A(3)
The Principal Member may, by writing, grant the request if, in the opinion of the Principal Member, such submissions would assist the SSAT.
History
S 126A(3) amended by No 154 of 2012, s 3 and Sch 3 item 12, by omitting "having regard to the objective laid down by section 110" after "the Principal Member", effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
S 126A(3) amended by No 38 of 2010, s 3 and Sch 3 item 38, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
SSAT may order agency representative to make oral submissions etc
126A(4)
The Principal Member may order the agency representative to make:
(a)
oral submissions to the SSAT; or
(aa)
written submissions to the SSAT; or
(b)
both oral and written submissions to the SSAT;
if, in the opinion of the Principal Member, such submissions would assist the SSAT.
History
S 126A(4) amended by No 154 of 2012, s 3 and Sch 3 items 13 and 14, by inserting para (aa) and omitting "having regard to the objective laid down by section 110" after "the Principal Member", applicable in relation to: (a) hearings pending immediately before 15 December 2012; and (b) hearings commencing after 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
S 126A(4) amended by No 32 of 2011, s 3 and Sch 4 item 38, by substituting "agency representative" for "head of the agency", effective 1 July 2011. For transitional provisions see note under s 108(2).
S 126A(4) amended by No 38 of 2010, s 3 and Sch 3 item 38, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
Oral submissions by telephone etc
126A(5)
For the purposes of subsections (3) and (4), the Principal Member may determine that oral submissions to the SSAT by the agency representative are to be made by telephone or by means of other electronic communications equipment.
History
S 126A(5) amended by No 32 of 2011, s 3 and Sch 4 item 39, by substituting "agency representative" for "head of the agency", effective 1 July 2011. For transitional provisions see note under s 108(2).
S 126A(5) amended by No 38 of 2010, s 3 and Sch 3 item 39, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
126A(6)
Subsection (5) does not limit subsection (3) or (4).
History
S 126A inserted by No 33 of 2010, s 3 and Sch 1 item 10, applicable in relation to applications for review made on or after 14 April 2010.
Subdivision BB - Other evidence provisions
History
Subdiv BB (heading) inserted by No 33 of 2010, s 3 and Sch 1 item 11, applicable in relation to applications for review made on or after 14 April 2010.
SECTION 127
SECTION 127 Evidence on oath or affirmation
127
The SSAT may take evidence on oath or affirmation for the purposes of a review of a decision.
SECTION 128 Provision of further information by Secretary
128(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.
History
S 128(1) amended by No 38 of 2010, s 3 and Sch 3 item 40, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
128(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.
SECTION 128A Power to obtain information or documents
128A(1)
This section applies to a person if the Principal Member believes on reasonable grounds that the person has information or a document that is relevant to a review.
128A(2)
The Principal Member may, by written notice given to the person, require the person:
(a)
to give to the SSAT, within the period and in the manner specified in the notice, any such information; or
(b)
to produce to the SSAT, within the period and in the manner specified in the notice, any such documents.
128A(3)
The period specified in a notice given under subsection (2) must be at least 14 days after the notice is given.
Offence
128A(4)
A person commits an offence if:
(a)
the person is given a notice under subsection (2); and
(b)
the person fails to comply with the notice.
Penalty: Imprisonment for 6 months.
Notice to set out the effect of offence provisions
128A(5)
A notice under subsection (2) must set out the effect of the following provisions:
(a)
subsection (4);
(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).
History
S 128A inserted by No 38 of 2010, s 3 and Sch 3 item 1, applicable in relation to applications for review made on or after 11 May 2010.
SECTION 128B
SECTION 128B Inspecting and copying documents
128B
The following may inspect a document produced under section 128A and may make and retain copies of the whole or a part of the document:
(a)
a member who constitutes, or who is one of the members who constitute, the SSAT for the purposes of the review;
(b)
a member of the staff of the SSAT.
History
S 128B inserted by No 38 of 2010, s 3 and Sch 3 item 1, applicable in relation to applications for review made on or after 11 May 2010.
SECTION 128C Retention of documents
128C(1)
The following may take possession of a document produced under section 128A, and retain it for as long as is reasonably necessary:
(a)
a member who constitutes, or who is one of the members who constitute, the SSAT for the purposes of the review;
(b)
a member of the staff of the SSAT.
128C(2)
The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Principal Member to be a true copy.
128C(3)
The certified copy must be received in all courts and tribunals as evidence as if it were the original.
128C(4)
Until a certified copy is supplied, the Principal Member must provide the person otherwise entitled to possession of the document, or a person authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of the whole or a part of the document.
History
S 128C inserted by No 38 of 2010, s 3 and Sch 3 item 1, applicable in relation to applications for review made on or after 11 May 2010.
SECTION 129 Exercise by Secretary of powers under section 154
129(1)
The Principal Member may ask the Secretary to exercise the Secretary's powers under section 154 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.
History
S 129(1) amended by No 38 of 2010, s 3 and Sch 3 item 41, by substituting "Principal Member" for "Executive Director" (wherever occurring), effective 11 May 2010.
129(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.
Subdivision BC - Directions hearings
History
Subdiv BC heading substituted by No 154 of 2012, s 3 and Sch 3 item 15, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. The heading formerly read:
Subdivision BC - Pre-hearing conferences
Subdiv BC inserted by No 38 of 2010, s 3 and Sch 3 item 2, applicable in relation to applications for review made on or after 11 May 2010.
SECTION 129A Directions hearings
129A(1)
Before the hearing of a review commences, the Principal Member may convene one or more directions hearings 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.
History
S 129A(1) amended by No 154 of 2012, s 3 and Sch 3 item 17, by substituting "directions hearings" for "conferences", effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
129A(2)
At a directions hearing, 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 information is to be given to the SSAT.
History
S 129A(2) amended by No 154 of 2012, s 3 and Sch 3 items 18 and 19, by substituting "directions hearing" for "conference", and substituting "information is to be given to" for "evidence is to be brought before" in para (d), effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
129A(3)
(Repealed by No 154 of 2012)
History
S 129A(3) repealed by No 154 of 2012, s 3 and Sch 3 item 20, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 129A(3) formerly read:
129A(3)
Paragraph (2)(d) does not limit the evidence that may be brought before the SSAT.
129A(4)
(Repealed by No 154 of 2012)
History
S 129A(4) repealed by No 154 of 2012, s 3 and Sch 3 item 20, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 129A(4) formerly read:
Restrictions on disclosure of information obtained at a conference
129A(4)
The Principal Member may make an order directing a party to the review who is present at a conference:
(a)
not to disclose information obtained by the party at the conference; or
(b)
not to disclose information obtained by the party at the conference except in the circumstances, or for the purposes, specified in the order.
129A(5)
(Repealed by No 154 of 2012)
History
S 129A(5) repealed by No 154 of 2012, s 3 and Sch 3 item 20, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 129A(5) formerly read:
129A(5)
A person commits an offence if:
(a)
the person is given an order under subsection (4); and
(b)
the person contravenes the order.
Penalty for contravention of this subsection: Imprisonment for 2 years.
History
S 129A inserted by No 38 of 2010, s 3 and Sch 3 item 2, applicable in relation to applications for review made on or after 11 May 2010.
SECTION 129B Powers of SSAT if parties reach agreement
129B(1)
If:
(a)
at a directions hearing under section 129A 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.
History
S 129B(1) amended by No 154 of 2012, s 3 and Sch 3 item 21, by substituting "directions hearing" for "pre-hearing conference" in para (a), effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
129B(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.
129B(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.
History
S 129B inserted by No 38 of 2010, s 3 and Sch 3 item 2, applicable in relation to applications for review made on or after 11 May 2010.
Subdivision C - The hearing
SECTION 130 Hearing procedure
130(1)
The SSAT, in reviewing a decision:
(a)
is not bound by legal technicalities, legal forms or rules of evidence; and
(b)
is to act as speedily as a proper consideration of the review allows.
(c)
(Repealed by No 154 of 2012)
History
S 130(1) amended by No 154 of 2012, s 3 and Sch 3 items 22 and 23, by substituting "allows." for "allows; and" in para (b) and repealing para (c), effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. Para (c) formerly read:
(c)
in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 110.
130(2)
The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
SECTION 131 Hearing in private
131(1)
The hearing of a review is to be in private.
131(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.
History
S 131(2) amended by No 38 of 2010, s 3 and Sch 3 item 42, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
131(3)
In giving directions under subsection (2), the Principal Member must have regard to the wishes of the parties and the need to protect their privacy.
History
S 131(3) amended by No 38 of 2010, s 3 and Sch 3 item 42, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
SECTION 132 New evidence
132(1)
If an applicant for review of a decision provides to the SSAT evidence that was not available to the original decision-maker or to a person who reviewed the decision, the SSAT may:
(a)
refer the decision to the Secretary for review; and
(b)
adjourn the hearing.
132(2)
The SSAT may determine a review without referring the decision under subsection (1) if the SSAT is satisfied that the applicant had reasonable grounds for not providing the information to the original decision-maker or to a person who reviewed the decision.
SECTION 133 Restrictions on disclosure of information obtained at hearing
133(1)
The Principal Member may make an order directing 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 order.
History
S 133(1) amended by No 38 of 2010, s 3 and Sch 3 item 43, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
133(2)
A person who contravenes an order under subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
133(3)
Strict liability applies to the element of an offence against subsection (2) that an order is an order under subsection (1).
History
S 133(3) inserted by No 137 of 2001, s 3 and Sch 1 item 17, effective 1 October 2001.
Subdivision D - Other procedural matters
SECTION 134 Adjournment of SSAT hearings
134(1)
The SSAT may adjourn the hearing of a review of a decision from time to time.
134(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)
(Repealed by No 154 of 2012)
(c)
a declaration under section 112 is in force in relation to the decision under review.
History
S 134(2) amended by No 154 of 2012, s 3 and Sch 3 item 25, by repealing para (b), effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. Para (b) formerly read:
(b)
the SSAT is satisfied that to grant an adjournment would be inconsistent with the pursuit of the objective laid down by section 110; or
SECTION 135 Dismissal of application for review by SSAT
135(1)
The Principal Member may, on the request of a party or on his or her own initiative, dismiss an application for review of a decision if:
(a)
the decision is not reviewable under this Part; or
(b)
the application is frivolous or vexatious; or
(c)
all of the parties consent; or
(d)
the Principal Member is satisfied:
(i)
after having communicated with each party; or
(ii)
after having made reasonable attempts to communicate with each party and having failed to do so;
or a combination of both, that none of the parties intend to proceed with the application; or
(e)
all of the parties fail to attend the hearing.
135(2)
The Principal Member may dismiss an application under paragraph (1)(b) only if:
(a)
one of the following applies:
(i)
the Principal Member has received and considered submissions from the applicant for review;
(ii)
the Principal Member has otherwise communicated with the applicant in relation to the grounds of the application;
(iii)
the Principal Member has made reasonable attempts to communicate with the applicant in relation to the grounds of the application and has failed to do so; and
(b)
all of the parties (other than the applicant) consent to the dismissal.
135(3)
If the Principal Member dismisses an application under subsection (1) (other than under paragraph (1)(b)), a party to the review may:
(a)
within 28 days after receiving notification that the application has been dismissed; or
(b)
within such longer period as the Principal Member, in special circumstances, allows;
request that the Principal Member reinstate the application.
135(4)
If the Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as he or she considers appropriate in the circumstances.
135(5)
If it appears to the Principal Member that an application has been dismissed under subsection (1) in error, he or she may, on the request of a party to the review or on his or her own initiative, reinstate the application and give such directions as he or she considers appropriate in the circumstances.
135(6)
This section does not apply in relation to a party if the party is the Secretary.
SECTION 136 Dismissal of application for review on request of party
136(1)
An applicant for review may notify the SSAT at any time that the application for review is discontinued or withdrawn.
136(2)
If the applicant orally notifies the SSAT, the person who receives the notification must make a written record of the day on which the notification was given.
136(3)
If notification is given under subsection (1), the Principal Member is taken to have dismissed the application.
136(4)
If the Principal Member dismisses an application under subsection (3), a party to the review may:
(a)
within 28 days after receiving notification that the application has been dismissed; or
(b)
within such longer period as the Principal Member, in special circumstances, allows;
request that the Principal Member reinstate the application.
136(5)
If the Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as he or she considers appropriate in the circumstances.
136(6)
This section does not apply in relation to a party if the party is the Secretary.
SECTION 137
SECTION 137 Presiding member at SSAT hearing
137
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 is to preside at the hearing of the review.
SECTION 138 Decision of questions before SSAT
138(1A)
This section applies if the SSAT is constituted by 2 or more members for the purposes of the review of a decision.
History
S 138(1A) inserted by No 38 of 2010, s 3 and Sch 3 item 4, applicable in relation to applications for review made on or after 11 May 2010.
138(1)
Subject to subsection (2), a question arising before the SSAT on a review is to be decided according to the opinion of a majority of the members constituting the SSAT for the purposes of the review.
138(2)
If, on a question arising on a review, the opinions of the members of the SSAT are equally divided, the question is to be decided according to the opinion of the member presiding.
SECTION 139 Directions as to procedure for hearings
139(1)
The Principal Member:
(a)
may give general directions as to the procedure to be followed by the SSAT in connection with the review of decisions under the family assistance law; and
(b)
may give directions as to the procedure to be followed by the SSAT in connection with a particular review.
History
S 139(1) amended by No 38 of 2010, s 3 and Sch 3 item 47, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
S 139(1) amended by No 146 of 2006, s 3 and Sch 5 item 87, by substituting para (a), effective 1 July 2008. Para (a) formerly read:
(a)
may give general directions as to the procedure to be followed by the SSAT in connection with the review of:
(i)
decisions under the family assistance law; or
(ii)
decisions under subsection 91A(3) of the Child Support Assessment Act 1989; and
S 139(1) amended by No 45 of 2000, s 3 Sch 2 item 119, by substituting para (a), effective 1 July 2000. For transitional provisions see note under s 69. Para (a) formerly read:
(a)
may give general directions as to the procedure to be followed by the SSAT in connection with the review of decisions under the family assistance law; and
139(2)
A direction under subsection (1) must not be inconsistent with any provision of the family assistance law.
139(3)
A direction under paragraph (1)(b) may be given before or after the hearing of the particular review has commenced.
139(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 on the hearing of the review.
139(5)
A direction under subsection (4) must not be inconsistent with:
(a)
any provision of the family assistance law; or
(aa)
(Repealed by No 146 of 2006)
(b)
a direction under subsection (1) of this section.
History
S 139(5) amended by No 146 of 2006, s 3 and Sch 5 item 88, by omitting para (aa), effective 1 July 2008. Para (aa) formerly read:
(aa)
subsection 91A(3) of the Child Support (Assessment) Act 1989; or
S 139(5) amended by No 45 of 2000, s 3 Sch 2 item 120, by inserting para (aa), effective 1 July 2000. For transitional provisions see note under s 69.
139(6)
A direction under subsection (4) may be given before or after the hearing of the particular review has commenced.
139(7)
(Repealed by No 154 of 2012)
History
S 139(7) repealed by No 154 of 2012, s 3 and Sch 3 item 27, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3. S 139(7) formerly read:
139(7)
Directions under this section must have due regard to the objective laid down by section 110.
SECTION 140 Costs of review
140(1)
Subject to subsection (4), a party to a review must bear any expenses incurred by the party in connection with the review.
140(2)
The SSAT may determine that the Commonwealth is to pay the reasonable costs that are:
(a)
incurred by a party for travel and accommodation in connection with the review; and
(b)
specified in the determination.
140(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 is to pay the costs of the provision of the service.
140(4)
If the SSAT makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.
Subdivision E - Notification of decisions
SECTION 141 Procedure following SSAT decision
SSAT affirms decisions
141(1A)
If the SSAT makes a decision on a review and the decision is of a kind mentioned in paragraph 113(1)(a), 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 under 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 connection with 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.
History
S 141(1A) inserted by No 33 of 2010, s 3 and Sch 1 item 12, applicable in relation to applications for review made on or after 14 April 2010.
141(1B)
If the SSAT does not give a written statement to a party under subparagraph (1A)(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.
History
S 141(1B) inserted by No 33 of 2010, s 3 and Sch 1 item 12, applicable in relation to applications for review made on or after 14 April 2010.
141(1C)
The SSAT must comply with a request under subsection (1B) within 14 days after the day on which it receives the request.
History
S 141(1C) inserted by No 33 of 2010, s 3 and Sch 1 item 12, applicable in relation to applications for review made on or after 14 April 2010.
SSAT varies decisions or sets decisions aside
141(1)
If the SSAT makes a decision on a review and the decision is of a kind mentioned in paragraph 113(1)(b) or (c), 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 connection with 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.
History
S 141(1) amended by No 33 of 2010, s 3 and Sch 1 item 13, by substituting "If the SSAT makes a decision on a review and the decision is of a kind mentioned in paragraph 113(1)(b) or (c)," for "When the SSAT makes its decision on a review,", applicable in relation to applications for review made on or after 14 April 2010.
Notice of further review right
141(2)
When the SSAT determines a review, the Principal Member must give each party to the review (other than a head of an agency, the Chief Executive Centrelink or the Chief Executive Medicare) 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 Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision.
History
S 141(2) amended by No 32 of 2011, s 3 and Sch 4 item 40, by substituting "(other than a head of an agency, the Chief Executive Centrelink or the Chief Executive Medicare)" for "(other than a head of an agency)", effective 1 July 2011. For transitional provisions see note under s 108(2).
S 141(2) amended by No 38 of 2010, s 3 and Sch 3 item 48, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
141(3)
A failure to comply with subsection (2) in relation to a decision of the SSAT does not affect the validity of the decision.
SECTION 141A Notice by Secretary of SSAT decision relating to a determination of conditional eligibility for child care benefit by fee reduction etc.
141A(1)
This section applies if:
(a)
the SSAT makes a decision on a review in respect of an individual claiming child care benefit by fee reduction for care provided by an approved child care service to a child; and
(b)
the decision on review is to vary, or set aside and substitute a new decision for one of the following decisions:
(i)
a determination of conditional eligibility;
(ii)
a weekly limit of hours, CCB % or schooling % applicable to the individual;
(iia)
a determination whether the individual is eligible for the special grandparent rate for the child;
(iii)
a determination of rate under subsection 81(2) or (3) of the Family Assistance Act; and
(c)
on the day that the SSAT decision is made:
(i)
the service is still providing care to the child; and
(ii)
a determination of conditional eligibility is still in force in respect of the individual with effect that the individual is conditionally eligible.
History
S 141A amended by No 118 of 2007, s 3 and Sch 1 items 61 and 62, by renumbering as s 141A(1), substituting "This section applies if:" for "If:" and substituting all the words after para (c)(i), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. The words formerly read:
(ii)
a determination of conditional eligibility is still in force in respect of the individual with the effect that the individual is conditionally eligible;
the Secretary must give notice of the SSAT decision to the service. The notice must state the effect of the decision.
S 141A amended by No 132 of 2004, s 3 and Sch 4 item 37, by inserting para (b)(iia), applicable to sessions of care provided in a week that commences after 1 January 2005.
S 141A inserted by No 45 of 2000, s 3 Sch 2 item 121, effective 1 July 2000. For transitional provisions see note under s 69.
141A(2)
The Secretary:
(a)
must give notice of an SSAT decision mentioned in subparagraph (1)(b)(iii) to the service; and
(b)
must state in the notice the effect of the decision; and
(c)
may give the notice by making it available to the service using an electronic interface.
History
S 141A(2) inserted by No 118 of 2007, s 3 and Sch 1 item 63, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
141A(3)
The Secretary may make notice of an SSAT decision mentioned in paragraph (1)(b) (other than subparagraph (1)(b)(iii)) available to the service, including by making the notice available to the service using an electronic interface.
History
S 141A(3) inserted by No 118 of 2007, s 3 and Sch 1 item 63, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Subdivision F - Correction of errors in decisions or statements of reasons
History
Subdiv F inserted by No 38 of 2010, s 3 and Sch 3 item 5, applicable in relation to decisions made on or after 11 May 2010.
SECTION 141B Correction of errors in decisions or statements of reasons
Correction of errors
141B(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.
141B(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
141B(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.
History
S 141B inserted by No 38 of 2010, s 3 and Sch 3 item 5, applicable in relation to decisions made on or after 11 May 2010.
Subdivision G - Restrictions on disclosure of information
History
Subdiv G inserted by No 154 of 2012, s 3 and Sch 3 item 28, effective 15 December 2012. No 154 of 2012, s 3 and Sch 3 item 159 contains the following application and transitional provisions:
159 Application of amendments relating to non-disclosure orders under the
A New Tax System (Family Assistance) (Administration) Act 1999
(1)
An order given to a person under subsection 120(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 before the day on which this item commences continues to have effect on and after that day:
(a)
as if subsections 120(2), (3) and (4) of that Act had not been repealed by this Act; and
(b)
as if, on and after that day, the defence in subitem (4) existed in relation to an offence under subsection 120(4) of that Act.
(2)
An order given to a person under subsection 129A(4) of the A New Tax System (Family Assistance) (Administration) Act 1999 before the day on which this item commences continues to have effect on and after that day:
(a)
as if subsections 129A(4) and (5) of that Act had not been repealed by this Act; and
(b)
as if, on and after that day, the defence in subitem (4) existed in relation to an offence under subsection 129A(5) of that Act.
(3)
An order given to a person under subsection 133(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 before the day on which this item commences continues to have effect on and after that day:
(a)
as if section 133 of that Act had not been repealed by this Act; and
(b)
as if, on and after that day, the defence in subitem (4) existed in relation to an offence under subsection 133(2) of that Act.
(4)
An order referred to in this item does not apply to information which the person to whom the order was given knew before the disclosure of the information was made to the person.
Note:
A defendant bears an evidential burden in relation to the matter in subitem (4): see subsection 13.3(3) of the Criminal Code.
SECTION 141C Orders restricting disclosure of information
141C(1)
The Principal Member may make an order directing a person:
(a)
not to disclose information specified in the order; or
(b)
not to disclose information specified in the order except in the circumstances, or for the purposes, specified in the order; or
(c)
not to disclose information specified in the order, except to a specified person or class of persons.
141C(2)
An order may only specify information that has been disclosed to the person for purposes relating to a review under this Part.
141C(3)
A person commits an offence if:
(a)
the Principal Member makes an order under subsection (1) in relation to the person; and
(b)
the person contravenes the order.
Penalty: Imprisonment for 2 years.
141C(4)
An order made under subsection (1) in relation to a person does not apply to information which the person knew before the disclosure referred to in subsection (2) was made.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.
History
S 141C inserted by No 154 of 2012, s 3 and Sch 3 item 28, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
SECTION 141D Varying an order to permit certain disclosures
141D(1)
A person in relation to whom an order has been made under subsection 141C(1) may request the Principal Member to vary the order to allow the person to disclose particular information specified in the order:
(a)
in particular circumstances or for particular purposes; or
(b)
to a particular person or class of persons.
141D(2)
The Principal Member may vary the order in accordance with the request.
141D(3)
This section does not limit the Principal Member's power to vary or revoke an order.
Note:
For variation and revocation apart from under this section, see subsection 33(3) of the Acts Interpretation Act 1901.
History
S 141D inserted by No 154 of 2012, s 3 and Sch 3 item 28, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
SECTION 141E Orders restricting secondary disclosures of information
141E(1)
If an order (the
primary order
) under subsection 141C(1) directs a person not to disclose information specified in the order, except to any of the following (an
authorised recipient
):
(a)
a specified person;
(b)
a member of a specified class of persons;
the Principal Member may make another order, directing an authorised recipient not to disclose the information specified in the primary order.
141E(2)
A person commits an offence if:
(a)
the Principal Member makes an order under subsection (1) in relation to the person; and
(b)
the person contravenes the order.
Penalty: Imprisonment for 2 years.
141E(3)
An order made under subsection (1) in relation to a person does not apply to information which the person knew before the disclosure of the information in accordance with the primary order was made.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
History
S 141E inserted by No 154 of 2012, s 3 and Sch 3 item 28, effective 15 December 2012. For application and transitional provisions see note under Subdiv G heading of Part 5 Div 3.
Division 4 - Review by the Administrative Appeals Tribunal
History
Div 4 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
Subdivision A - Right to review by AAT
History
Subdiv A repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
SECTION 142
142
Review of decisions by AAT
(Repealed by No 60 of 2015)
History
S 142 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 142 formerly read:
SECTION 142 Review of decisions by AAT
142(1)
If:
(a)
a decision has been reviewed by the SSAT; and
(b)
the decision has been affirmed, varied or set aside by the SSAT;
the Secretary or a person affected by the decision made by the SSAT may apply to the AAT for review of that decision.
Note:
If an application is made under this section for review of a decision about a person's entitlement to child care benefit, and a decision has also been made about the person's entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.
History
S 142(1) amended by No 50 of 2009, s 3 and Sch 2 item 17, by substituting the note, applicable in relation to each application made on or after 24 June 2009:
(a) under section 109A, 111 or 142 of the A New Tax System (Family Assistance) (Administration) Act 1999; and
(b) for review of a decision relating to an individual's entitlement to child care benefit.
The note formerly read:
Note:
If an application is made for a review of a decision relating to a person's child care benefit entitlement for an income year under this section and the review affects the person's entitlement to child care tax rebate for the year, the person's entitlement to that rebate is automatically reviewed: see Division 5.
S 142(1) amended by No 53 of 2008, s 3 and Sch 5 item 15, by inserting the note at the end, applicable to decisions made after 25 June 2008.
142(2)
For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a)
where the SSAT affirms a decision-that decision as affirmed; and
(b)
where the SSAT varies a decision-that decision as varied; and
(c)
where the SSAT sets a decision aside and substitutes a new decision-the new decision; and
(d)
where the SSAT sets a decision aside 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.
142(3)
Subsection (1) has effect subject to section
29 of the
Administrative Appeals Tribunal Act 1975.
142(4)
If:
(a)
the AAT sets aside a decision of the SSAT that it reviews under this section; and
(b)
the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
142(5)
If:
(a)
the decision reviewed by the SSAT is a care percentage decision; and
(b)
a review of a decision carried out by the AAT under the
Administrative Appeals Tribunal Act 1975 has involved (wholly or partly) a review of the determination to which the care percentage decision relates;
then, despite section 43 of that Act, the AAT must not vary the decision made by the SSAT, or set that decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.
History
S 142(5) inserted by No 65 of 2010, s 3 and Sch 2 item 36, effective 1 July 2010.
Former s 142(5) repealed by No 146 of 2006, s 3 and Sch 5 item 89, effective 1 July 2008. S 142(5) formerly read:
142(5)
If a decision is made under subsection 91A(3) of the Child Support (Assessment) Act 1989 about a particular agreement, then, for the purposes of the application of the Administrative Appeals Tribunal Act 1975 to, or to a matter arising out of, the decision, both of the parties to the agreement are taken to be persons whose interests are affected by the decision.
SECTION 143
143
Variation of decision under section 142 before AAT review completed
(Repealed by No 60 of 2015)
History
S 143 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 143 formerly read:
SECTION 143 Variation of decision under section 142 before AAT review completed
143(1)
If an officer varies a decision after an application has been made under section 142 to the AAT for review of that decision but before the determination of the application, the application is to 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.
143(2)
If an officer sets a decision aside and substitutes a new decision after an application has been made under section 142 to the AAT for review of the original decision but before the determination of the application, the application is to 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.
143(3)
If:
(a)
a person applies to the AAT for review of a decision under section 142; 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.
SECTION 144
144
Review by AAT of other decisions
(Repealed by No 60 of 2015)
History
S 144 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 144 formerly read:
SECTION 144 Review by AAT of other decisions
144(1A)
If:
(a)
a decision of a kind mentioned in subsection (1) (decisions in relation to child care services and registered carers) has been reviewed under section 109A; and
(b)
the decision has been affirmed, varied or set aside and substituted by the Secretary or an authorised review officer under subsection 109A(2);application may also be made to the AAT for the review of the decision.
History
S 144(1A) inserted by No 118 of 2007, s 3 and Sch 3 item 10, applicable in relation to decisions made after 29 June 2007.
144(1B)
For the purposes of subsection (1A), the decision made by the Secretary or authorised review officer is taken to be:
(a)
where the Secretary or authorised review officer affirms a decision - that decision as affirmed; and
(b)
where the Secretary or authorised review officer varies a decision - that decision as varied; and
(c)
where the Secretary or authorised review officer sets a decision aside and substitutes a new decision - the new decision.
History
S 144(1B) inserted by No 118 of 2007, s 3 and Sch 3 item 10, applicable in relation to decisions made after 29 June 2007.
144(1C)
If a decision of a kind mentioned in subsection (1) (decisions in relation to child care services and registered carers) has been made by:
(a)
the Secretary personally; or
(b)
another agency head himself or herself in the exercise of a delegated power; or
(c)
the Chief Executive Centrelink in the exercise of a delegated power; or
(d)
the Chief Executive Medicare in the exercise of a delegated power;
application may also be made to the AAT for the review of the decision.
History
S 144(1C) substituted by No 32 of 2011, s 3 and Sch 4 item 41, effective 1 July 2011. For transitional provisions see note under s 108(2). S 144(1C) formerly read:
144(1C)
If a decision of a kind mentioned in subsection (1) (decisions in relation to child care services and registered carers) has been made by the Secretary personally, or by another agency head himself or herself in the exercise of a delegated power, application may also be made to the AAT for the review of the decision.
S 144(1C) inserted by No 118 of 2007, s 3 and Sch 3 item 10, applicable in relation to decisions made after 29 June 2007.
144(1)
Each of the following is a decision in relation to which an application may be made under subsection (1A) or (1C):
(a)
a decision under section 195 not to approve a child care service for the purposes of the family assistance law or to approve the service from a particular day;
(b)
a decision under subsection 199(2) to impose another condition for the continued approval of an approved child care service;
(c)
a decision under subsection 200(1) to do one or more of the things mentioned in paragraphs (a) to (h) of that subsection in relation to an approved child care service;
(d)
a decision under subsection 200(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(da)
a decision under subsection 201A(1) to suspend the approval of an approved child care service from a particular day;
(db)
a decision under subsection 201A(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(e)
a decision under subsection 202(2) not to cancel an approved child care service's approval;
(f)
a decision under subsection 202(3) to cancel an approved child care service's approval;
(g)
a decision under subsection 202(4) to cancel an approved child care service's approval, but only if the service made submissions under paragraph 203(1)(e) in relation to the cancellation;
(h)
a decision under paragraph 205(3)(a) not to exempt a specified child care service from a specified eligibility rule;
(i)
a decision under section 207 to:
(i)
refuse to allocate any child care places to an approved child care service; or
(ii)
refuse to allocate the number of child care places an approved child care service has applied for under that section;
unless the decision is based on guidelines of the Minister of the kind mentioned in paragraph 206(c);
(ia)
a decision under section 207A to reduce the number of child care places allocated to an approved child care service;
(j)
a decision under subsection 210(1) not to approve an individual as a registered carer for the purposes of the family assistance law;
(k)
a decision under subsection 212(1) as to when the approval of an applicant as a registered carer is taken to have come into force;
(l)
a decision under subsection 212(3) as to when the approval of an applicant as a registered carer is taken not to have been in force;
(m)
a decision under subsection 213(2) to impose another condition for the continued approval of an individual as a registered carer;
(n)
a decision under subsection 214(1) to do one or more of the things mentioned in paragraphs (a) to (d) of that subsection in relation to a registered carer;
(o)
a decision under subsection 216(3) to cancel a registered carer's approval;
(oa)
a decision under subsection 219TSQ(1) to suspend an approved child care service's approval;
(ob)
a decision under subsection 219TSQ(3) to revoke the suspension of the approval of an approved child care service from a particular day;
(p)
a decision under subsection 57(1) of the Family Assistance Act.
History
S 144(1) amended by no 118 of 2007, s 3 and Sch 3 item 12, by inserting paras (da) and (db), effective 29 June 2007.
S 144(1) amended by No 118 of 2007, s 3 and Sch 3 item 11, by substituting "Each of the following is a decision in relation to which an application may be made under subsection (1A) or (1C)" for "Application may also be made to the AAT for review of the following decisions", applicable in relation to decisions made after 29 June 2007
S 144(1) amended by No 118 of 2007, s 3 and Sch 2 item 5, by inserting paras (oa) and (ob), effective 1 July 2007.
S 144(1) amended by No 118 of 2007, s 3 and Sch 1 item 64, by substituting "paragraphs (a) to (h)" for "paragraphs (a) to (e)" in para (c), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 144(1) amended by No 36 of 2006, s 3 and Sch 5 item 2, by inserting para (ia), applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 4 May 2006.
S 144(1) amended by No 30 of 2003, s 3 and Sch 2 item 41, by substituting "57(1)" for "53(3)" in para (p), effective 15 April 2003.
S 144(1) amended by No 45 of 2000, s 3 Sch 2 items 123 and 124, by adding "or to approve the service from a particular day" at the end of para (a) and "from a particular day'' at the end of para (d), effective 1 July 2000. For transitional provisions see note under s 69.
144(2)
Subsection (1) has effect subject to section 29 of the Administrative Appeals Tribunal Act 1975.
144(3)
If:
(a)
the AAT sets aside a decision that it reviews under this section; and
(b)
the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.
SECTION 145
145
Variation of decision under section 144 before AAT review completed
(Repealed by No 60 of 2015)
History
S 145 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 145 formerly read:
SECTION 145 Variation of decision under section 144 before AAT review completed
145(1)
If an officer varies a decision after an application has been made under section 144 to the AAT for review of that decision but before the determination of the application, the application is to be treated as if the application were an application for review of the decision as varied.
145(2)
If an officer sets a decision aside and substitutes a new decision after an application has been made under section 144 to the AAT for review of the original decision but before the determination of the application, the application is to be treated as if the application were an application for review of the new decision.
145(3)
If:
(a)
a person applies to the AAT for review of a decision under section 144; and
(b)
before determination of the review, an officer varies the decision or setsthe decision aside and substitutes a new decision;
the applicant may, instead of proceeding with the application under subsection (1) or (2), withdraw the application.
SECTION 146
146
Settlement of proceedings before the AAT
(Repealed by No 60 of 2015)
History
S 146 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 146 formerly read:
SECTION 146 Settlement of proceedings before the AAT
146(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.
146(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.
Subdivision B - Modification of Administrative Appeals Tribunal Act in relation to section 142 review applications
History
Subdiv B repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015.
SECTION 147
147
Notice of application for review
(Repealed by No 60 of 2015)
History
S 147 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 147 formerly read:
SECTION 147 Notice of application for review
147
The AAT Act applies to an application under section 142 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 142).
SECTION 148
148
Parties to a review by the AAT
(Repealed by No 60 of 2015)
History
S 148 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 148 formerly read:
SECTION 148 Parties to a review by the AAT
148
The AAT Act applies to an application under section 142 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.
SECTION 149
149
Lodgment of documents with the AAT
(Repealed by No 60 of 2015)
History
S 149 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 149 formerly read:
SECTION 149 Lodgment of documents with the AAT
149(1)
The AAT Act applies to an application under section 142 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 officer who made the decision that was reviewed by the SSAT.
149(2)
If a person applies to the AAT under section 142 of this Act for review of a decision, the Secretary is taken to have complied with the Secretary's obligations under paragraph 37(1)(a) of the AAT Act in relation to the decision if the Secretary gives the AAT 2 copies of the statement prepared by the SSAT under subparagraph 141(1A)(c)(ii) or paragraph 141(1)(a) of this Act.
History
S 149(2) amended by No 98 of 2014, s 3 and Sch 2 item 1, by substituting "2 copies of the statement prepared by the SSAT under subparagraph 141(1A)(c)(ii) or paragraph 141(1)(a) of this Act" for "the prescribed number of copies of the statement prepared by the SSAT under paragraph 141(1)(a) of this Act", effective 12 September 2014.
149(3)
Subsection (2) does not limit the powers of the AAT under section 38 of the AAT Act.
SECTION 150
150
Power of AAT to obtain additional information
(Repealed by No 60 of 2015)
History
S 150 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 150 formerly read:
SECTION 150 Power of AAT to obtain additional information
150
The AAT Act applies to an application under section 142 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 withthe AAT were references to the Principal Member.
S 150 amended by No 38 of 2010, s 3 and Sch 3 item 49, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
SECTION 151
151
Operation and implementation of the decision under review
(Repealed by No 60 of 2015)
History
S 151 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 151 formerly read:
SECTION 151 Operation and implementation of the decision under review
151(1)
The AAT Act applies to an application under section 142 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.
151(2)
The AAT Act applies to an application under section 142 for review of a decision as if references in section 41 of the AAT Act to the decision to which the relevant proceeding relates 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 as a result of that reconsideration; and
(ii)
the original decision.
151(3)
For the purposes of subsection (2), the original decision is the decision that was reviewed by the SSAT.
SECTION 152
152
Failure of party to appear
(Repealed by No 60 of 2015)
History
S 152 repealed by No 60 of 2015, s 3 and Sch 5 item 23, effective 1 July 2015. S 152 formerly read:
SECTION 152 Failure of party to appear
152
The AAT Act applies to the review of a decision on an application under section 142 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.
Division 5 - Automatic review of child care rebate decisions
History
Div 5 repealed by No 22 of 2017, s 3 and Sch 1 item 182, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Div 5 (heading) substituted by No 50 of 2009, s 3 and Sch 1 item 14, effective 24 June 2009. For transitional provisions, see note under Div 4AA heading. Div 5 (heading) formerly read:
Division 5 - Automatic review of child care tax rebate decisions
Div 5 inserted by No 53 of 2008, s 3 and Sch 5 item 16, applicable to decisions made after 25 June 2008.
SECTION 152A
152A
Decisions relating to entitlement to child care benefit by fee reduction or for past period
(Repealed by No 22 of 2017)
History
S 152A repealed by No 22 of 2017, s 3 and Sch 1 item 182, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 152A formerly read:
SECTION 152A Decisions relating to entitlement to child care benefit by fee reduction or for past period
152A
If:
(a)
an application (the
original application
) has been made under section 109A, 111 or 128 for review of a decision (the
CCB decision
) relating to an individual's entitlement to child care benefit; and
(b)
the CCB decision was in respect of one or more sessions of care provided by an approved child care service to a child during a period in an income year; and
(c)
a decision (the
CCR decision
) has been made under section 65EA, 65EB or 65EC in relation to the individual's entitlement to child care rebate in respect of the child and the period; and
(d)
the result of the review varies or sets aside the CCB decision (whether or not it also substitutes a new decision);
this Act has effect as if the original application included an application for review of the CCR decision.
S 152A amended by No 60 of 2015, s 3 and Sch 5 item 24, by substituting "128" for "142" in para (a), effective 1 July 2015.
S 152A substituted by No 50 of 2009, s 3 and Sch 2 item 18, applicable in relation to each application made on or after 24 June 2009:
(a) under section 109A, 111 or 142 of the A New Tax System (Family Assistance) (Administration) Act 1999; and
(b) for review of a decision relating to an individual's entitlement to child care benefit.
S 152A formerly read:
SECTION 152A Automatic review of child care tax rebate decisions
152A(1)
This section applies if:
(a)
an application (the
original application
) has been made under section 109A, 111 or 142 for review of a decision relating to a person's child care benefit entitlement in respect of one or more sessions of care provided by an approved child care service to a child during an income year; and
(b)
an amount of child care tax rebate is applicable in respect of the person and the child for the income year; and
(c)
the result of the review affects the person's child care benefit entitlement in respect of the session or sessions of care.
152A(2)
This Act has effect as if the original application included an application for review of any determination of entitlement for child care tax rebate for the person in respect of the child for the income year.
S 152A inserted by No 53 of 2008, s 3 and Sch 5 item 16, applicable to decisions made after 25 June 2008.
SECTION 152B
152B
Decisions relating to entitlement to child care benefit by single payment/in substitution
(Repealed by No 22 of 2017)
History
S 152B repealed by No 22 of 2017, s 3 and Sch 1 item 182, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 152B formerly read:
SECTION 152B Decisions relating to entitlement to child care benefit by single payment/in substitution
152B
If:
(a)
an application (the
original application
) has been made under section 109A, 111 or 128 for review of a decision (the
CCB decision
) relating to an individual's entitlement to child care benefit by single payment/in substitution; and
(b)
the CCB decision was in respect of one or more sessions of care provided by an approved child care service to a child during a period; and
(c)
a decision (the
CCR decision
) has been made under section 65ECA in relation to the individual's entitlement to child care rebate in respect of the child and the period; and
(d)
the result of the review varies or sets aside the CCB decision (whether or not it also substitutes a new decision);
this Act has effect as if the original application included an application for review of the CCR decision.
S 152B amended by No 60 of 2015, s 3 and Sch 5 item 24, by substituting "128" for "142" in para (a), effective 1 July 2015.
S 152B inserted by No 50 of 2009, s 3 and Sch 2 item 18, applicable in relation to each application made on or after 24 June 2009:
(a) under section 109A, 111 or 142 of the A New Tax System (Family Assistance) (Administration) Act 1999; and
(b) for review of a decision relating to an individual's entitlement to child care benefit.
Division 6 - Date of effect of reviews under the child support law
History
Div 6 inserted by No 65 of 2010, s 3 and Sch 2 item 37, effective 1 July 2010.
SECTION 152C
Date of effect of decisions on objections under the child support law that apply for family assistance purposes
152C(1)
This section applies if:
(a)
a person lodges, under section 80A of the Child Support (Registration and Collection) Act 1988, an objection to a care percentage decision (within the meaning of that Act); and
(b)
the consideration of the objection under that Act involves (wholly or partly) a consideration of a determination that:
(i)
was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or
(ii)
has effect, under section 54K of the Child Support (Assessment) Act 1989, as if it were a determination made under such a provision; and
(c)
the objection was lodged more than 52 weeks after notice of the care percentage decision referred to in paragraph (a) of this subsection was given; and
(d)
the decision (the
review decision
) on the objection has the effect of varying the determination or substituting a new determination; and
(e)
the determination as varied or substituted has effect, under sections 35T and 35U of the Family Assistance Act, as if it were a determination made under Subdivision D of Division 1 of Part 3 of that Act.
152C(2)
The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is:
(a)
unless paragraph (b) of this subsection applies - the date that would give full effect to the review decision; or
(b)
if the date referred to in paragraph (a) of this subsection is earlier than the first day of the income year before the income year in which the objection was lodged - that first day.
152C(3)
If the Secretary is satisfied that there are special circumstances that prevented the objection from being lodged within the period referred to in paragraph (1)(c), the Secretary may determine that subsection (1) applies as if the reference to 52 weeks in that paragraph were a reference to such longer period as the Secretary determines to be appropriate.
History
S 152C inserted by No 65 of 2010, s 3 and Sch 2 item 37, effective 1 July 2010.
SECTION 152D
Date of effect of AAT reviews under the child support law that apply for family assistance purposes
[
CCH Note:
S 152D heading will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "certain ART reviews" for "AAT reviews", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
152D(1)
This section applies if:
(a)
a person applies to the AAT, under section 89 of the Child Support (Registration and Collection) Act 1988, for review of a decision (the
original decision
); and
(b)
the review of the original decision involves (wholly or partly) a review of a determination that:
(i)
was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or
(ii)
has effect, under section 54K of the Child Support (Assessment) Act 1989, as if it were a determination made under such a provision; and
(c)
the application for review of the original decision was made more than 13 weeks after notice of the original decision was given; and
(d)
the decision (the
review decision
) on the review has the effect of varying the determination or substituting a new determination; and
(e)
the determination as varied or substituted has effect, under sections 35T and 35U of the Family Assistance Act, as if it were a determination made under Subdivision D of Division 1 of Part 3 of that Act.
[
CCH Note:
S 152D(1) will be amended by No 38 of 2024, s 3 and Sch 3 items 50 and 51, by inserting para (aa) and substituting "90 days" for "13 weeks" in para (c), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Actdoes not commence. Para (aa) will read:
(aa)
the application for review of the original decision is not a guidance and appeals panel application; and
]
[
CCH Note:
S 152D(1) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "AAT" in para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 152D(1) amended by No 60 of 2015, s 3 and Sch 5 item 26, by substituting "AAT" for "SSAT" in para (a), effective 1 July 2015.
152D(2)
The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is:
(a)
unless paragraph (b) of this subsection applies - the date that would give full effect to the review decision; or
(b)
if the date referred to in paragraph (a) of this subsection is earlier than the first day of the income year before the income year in which the application for review was made - that first day.
152D(3)
If the Secretary is satisfied that there are special circumstances that prevented the application for review from being made within the period referred to in paragraph (1)(c), the Secretary may determine that subsection (1) applies as if the reference to 13 weeks in that paragraph were a reference to such longer period as the Secretary determines to be appropriate.
[
CCH Note:
S 152D(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 52, by substituting "90 days" for "13 weeks", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 152D inserted by No 65 of 2010, s 3 and Sch 2 item 37, effective 1 July 2010.
PART 6 - PROVISIONS RELATING TO INFORMATION
Division 1 - Information gathering
SECTION 153
Application of Division
153(1)
This Division:
(a)
binds the Crown in all its capacities; and
(b)
extends to:
(i)
acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(ii)
all persons, irrespective of their nationality or citizenship.
153(2)
(Repealed by No 26 of 2018)
History
S 153(2) repealed by No 26 of 2018, s 3 and Sch 17 item 4, applicable in relation to requirements made on or after 2 July 2018. S 153(2) formerly read:
153(2)
This Division does not require a person to give information or produce a document or records to the extent that in doing so the person would contravene a law of the Commonwealth (other than a law of a Territory).
S 153(2) amended by No 118 of 2007, s 3 and Sch 3 item 13, by inserting "or records" after "document", effective 29 June 2007.
153(3)
This Division does not make the Crown liable to be prosecuted for an offence.
SECTION 153A
153A
Reasonable belief needed to require information, documents or records
The Secretary can only require a person to:
(a)
give information; or
(b)
produce a document; or
(c)
produce records;
under this Division if the Secretary reasonably believes that the person will be able to give the information or produce the document or records.
History
S 153A inserted by No 26 of 2018, s 3 and Sch 17 item 5, applicable in relation to requirements made on or after 2 July 2018.
SECTION 154
General power to obtain information
154(1)
The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to either or both of the following matters:
(a)
whether the person, or any other person, whom the Secretary has determined to be entitled to be paid family assistance is or was eligible for the family assistance, or for family assistance of the amount determined;
(b)
whether the person or any other person to whom a payment of family assistance has been made was entitled to the payment.
History
S 154(1) amended by No 26 of 2018, s 3 and Sch 17 item 6, by omitting "that is in the person's custody or under the person's control" after "produce a document", applicable in relation to requirements made on or after 2 July 2018.
S 154(1) amended by No 30 of 2003, s 3 and Sch 2 item 42, by substituting "a specified agency" for "an officer", effective 15 April 2003.
154(2)
The Secretary may require a person to:
(a)
give information; or
(b)
produce a document;
to a specified agency if the Secretary considers that the information or document may be relevant to whether a person who has claimed family assistance, but who has not had the claim determined, is eligible for family assistance.
History
S 154(2) amended by No 26 of 2018, s 3 and Sch 17 item 7, by omitting "that is in the person's custody or under the person's control" after "produce a document" from para (b), applicable in relation to requirements made on or after 2 July 2018.
S 154(2) substituted by No 22 of 2017, s 3 and Sch 1 item 183, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 154(2) formerly read:
154(2)
The Secretary may require a person to:
(a)
give information; or
(b)
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 either or both of the following matters:
(c)
whether a person who has claimed family assistance (other than an individual who has claimed child care benefit by fee reduction), but who has not had the claim determined, is eligible for family assistance;
(d)
the amount of child care benefit that a person is eligible for.
S 154(2) amended by No 30 of 2003, s 3 and Sch 2 item 42, by substituting "a specified agency" for "an officer", effective 15 April 2003.
S 154(2) inserted by No 45 of 2000, s 3 Sch 2 item 125, effective 1 July 2000. For transitional provisions see note under s 69.
154(3)
The Secretary may require a person to:
(a)
give information; or
(b)
produce a document;
to a specified agency if the Secretary considers that the information or document may be relevant to whether an approved provider is eligible for ACCS (child wellbeing) or the amount of ACCS (child wellbeing) an approved provider is entitled to be paid.
History
S 154(3) amended by No 26 of 2018, s 3 and Sch 17 item 7, by omitting "that is in the person's custody or under the person's control" after "produce a document" from para (b), applicable in relation to requirements made on or after 2 July 2018.
S 154(3) substituted by No 22 of 2017, s 3 and Sch 1 item 183, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 154(3) formerly read:
154(3)
The Secretary may require a person to:
(a)
give information; or
(b)
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 either or both of the following matters:
(c)
whether an individual who has claimed payment of child care benefit by fee reduction is conditionally eligible;
(d)
if a determination were to be, or has been, made that the individual is so conditionally eligible:
(i)
what weekly limit of hours, CCB % or schooling % would be, or is, applicable to the individual; or
(ii)
whether the individual would be, or is, eligible for the special grandparent rate for a child.
S 154(3) amended by No 132 of 2004, s 3 and Sch 4 item 38, by substituting para (d), applicable to sessions of care provided in a week that commences after 1 January 2005. Para (d) formerly read:
(d)
if a determination were to be, or has been, made that the individual is so conditionally eligible, what weekly limit of hours, CCB % or schooling % would be, or is, applicable to the individual.
S 154(3) amended by No 30 of 2003, s 3 and Sch 2 item 42, by substituting "a specified agency" for "an officer", effective 15 April 2003.
S 154(3) inserted by No 45 of 2000, s 3 Sch 2 item 125, effective 1 July 2000. For transitional provisions see note under s 69.
154(4)
The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to:
(a)
an application by the person, or any other person, for approval for the purposes of the family assistance law; or
(b)
the question of whether an approved provider should continue to be approved; or
(c)
an application by the person, or any other person, for the approval of an approved provider to be varied; or
(d)
the question of whether a child care service should continue to be approved in respect of the person, or any other person; or
(e)
the records that a person is required to keep under section 202B or 202C.
History
S 154(4) amended by No 125 of 2019, s 3 and Sch 1 item 61, by substituting "section 202B or 202C" for "section 202D" in para (e), effective 16 December 2019.
S 154(4) amended by No 26 of 2018, s 3 and Sch 17 item 8, by omitting "that is in the person's custody or under the person's control" after "produce a document", applicable in relation to requirements made on or after 2 July 2018.
S 154(4) substituted by No 22 of 2017, s 3 and Sch 1 item 183, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 154(4) formerly read:
154(4)
The Secretary may require a person to:
(a)
give information; or
(b)
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 either or both of the following matters:
(c)
what rate of child care benefit;
(d)
what weekly limit of hours;
is applicable under determinations made by the Secretary in respect of an approved child care service that is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided to a child at risk.
S 154(4) amended by No 30 of 2003, s 3 and Sch 2 item 42, by substituting "a specified agency" for "an officer", effective 15 April 2003.
S 154(4) inserted by No 45 of 2000, s 3 Sch 2 item 125, effective 1 July 2000. For transitional provisions see note under s 69.
154(4A)
(Repealed by No 22 of 2017)
History
S 154(4A) repealed by No 22 of 2017, s 3 and Sch 1 item 183, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 154(4A) formerly read:
154(4A)
The Secretary may require a person to:
(a)
give information; or
(b)
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 either or both of the following matters:
(c)
whether an individual is eligible under subsection 57EAA(1), 57EA(1), 57F(1) or 57F(1A) of the Family Assistance Act for child care rebate;
(d)
the amount of child care rebate:
(i)
applicable to an individual under Subdivision AAB or Subdivision AA of Division 4AA of Part 3; or
(ii)
to which an individual is entitled.
S 154(4A) amended by No 25 of 2011, s 3 and Sch 1 items 45 and 46, by inserting "57EAA(1)" in para (c) and "Subdivision AAB or" in para (d)(i), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 154(4A) amended by No 50 of 2009, s 3 and Sch 2 item 19, by substituting ", 57F(1) or 57F(1A)" for "or 57F(1)" in para (c), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2007.
S 154(4A) amended by No 50 of 2009, s 3 and Sch 1 item 33, by substituting "child care rebate" for "child care tax rebate" in paras (c) and (d), effective 24 June 2009.
S 154(4A) amended by No 53 of 2008, s 3 and Sch 2 items 21 and 22, by inserting "under subsection 57EA(1) or 57F(1) of the Family Assistance Act". in para (c) and substituting all the words after "amount of" in para (d) for "child care tax rebate to which an individual is entitled", applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 154(4A) inserted by No 113 of 2007, s 3 and Sch 1 item 17, effective 1 July 2007.
154(5)
The Secretary may require a person who is required to keep records under section 202B or 202C to produce to a specified agency such of those records as are specified in the notice given to the person under section 158.
History
S 154(5) amended by No 125 of 2019, s 3 and Sch 1 item 62, by substituting "section 202B or 202C" for "section 202D", effective 16 December 2019.
S 154(5) substituted by No 22 of 2017, s 3 and Sch 1 item 183, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 154(5) formerly read:
154(5)
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:
(a)
an application by the person, or any other person, for approval of a child care service for the purposes of the family assistance law; or
(b)
the question whether an approved child care service operated by the person, or by any other person, should continue to be approved; or
(c)
an application by the person, or any other person, for approval as a registered carer; or
(d)
the question whether the person, or any other person, should continue to be approved as a registered carer; or
(e)
the records that a person is required to keep under section 219G.
S 154(5) amended by No 118 of 2007, s 3 and Sch 3 item 14, by inserting para (e) at the end, applicable in relation to a requirement to keep records that arose before or after 29 June 2007.
S 154(5) inserted by No 30 of 2003, s 3 and Sch 2 item 43, effective 15 April 2003.
154(5A)
(Repealed by No 22 of 2017)
History
S 154(5A) repealed by No 22 of 2017, s 3 and Sch 1 item 183, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 154(5A) formerly read:
154(5A)
The Secretary may require a person who is required to keep records under section 219G to produce to a specified agency such of those records as are specified in the notice given to the person under seciton 158.
S 154(5A) inserted by No 118 of 2007, s 3 and Sch 3 item 15, applicable in relation to a requirement to keep records that arose before or after 29 June 2007.
154(6)
The Secretary may require a person to give information, or produce a document or records, to a specified agency if the Secretary considers that the information, document or records may be relevant to an inquiry or investigation into a matter mentioned in subsection (1), (2), (3) or (4).
History
S 154(6) inserted by No 26 of 2018, s 3 and Sch 17 item 9, applicable in relation to requirements made on or after 2 July 2018.
Former s 154(6) repealed by No 22 of 2017, s 3 and Sch 1 item 183, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 154(6) formerly read:
154(6)
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 the question whether, for the purposes of an application for a determination under subsection 57(1) of the Family Assistance Act, the service is the sole provider in an area of the kind of care the service provides.
Former s 154(6) inserted by No 30 of 2003, s 3 and Sch 2 item 43, effective 15 April 2003.
SECTION 154A
154A
Getting details of adjusted taxable income
(Repealed by No 14 of 2014)
History
S 154A repealed by No 14 of 2014, s 3 and Sch 12 item 29, applicable on and after that commencement in relation to a record provided under subsection 154A(2) or 154B(1) of this Act before 1 April 2014. S 154A formerly read:
SECTION 154A Getting details of adjusted taxable income
154A(1)
This section applies to the tax file number of an individual that is provided to the Secretary:
(a)
by the individual; or
(b)
by the partner of the individual; or
(c)
by the Commissioner of Taxation on the authority of the individual;
under a provision of this Act for the purposes of this Act.
154A(2)
The Secretary may provide to the Commissioner of Taxation a record (the
designated TFN record
) of an individual's tax file number for the purpose of being informed by the Commissioner of amounts included in the individual's adjusted taxable income for a specified income year.
Note:
The tax file number must first have been provided to the Secretary as described in subsection (1).
History
S 154A(2) substituted by No 49 of 2009, s 3 and Sch 3 item 1, effective 1 July 2009. No 49 of 2009, s 3 and Sch 3 items 3 and 4 contain the following application and transitional provisions:
Application
(1)
Section 154A of the A New Tax System (Family Assistance) (Administration) Act 1999 (as amended) applies in relation to a record of a tax file number provided under subsection 154A(2) of that Act:
(a)
during the period starting on 1 July 2006 and ending immediately before 1 July 2009 (the
pre-commencement period
); or
(b)
on or after 1 July 2009.
(2)
For the purposes of the application of section 154A of the A New Tax System (Family Assistance) (Administration) Act 1999 (as amended by this Schedule) to a record provided during the pre-commencement period, the record so provided is the
designated TFN record
.
Transitional - providing TFN record again if income details yet to be provided for past income years
(1)
This item applies if, before 1 July 2009:
(a)
the Commissioner of Taxation destroyed the Commissioner's record of an individual's tax file number provided under section 154A of the A New Tax System (Family Assistance) (Administration) Act 1999 for an income year; and
(b)
the Commissioner did not provide the Secretary with particulars of the individual's taxable income for that income year.
Secretary may provide the TFN record again
(2)
The Secretary may provide the individual's tax file number to the Commissioner under subsection 154A(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (as amended) for that income year.
Modification to normal rules if TFN record provided again
(3)
Section 154A of the A New Tax System (Family Assistance) (Administration) Act 1999 (as amended) applies in relation to a tax file number so provided as if subsections 154A(6) and (7) of that Act were replaced with the following:
(6)
The Commissioner must destroy the designated TFN record if and when the Commissioner later:
(a)
discloses particulars of the individual's adjusted taxable income for that income year under subsection (5); or
(b)
receives a notice under subsection (3) that the Secretary understands that the individual is not required to lodge an income tax return for that income year.
S 154A(2) formerly read:
154A(2)
The Secretary may provide to the Commissioner of Taxation a tax file number to which subsection (1) applies, or is taken to apply, for the purpose of being informed of the amount determined by the Commissioner to be the taxable income for that income year of the individual to whom the tax file number relates.
154A(3)
The Secretary may later give written notice to the Commissioner that the Secretary understands that the individual is not required to lodge an income tax return for that income year.
History
S 154A(3) substituted by No 49 of 2009, s 3 and Sch 3 item 1, effective 1 July 2009. For application and transitional provisions, see note under s 154A(2). S 154A(3) formerly read:
154A(3)
If:
(a)
a tax file number to which subsection (1) applies, or is taken to apply, is provided to the Commissioner of Taxation in respect of a particular income year; and
(b)
the Commissioner of Taxation determines the taxable income of the individual before the end of 3 years after the end of that income year;
the Commissioner may provide the Secretary with particulars of the income determined in respect of that individual and disclose that individual's TFN to the Secretary.
S 154A(3) amended by No 33 of 2004, s 3 and Sch 1 items 4 and 6, by substituting "3 years'' for "2 years'' in para (b), applicable to a determination of taxable income made on or after 1 July 2003 (including after the commencement of this amendment - 20 April 2004).
154A(4)
A notice under subsection (3) may include a record of the individual's tax file number. The Commissioner must destroy that record when it is no longer needed for the purposes of the notice.
History
S 154A(4) substituted by No 49 of 2009, s 3 and Sch 3 item 1, effective 1 July 2009. For application and transitional provisions, see note under s 154A(2). S 154A(4) formerly read:
154A(4)
If a tax file number to which subsection (1) applies, or is taken to apply, is provided to the Commissioner of Taxation in respect of a particular income year, the Commissioner must, 3 years after the end of that income year, destroy the Commissioner's record of the tax file number so provided.
S 154A(4) amended by No 33 of 2004, s 3 and Sch 1 items 5 and 6, by substituting "3 years'' for "2 years'', applicable to tax file numbers provided either before or after the commencement of this Part to the Commissioner in respect of the income year beginning on 1 July 2001 or any later income year.
S 154A inserted by No 45 of 2000, s 3 Sch 2 item 126, effective 1 July 2000. For transitional provisions see note under s 69.
154A(5)
If the Commissioner works out amounts included in the individual's adjusted taxable income for that income year, the Commissioner may disclose to the Secretary:
(a)
particulars of those amounts; and
(b)
the individual's tax file number.
History
S 154A(5) inserted by No 49 of 2009, s 3 and Sch 3 item 1, effective 1 July 2009. For application and transitional provisions, see note under s 154A(2).
154A(6)
The Commissioner must destroy the designated TFN record 3 years after the end of that income year, unless during those 3 years:
(a)the Commissioner has not disclosed particulars of the individual's adjusted taxable income for that income year under subsection (5); and
(b)
the Commissioner has not received a notice under subsection (3) that the Secretary understands that the individual is not required to lodge an income tax return for that income year.
History
S 154A(6) inserted by No 49 of 2009, s 3 and Sch 3 item 1, effective 1 July 2009. For application and transitional provisions, see note under s 154A(2).
154A(7)
If the Commissioner is not required to destroy the designated TFN record under subsection (6), the Commissioner must do so if and when the Commissioner later:
(a)
discloses particulars of the individual's adjusted taxable income for that income year under subsection (5); or
(b)
receives a notice under subsection (3) that the Secretary understands that the individual is not required to lodge an income tax return for that income year.
History
S 154A(7) inserted by No 49 of 2009, s 3 and Sch 3 item 1, effective 1 July 2009. For application and transitional provisions, see note under s 154A(2).
154A(8)
If the tax file number of an individual, or of the partner of an individual, is provided to the Secretary under Division
4E of Part
3, this section applies as if a reference to the amounts included in the individual's adjusted taxable income were a reference to the individual's taxable income or the individual's partner's taxable income (as the case requires).
History
S 154A(8) inserted by No 141 of 2011, s 3 and Sch 8 item 15, applicable in relation to the 2012-13 income year and later income years.
SECTION 154B
154B
Providing information to assist debt recovery
(Repealed by No 14 of 2014)
History
S 154B repealed by No 14 of 2014, s 3 and Sch 12 item 29, applicable on and after that commencement in relation to a record provided under subsection 154A(2) or 154B(1) of this Act before 1 April 2014. S 154B formerly read:
SECTION 154B Providing information to assist debt recovery
154B(1)
The Secretary may provide to the Commissioner of Taxation:
(a)
a record of an individual's tax file number to which subsection 154A(1) applies; and
(b)
details relating to an individual's entitlement, or non-entitlement, to family assistance;
for one of the purposes mentioned in subsection (2).
154B(2)
The purposes are as follows:
(a)
to assist the Commissioner act under section 87 (applying tax refund to family assistance debt) in relation to a debt owed by an individual;
(b)
to assist the Commissioner act under section 93 (applying tax refund to another person's family assistance debt) in relation to a debt owed by an individual;
(c)
to assist the payment of deductions to the Commissioner under section 225;
(d)
if details relating to an individual's entitlement to an amount of family assistance (other than child care benefit) are provided under paragraph (1)(b) - to assist the Commissioner set off under section 226 the whole or a part of that entitlement.
154B(3)
The Commissioner must destroy the Commissioner's record of the tax file number provided under subsection (1) when the number is no longer needed for the purpose for which it was provided.
Former s 154B inserted by No 49 of 2009, s 3 and Sch 3 item 2, effective 1 July 2009.
SECTION 155
155
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 as a result of this Act:
(a)
to give to a specified agency information that is relevant to the person's financial situation; or
(b)
to produce to a specified agency a document that is relevant to the person's financial situation; or
(c)
if the person's address changes - to inform a specified agency of the new address within 14 days after the change.
History
S 155 amended by No 26 of 2018, s 3 and Sch 17 item 10, by omitting "is in the person's custody or under the person's control and" after "a document that" from para (b), applicable in relation to requirements made on or after 2 July 2018.
S 155 amended by No 30 of 2003, s 3 and Sch 2 item 44, by substituting "a specified agency" for "an officer" in paras (a), (b) and (c), effective 15 April 2003.
SECTION 156
156
Obtaining information about a person who owes a debt to the Commonwealth
The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers the information or document:
(a)
would help the specified agency locate another person (the
debtor
) who owes a debt to the Commonwealth under or as a result of this Act; or
(b)
is relevant to the debtor's financial situation.
History
S 156 substituted by No 26 of 2018, s 3 and Sch 17 item 11, applicable in relation to requirements made on or after 2 July 2018. S 156 formerly read:
SECTION 156 Obtaining information about a person who owes a debt to the Commonwealth
156
If the Secretary believes that a person may have information or a document:
(a)
that would help the Secretary locate another person (the
debtor
) who owes a debt to the Commonwealth under or as a result 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 a specified agency.
S 156 amended by No 30 of 2003, s 3 and Sch 2 item 45, by substituting "a specified agency" for "an officer", effective 15 April 2003.
SECTION 157
Obtaining information to verify claims etc
157(1)
The Secretary may require a person to give information about a class of persons, to a specified agency for either or both of the following purposes:
(a)
to detect cases in which amounts of family assistance have been paid to persons not entitled to them;
(b)
to verify the eligibility, entitlement to be paid and amount of the entitlement of persons who have made claims for family assistance.
History
S 157(1) amended by No 22 of 2017, s 3 and Sch 1 item 184, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
to verify the eligibility, conditional eligibility or the applicable weekly limit of hours of persons who have made claims for family assistance.
S 157(1) amended by No 30 of 2003, s 3 and Sch 2 item 46, by substituting "a specified agency" for "an officer", effective 15 April 2003.
S 157(1) amended by No 45 of 2000, s 3 Sch 2 item 127, by inserting ", conditional eligibility or the applicable weekly limit of hours" after "eligibility" in para (b), effective 1 July 2000. For transitional provisions see note under s 69.
157(2)
The information that the Secretary may require about each person in the class of persons is all or any of the following information (but no other information):
(a)
full name and any previous name;
(b)
address;
(c)
sex;
(d)
marital status;
(e)
date of birth;
(f)
date of death;
(g)
dates of entries into and departures from Australia;
(h)
any payments received by the person from the person given the notice, within the period of 52 weeks before the giving of the notice, and the account number of the account into which any of those payments was paid;
(i)
in relation to a course of study being undertaken by the person:
(i)
the name of the educational institution that the person is attending;
(ii)
the name of any educational institution previously attended by the person;
(iii)
the person's enrolment status;
(iv)
the person's student identification number;
(v)
the name of the course;
(vi)
the course code;
(vii)
the date on which the course started or starts;
(viii)
the date on which the course ends;
(ix)
the subject or unit code;
(x)
the normal full-time study workload for the course;
(xi)
indicators of the person's workload, including (but not limited to) effective full-time student units, credit points, contact hours, number of subjects undertaken and number of assignments completed;
(xii)
the number of semesters required to complete the course;
(xiii)
the date on which the person first attended, or will first attend, the course;
(xiv)
the date on which the person last attended, or will last attend, the course;
(xv)
whether the person has discontinued the course and, if the person has discontinued the course, the date on which it happened;
(xvi)
details of any unapproved absences from the course;
(xvii)
the results or grade obtained by the person;
(j)
in relation to any employment of the person by the person given the notice:
(i)
the date on which the person's employment started; and
(ii)
the date on which the person's employment ended; and
(iii)
the number of hours each week for which the person is employed;
(k)
in relation to any other recognised activity (other than as an employee) that the person engages in for the person given the notice - any or all of the following:
(i)
the date on which the recognised activity started;
(ii)
the date on which the recognised activity ended;
(iii)
the number of hours each week in which the person engages in the recognised activity;
(l)
in relation to any training of the person by the person given the notice:
(i)
the name of the entity providing the training;
(ii)
if the person is undertaking a training course - the name of the training course
(iii)
the period required to complete the training;
(iv)
the date on which the person's training started;
(v)
the date on which the person's training ended;
(vi)
the number of hours each week for which the person engages in the training.
History
S 157(2) amended by No 22 of 2017, s 3 and Sch 1 item 185, by substituting para (k), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (k) formerly read:
(k)
in relation to any other work (other than as an employee) that the person does for the person given the notice and that is a recognised work or work related commitment for the purposes of the work/training/study test:
(i)
the date on which the person's work started;
(ii)
the date on which the person's work ended;
(iii)
the number of hours each week for which the person does the work;
S 157(2) amended by No 150 of 2005, s 3 and Sch 2 items 32 and 33, by inserting para (j)(iii) and paras (k) and (l), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
157(3)
The Secretary may require information about a particular class of persons, whether or not the Secretary is able to identify any of the persons in that class as being persons:
(a)
who have been paid family assistance; or
(b)
who are entitled to family assistance; or
(c)
who have made claims for family assistance.
(d)
(Repealed by No 22 of 2017)
History
S 157(3) amended by No 22 of 2017, s 3 and Sch 1 items 186 and 187, by substituting "assistance." for "assistance; or" in para (c) and repealing para (d), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (d) formerly read:
(d)
in respect of whom determinations of conditional eligibility for child care benefit by fee reduction are in force.
S 157(3) substituted by No 45 of 2000, s 3 Sch 2 item 128, effective 1 July 2000. For transitional provisions see note under s 69. S 157(3) formerly read:
157(3)
The Secretary may require information about a particular class of persons, whether or not the Secretary is able to identify any of the persons in that class as being persons:
(a)
who have been paid; or
(b)
who are entitled to; or
(c)
who have made claims for;
family assistance.
157(4)
Within 13 weeks after information is given in response to a requirement under subsection (1), the Secretary must decide which (if any) of the information is, or is likely to be, relevant to a matter referred to in subsection (1).
157(5)
If the Secretary decides, within the 13 week period, that some or all of the information given in response to the requirement is not, or is not likely to be, relevant to a matter referred to in subsection (1), the Secretary must ensure that any record of the irrelevant information is destroyed.
157(6)
If the Secretary has not made a decision under subsection (4) at the end of the 13 week period, the Secretary must ensure that any record of all or any part of the information is destroyed.
SECTION 157A
157A
Obtaining records supporting certificate under section 85CB
The Secretary may require an approved provider that has given the Secretary a certificate under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act to produce any records kept by the provider for the purposes of section 202C in relation to the certificate.
History
S 157A inserted by No 22 of 2017, s 3 and Sch 1 item 188, effective 2 July 2018. For application, saving andtransitional provisions, see note under Pt 3A heading.
SECTION 158
Written notice of requirement
158(1)
A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
158(2)
The notice:
(a)
may be given personally or by post or in any other manner approved by the Secretary; and
(b)
must specify:
(ia)
a description of the information, document or records to which the requirement relates; and
(i)
how the person is to give the information or produce the document or records to which the requirement relates; and
(ii)
the period within which the person is to give the information or produce the document or records; and
(iii)
the officer (if any) to whom the information is to be given, the document is to be produced or the records are to be produced; and
(iv)
that the notice is given under this section.
Note:
The notice may describe the information, documents or records by class (see subsection 33(3AB) of the Acts Interpretation Act 1901).
History
S 158(2) amended by No 26 of 2018, s 3 and Sch 17 items 12 and 13, by inserting para (b)(ia) and the note, applicable in relation to requirements made on or after 2 July 2018.
S 158(2) amended by No 118 of 2007, s 3 and Sch 3 items 16 and 17, by inserting "or records" after "document" in para (b)(i) and (ii) and substituting ", the document is to be produced or the records are to be produced" for "or the document is to be produced" in para (b)(iii), effective 29 June 2007.
S 158(2) amended by No 30 of 2003, s 3 and Sch 2 items 47 and 48, by omitting "to an officer" after "document" in para (b)(ii) and inserting "(if any)" after "officer" in para (b)(iii), effective 15 April 2003.
158(3)
For the purposes of paragraph (2)(b), the period must not end earlier than 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the family assistance law, to specify a shorter period.
History
S 158(3) substituted by No 22 of 2017, s 3 and Sch 1 item 189, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 158(3) formerly read:
158(3)
The period specified under paragraph (2)(b) must not end earlier than 14 days after the notice is given.
158(4)
The notice may require the person to give the information by appearing before a specified officer to answer questions.
158(5)
If the notice requires the person to appear before an officer, the notice must specify:
(a)
a time and place at which the person is to appear; and
(b)
that the person may be accompanied by a lawyer.
History
S 158(5) substituted by No 26 of 2018, s 3 and Sch 17 item 14, applicable in relation to requirements made on or after 2 July 2018. S 158(5) formerly read:
158(5)
If the notice requires the person to appear, the notice must specify a time and place at which the person is to appear.
S 158(5) substituted by No 22 of 2017, s 3 and Sch 1 item 190, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 158(5) formerly read:
158(5)
If the notice requires the person so to appear, 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 notice is given.
158(6)
For the purposes of subsection (5), the time must be at least 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the family assistance law, to specify an earlier time.
History
S 158(6) inserted by No 22 of 2017, s 3 and Sch 1 item 190, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 159
Offence: failure to comply with requirement
159(1)
A person must not refuse or fail to comply with a requirement under this Division to give information or produce a document or records.
Penalty: Imprisonment for 12 months.
History
S 159(1) amended by No 118 of 2007, s 3 and Sch 3 item 18, by inserting "or records" after "document", effective 29 June 2007.
159(2)
Subsection (1) applies only to the extent to which the person is capable of complying with the requirement.
159(3)
Subsection (1) does not apply if the person has a reasonable excuse.
159(4)
Strict liability applies to the element of an offence against subsection (1) that a requirement is a requirement under this Division.
History
S 159 substituted by No 137 of 2001, s 3 and Sch 1 item 18, effective 1 October 2001. S 159 formerly read:
Offence: failure to comply with requirement
159
A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this Division to give information or produce a document, to the extent that the person is capable of complying with the requirement.
Penalty: Imprisonment for 12 months.
SECTION 159A
159A
Requesting information for the purposes of a care percentage determination under the child support law
The Secretary may request a person:
(a)
to give information; or
(b)
to produce a document;
to a specified agency if the Secretary considers that the information or document may be relevant to the making or revoking of a determination under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989.
History
S 159A amended by No 26 of 2018, s 3 and Sch 17 item 15, by omitting "that is in the person's custody or under the person's control" after "to produce a document" from para (b), applicable in relation to requirements made on or after 2 July 2018.
S 159A inserted by No 65 of 2010, s 3 and Sch 2 item 38, effective 1 July 2010.
SECTION 159B
Self-incrimination
159B(1)
A person is not excused from giving information, or producing a document or records, under this Division on the ground that the information, or production of the document or records, might tend to incriminate the person or expose the person to a penalty.
159B(2)
However, in the case of an individual:
(a)
the information given or document or records produced; and
(b)
giving the information or producing the document or records; and
(c)
any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or records;
are not admissible in evidence against the individual in any criminal proceedings, other than:
(d)
proceedings for an offence against subsection 159(1); or
(e)
proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division; or
(f)
proceedings for an offence against Division 145 of the Criminal Code; or
(g)
proceedings for an offence against section 177 that relates:
(i)
to this Division; and
(ii)
to a contravention of section 172 or subsection 173(1), 174(1) or 176(3).
History
S 159B inserted by No 26 of 2018, s 3 and Sch 17 item 16, applicable in relation to requirements made on or after 2 July 2018.
SECTION 159C
159C
Use of information in investigations etc.
Subject to subsection 159B(2), nothing in this Division prevents information given, or a document or records produced, under this Division by a person from being used in:
(a)
an inquiry or investigation into a matter; or
(b)
criminal proceedings.
History
S 159C inserted by No 26 of 2018, s 3 and Sch 17 item 16, applicable in relation to requirements made on or after 2 July 2018.
SECTION 160
Relationship with other laws
160(1)
Nothing contained in a law of a State or a Territory operates to prevent a person from:
(a)
giving information; or
(b)
producing a document or records; or
(c)
giving evidence;
that the person is required to give or produce to an agency for the purposes of the family assistance law.
History
S 160 amended by No 26 of 2018, s 3 and Sch 17 item 18, by inserting "(1)" before "Nothing", applicable in relation to requirements made on or after 2 July 2018.
S 160 amended by No 118 of 2007, s 3 and Sch 3 item 19, by inserting "or records" after "document" in para (b), effective 29 June 2007.
S 160 amended by No 30 of 2003, s 3 and Sch 2 item 49, by substituting "an agency" for "an officer", effective 15 April 2003.
160(2)
This Division does not require a person to give information or produce a document or records to the extent that in doing so the person would contravene a law of the Commonwealth (other than a law of a Territory).
History
S 160(2) inserted by No 26 of 2018, s 3 and Sch 17 item 19, applicable in relation to requirements made on or after 2 July 2018.
Division 1A - Use of tax file numbers
History
Div 1A inserted by No 14 of 2014, s 3 and Sch 12 item 30, applicable in relation to a tax file number provided to the Secretary before, on or after 1 April 2014.
SECTION 160A
Use of tax file numbers
160A(1)
This section applies in relation to the tax file number of an individual that is provided to the Secretary under this Act for the purposes of this Act.
Assistance to the Secretary
160A(2)
The Secretary may:
(a)
provide the tax file number referred to in subsection (1) to the Commissioner of Taxation; and
(b)
require the Commissioner of Taxation to provide the Secretary with information about the individual (including the number the Commissioner of Taxation considers to be the individual's tax file number) that is requested by the Secretary.
160A(3)
Information provided to the Secretary under a requirement made under subsection (2) may be used only for the following purposes:
(a)
to detect cases in which amounts of family assistance under the family assistance law have been paid when they should not have been paid;
(b)
to verify, in respect of individuals who have made claims for family assistance under the family assistance law, the eligibility or entitlement of those individuals for family assistance;
(c)
to establish whether the rates at which family assistance under the family assistance law are being, or have been, paid are, or were, correct;
(d)
to assist in the recovery of a debt due to the Commonwealth under this Act.
Assistance to the Commissioner of Taxation
160A(4)
The Secretary may provide the tax file number referred to in subsection (1) to the Commissioner of Taxation for the following purposes:
(a)
to assist the Commissioner act under section 87 (applying tax refund to family assistance debt) in relation to a debt owed by an individual;
(b)
to assist the Commissioner act under section 93 (applying tax refund to another person's family assistance debt) in relation to a debt owed by an individual;
(c)
to assist the payment of deductions to the Commissioner under section 225;
(d)
to assist the Commissioner set off amounts under section 226.
History
S 160A inserted by No 14 of 2014, s 3 and Sch 12 item 30, applicable in relation to a tax file number provided to the Secretary before, on or after 1 April 2014.
Division 2 - Confidentiality
SECTION 161
Operation of Division
Commonwealth laws
161(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.
History
S 161(1) substituted by No 45 of 2000, s 3 Sch 2 item 129, effective 1 July 2000. For transitional provisions see note under s 69. S 161(1) formerly read:
161(1)
Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of the Child Support (Assessment) Act 1989.
State and Territory laws
161(1A)
Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:
(a)
the Education and Care Services National Law applying as a law of a State or Territory; or
(b)
a law of a State or Territory that applies the Education and Care Services National Law as a law of that State or Territory (whether or not that law has commenced); or
(c)
regulations made under the Education and Care Services National Law; or
(d)
a law of a State or Territory that substantially corresponds to the provisions of the Education and Care Services National Law (whether or not that law has commenced); or
(e)
regulations made under a law referred to in paragraph (d).
History
S 161(1A) inserted by No 79 of 2011, s 3 and Sch 4 item 3, effective 26 July 2011.
161(1B)
(Repealed by No 125 of 2019)
[
CCH Note:
S 161(1B) and (1C) will be inserted by No 38 of 2024, s 3 and Sch 3 item 52A, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 161(1B) and (1C) will read:
Publishing reasons for ART decisions
161(1B)
Nothing in this Division prevents the ART from publishing in written or electronic form the reasons for a decision of the ART on ART review if the publication does not identify:
(a)
a party to the review concerned (other than the Secretary or the Child Support Registrar); or
(b)
a person (other than the Secretary or the Child Support Registrar) who is related to, or associated with, a party to the review concerned or is, or is alleged to be, in any other way concerned in the matter to which the review concerned relates; or
(c)
a witness in the review concerned.
161(1C)
Without limiting subsection (1B), a publication of reasons for a decision of the ART is taken to identify a person if it contains any particulars of:
(a)
the name, title, pseudonym or alias of the person; or
(b)
the address of any premises at which the person resides or works, or the locality in which any such premises are situated; or
(c)
the physical description or the style of dress of the person; or
(d)
any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; or
(e)
the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; or
(f)
the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(g)
any real or personal property in which the person has an interest or with which the person is otherwise associated;
and the particulars are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the publication is disseminated, as the case requires.
]
History
S 161(1B) repealed by No 125 of 2019, s 3 and Sch 2 item 11, effective 13 December 2019. S 161(1B) formerly read:
161(1B)
In subsection (1A):
Education and Care Services National Law
means the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria.
S 161(1B) inserted by No 79 of 2011, s 3 and Sch 4 item 3, effective 26 July 2011.
No effect on operation of the Freedom of Information Act 1982
161(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.
SECTION 161A
161A
Definitions
In this Division:
taxation information
means information (including protected information within the meaning of subsection 355-30(1) in Schedule 1 to the Taxation Administration Act 1953 but not including a tax file number) that is held by a taxation officer.
taxationofficer
means the following:
(a)
a person who is a taxation officer within the meaning of subsection 355-30(2) in Schedule 1 to the Taxation Administration Act 1953;
(b)
an entity covered by section 355-15 in that Schedule.
History
S 161A inserted by No 17 of 2020, s 3 and Sch 1 item 74, effective 7 December 2020.
SECTION 162
Permitted obtaining of, making a record of, disclosure of or use of protected information
162(1)
A person may obtain protected information if the information is obtained for the purposes of:
(a)
the family assistance law; or
(aa)
the Dental Benefits Act 2008; or
(b)
the Family Homelessness Prevention and Early Intervention Pilot.
(c)
(Repealed by No 125 of 2019)
Note:
For an example of obtaining protected information for the purposes of the family assistance law, see section 162A.
History
S 162(1) amended by No 17 of 2020, s 3 and Sch 1 item 76, by inserting the note, effective 7 December 2020.
S 162(1) amended by No 125 of 2019, s 3 and Sch 1 items 63 and 64, by substituting "Pilot." for "Pilot; or" in para (b) and repealing para (c), effective 16 December 2019. Para (c) formerly read:
(c)
the Child Care Management System Pilot.
S 162(1) amended by No 42 of 2008, s 3 and Sch 1 item 2, by inserting para (aa), effective 26 June 2008.
S 162(1) amended by No 118 of 2007, s 3 and Sch 1 item 65, by substituting all the words after "obtained", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. The words formerly read:
for the purposes of the family assistance law or the Family Homelessness Prevention and Early Intervention Pilot.
S 162(1) amended by No 35 of 2003, s 3 and Sch 7 item 4, by inserting "or of the Family Homelessness Prevention and Early Intervention Pilot" at the end, effective 24 April 2003.
162(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 made of the information by the person is made:
(d)
for the purposes of the family assistance law; or
(daa)
for the purposes of the Dental Benefits Act 2008; or
(dab)
for the purposes of the social security law; or
(dac)
for the purposes of the Paid Parental Leave Act 2010; or
(dad)
for the purposes of the Student Assistance Act 1973; or
(dae)
for the purposes of the Education and Care Services National Law; or
(da)
for the purpose of the Family Homelessness Prevention and Early Intervention Pilot; or
(db)
(Repealed by No 125 of 2019)
(e)
for the purpose for which the information was disclosed to the person under section 167 or 168; or
(f)
with the express or implied authorisation of the person to whom the information relates.
[
CCH Note:
No 79 of 2011, s 3 and Sch 4 item 4, inserts the same para (f) that was inserted by No 32 of 2011, s 3 and Sch 4 item 655.]
Note:
For an example of a disclosure of, making a record of or the use of protected information for the purposes of the family assistance law, see section 162A.
History
S 162(2) amended by No 17 of 2020, s 3 and Sch 1 item 77, by inserting the note, effective 7 December 2020.
S 162(2) amended by No 125 of 2019, s 3 and Sch 1 item 64, by repealing para (db), effective 16 December 2019. Para (db) formerly read:
(db)
for the purposes of the Child Care Management System Pilot; or
S 162(2) amended by No 125 of 2019, s 3 and Sch 2 item 12, by substituting para (dae), effective 13 December 2019. Para (dae) formerly read:
(dae)
the Education and Care Services National Law of a jurisdiction; or
S 162(2) amended by No 22 of 2017, s 3 and Sch 1 item 191, by inserting para (dae), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 162(2) amended by No 32 of 2011, s 3 and Sch 4 item 655, by inserting para (f), effective 1 July 2011. For transitional provisions see note under s 108(2).
S 162(2) amended by No 32 of 2011, s 3 and Sch 4 item 41A, by inserting paras (dab) to (dad), effective 1 July 2011. For transitional provisions see note under s 108(2).
S 162(2) amended by No 42 of 2008, s 3 and Sch 1 item 3, by inserting para (daa), effective 26 June 2008.
S 162(2) amended by No 118 of 2007, s 3 and Sch 1 item 66, by inserting para (db), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 162(2) amended by No 35 of 2003, s 3 and Sch 7 item 5, by inserting para (da), effective 24 April 2003.
162(2A)
A person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person.
History
S 162(2A) inserted by No 47 of 2016, s 3 and Sch 5 item 1, applicable in relation to protected information obtained before, on or after 6 May 2016.
162(3)
The Minister may, by legislative instrument, specify additional purposes relating to other programs administered by the Department for which protected information may be obtained under subsection (1), or recorded, disclosed or otherwise used under subsection (2).
History
S 162(3) amended by No 108 of 2006, s 3 and Sch 8 item 55, by substituting "by legislative instrument" for "by instrument in writing", effective 27 September 2006.
S 162(3) inserted by No 35 of 2003, s 3 and Sch 7 item 6, effective 24 April 2003.
162(4)
(Repealed by No 108 of 2006)
History
S 162(4) repealed by No 108 of 2006, s 3 and Sch 8 item 56, effective 27 September 2006. S 162(4) formerly read:
162(4)
An instrument under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
S 162(4) inserted by No 35 of 2003, s 3 and Sch 7 item 6, effective 24 April 2003.
162(5)
An instrument under subsection (3) does not take effect until the end of the period in which it could be disallowed in either House of the Parliament.
History
S 162(5) amended by No 108 of 2006, s 3 and Sch 8 item 57, by substituting "An instrument under subsection (3)" for "For the purposes of the application of section 48 ofthe Acts Interpretation Act 1901, an instrument", effective 27 September 2006.
S 162(5) inserted by No 35 of 2003, s 3 and Sch 7 item 6, effective 24 April 2003.
SECTION 162A
Obtaining of, making a record of, disclosure of or use of protected information relating to taxation information
Disclosure to taxation officers for matching against taxation information
162A(1)
A disclosure of protected information by an officer is made for the purposes of the family assistance law if:
(a)
the disclosure is to a taxation officer; and
(b)
the disclosure is for the purposes of a taxation officer matching that information against taxation information to facilitate the performance of functions, or the exercise of powers, under the family assistance law.
162A(2)
The obtaining of, making of a record of or the use of protected information by an officer is for the purposes of the family assistance law if the obtaining of, making of the record of or the use of the protected information is in connection with a disclosure referred to in subsection (1).
Authorised collection of personal information that is taxation information
162A(3)
The collection of personal information about a person is authorised by this Act for the purposes of the Privacy Act 1988 if:
(a)
the personal information is taxation information; and
(b)
the collection is from a taxation officer; and
(c)
the collection is for the purposes of the family assistance law.
Obtaining of taxation information
162A(4)
If an officer obtains personal information about a person in the circumstances referred to in subsection (3), then the officer has obtained the information under the family assistance law.
Interpretation
162A(5)
This section does not limit section 162.
History
S 162A inserted by No 17 of 2020, s 3 and Sch 1 item 78, effective 7 December 2020.
SECTION 162B
Secretary may publish certain information relating to approved providers
162B(1)
The Secretary may publish, by electronic means, the following information in relation to an approved provider:
(a)
the name of the approved provider;
(b)
the approved provider's ABN;
(c)
the name of each child care service in respect of which the approved provider is approved;
(d)
information given to the Secretary by the approved provider under the family assistance law about the fees charged by the approved provider for child care provided by each child care service referred to in paragraph (c);
(e)
information in relation to any increases in the fees referred to in paragraph (d) that is prescribed by the Minister's rules;
(f)
if the approved provider is a large child care provider covered by paragraph 4A(1)(a) or (b) - financial information included in a report given to the Secretary by the provider under subsection 203BA(1);
(g)
any other information prescribed by the Minister's rules.
Disclosure of personal information
162B(2)
For the purposes of:
(a)
paragraph 6.2(b) of Australian Privacy Principle 6; and
(b)
a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;
the disclosure of personal information under subsection (1) is taken to be a disclosure that is authorised by this Act.
Constitutional basis - additional operation of this section
162B(3)
In addition to section 85AB of the Family Assistance Act, this section also has the effect it would have if each reference to an approved provider were expressly confined to an approved provider that is a corporation to which paragraph 51(xx) of the Constitution applies.
Note:
Section 85AB of the Family Assistance Act sets out the constitutional basis of the provisions of this Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers).
History
S 162B inserted by No 66 of 2022, s 3 and Sch 2 item 14, effective 1 July 2023.
SECTION 163
Offence - unauthorised obtaining of protected information
163(1)
If:
(a)
a person intentionally obtains information; and
(b)
the person is not authorised under the family assistance law to obtain the information; and
(c)
the person knows or ought reasonably to know that the information is protected information;
the person commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
History
S 163(1) amended by No 4 of 2016, s 3 and Sch 4 items 1 and 11, by substituting "commits" for "is guilty of", effective 10 March 2016.
163(2)
Strict liability applies to the element of an offence against subsection(1) that a person not authorised to do something is not authorised under the family assistance law to do that thing.
History
S 163 substituted by No 137 of 2001, s 3 and Sch 1 item 19, effective 1 October 2001. S 163 formerly read:
Offence: unauthorised access to protected information
163
If:
(a)
a person intentionally obtains information; and
(b)
the person:
(i)
is not authorised under the family assistance law to obtain the information; and
(ii)
has no other lawful authority to obtain the information; and
(c)
the person knows or ought reasonably to know that the information is protected information;
the person is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
SECTION 164
Offence - unauthorised making a record of, disclosure of or use of protected information
164(1)
If:
(a)
a person intentionally:
(i)
makes a record of; or
(ii)
discloses to any other person; or
(iii)
otherwise makes use of;
information; and
(b)
the person is not authorised or required under:
(i)
the family assistance law; or
(ii)
the Social Security Act 1991; or
(iii)
the Social Security (Administration) Act 1999;
to make the record, disclosure or use of the information that is made by the person; and
(c)
the person knows or ought reasonably to know that the information is protected information;
the person commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
History
S 164(1) amended by No 4 of 2016, s 3 and Sch 4 items 1 and 11, by substituting "commits" for "is guilty of", effective 10 March 2016.
164(2)
Strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required to do that thing under:
(a)
the family assistance law; or
(b)
the Social Security Act 1991; or
(c)
the Social Security (Administration) Act 1999.
History
S 164 substituted by No 137 of 2001, s 3 and Sch 1 item 20, effective 1 October 2001. S 164 formerly read:
Offence: unauthorised use of protected information
164
If:
(a)
a person intentionally:
(i)
makes a record of; or
(ii)
discloses to any other person; or
(iii)
otherwise makes use of;
information; and
(b)
the person is not authorised or required under:
(i)
the family assistance law; or
(ii)
the Social Security Act 1991; or
(iii)
the Social Security (Administration) Act 1999;
to make the record, disclosure or use of the information that is made by the person; and
(c)
the person knows or ought reasonably to know that the information is protected information;
the person is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
SECTION 165
Offence: soliciting disclosure of protected information
165(1)
If:
(a)
a person (the
first person
) solicits the disclosure of protected information from an officer or another person; and
(b)
the disclosure would be in contravention of this Division; and
(c)
the first person knows or ought reasonably to know that the information is protected information;
the first person commits an offence (whether or not any protected information is actually disclosed) punishable on conviction by imprisonment for a term not exceeding 2 years.
History
S 165(1) amended by No 4 of 2016, s 3 and Sch 4 items 1 and 11, by substituting "commits" for "is guilty of", effective 10 March 2016.
165(2)
Strict liability applies to paragraph (1)(b).
History
S 165(2) inserted by No 137 of 2001, s 3 and Sch 1 item 21, effective 1 October 2001.
SECTION 166
Offence: offering to supply protected information
166(1)
A person must not offer to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information.
Penalty: Imprisonment for 2 years.
166(2)
A person must not hold himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information.
Penalty: Imprisonment for 2 years.
166(3)
Nothing in subsection (1) or (2) has the effect that an officer acting in the performance or exercise of his or her powers, duties or functions under the family assistance law commits an offence.
History
S 166(3) substituted by No 4 of 2016, s 3 and Sch 4 item 332, effective 10 March 2016. S 166(3) formerly read:
166(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 the family assistance law guilty of an offence.
SECTION 167
167
Protection of certain documents etc from production to court etc
An officer must not, except for the purposes of the family assistance law or the Royal Commissions Act 1902, be required:
(a)
to produce any document in his or her possession; or
(b)
to disclose any matter or thing of which he or she had notice;
because of the officer's powers, or the performance of the officer's duties or functions, under the family assistance law, to:
(c)
a court; or
(d)
a tribunal; or
(e)
an authority; or
(f)
a person;
having power to require the production of documents or the answering of questions.
History
S 167 amended by No 107 of 2020, s 3 and Sch 2 item 1, by inserting "or the Royal Commissions Act 1902", applicable in relation to a summons or notice served, or a requirement made, on or after 27 November 2020 (whether the information came into existence before, on or after 27 November 2020.
SECTION 168
Disclosure of information by Secretary
168(1)
Despite sections 164 and 167, the Secretary may:
(a)
if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases-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 the family assistance law to such persons and for such purposes as the Secretary determines; or
(b)
disclose any such information:
(i)
to the Secretary of a Department of State of the Commonwealth or to the head of an authority of the Commonwealth for the purposes of that Department or authority; or
(ii)
to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or
(iii)
to the Chief Executive Centrelink for the purposes of a centrelink program; or
(iv)
to the Chief Executive Medicare for the purposes of a medicare program.
History
S 168(1) amended by No 32 of 2011, s 3 and Sch 4 item 42, by inserting paras (b)(iii) and (iv), effective 1 July 2011. For transitional provisions see note under s 108(2).
168(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 section 169.
History
S 168(2) amended by No 79 of 2011, s 3 and Sch 4 item 5, by inserting "(if any)", effective 26 July 2011.
168(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 section 169.
History
S 168(3) amended by No 79 of 2011, s 3 and Sch 4 item 5, by inserting "(if any)", effective 26 July 2011.
168(4)
In spite of 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 subsection 3(1) to a person who is the payment nominee or correspondence nominee, within the meaning of Part 8B, of the person to whom the information relates (the
principal
) as if the nominee were the principal.
History
S 168(4) inserted by Act No 95 of 2002, s 3 Sch 2 item 13, effective 1 July 2003.
168(5)
If:
(a)
the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and
(b)
in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information;
then, despite sections 164 and 167 of this Act, the Secretary or officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.
History
S 168(5) inserted by No 107 of 2020, s 3 and Sch 2 item 2, applicable in relation to a summons or notice served, or a requirement made, on or after 27 November 2020 (whether the information came into existence before, on or after 27 November 2020.
SECTION 169
169
Guidelines for exercise of Secretary's disclosure powers
The Minister may, by legislative instrument, 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 168(1)(a);
(b)
the Secretary's power under paragraph 168(1)(b).
History
S 169 substituted by No 79 of 2011, s 3 and Sch 4 item 6, effective 26 July 2011. No 79 of 2011, s 3 and Sch 4 item 7 contains the following transitional provisions:
7 Transitional - guidelines for exercise of Secretary's disclosure powers
(1)
Guidelines in force under section 169 of the A New Tax System (Family Assistance) (Administration) Act 1999 immediately before the commencement of this item continue in effect, after that commencement, as if they had been made under that section, as in force after that commencement.
(2)
Subitem (1) does not prevent the variation or revocation of the guidelines after that commencement.
S 169 formerly read:
SECTION 169 Guidelines for exercise of Secretary's disclosure powers
169(1)
The Minister:
(a)
is to determine guidelines for the exercise of:
(i)
the Secretary's power to give certificates for the purposes of paragraph 168(1)(a); and
(ii)
the Secretary's power under paragraph 168(1)(b); and
(b)
may revoke or vary those guidelines.
169(2)
A determination under subsection (1) is a legislative instrument.
History
S 169(2) amended by No 108 of 2006, s 3 and Sch 8 item 58, by substituting "legislative instrument" for "disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901", effective 27 September 2006.
SECTION 169A
169A
Disclosure of information - child care tax offset
(Repealed by No 49 of 2019)
History
S 169A repealed by No 49 of 2019, s 3 and Sch 4 item 66, effective 1 July 2019. S 169A formerly read:
SECTION 169A Disclosure of information - child care tax offset
169A(1)
The Secretary may, for the purposes of the administration of the child care tax offset provided by Subdivision 61-IA of the Income Tax Assessment Act 1997, give the Commissioner of Taxation information about people, including their tax file numbers, acquired by an officer in the exercise of the officer's powers, or the performance of the officer's duties or functions, under the family assistance law.
169A(2)
Information (including tax file numbers) given to the Commissioner of Taxation under subsection (1) may be used only for the purposes of the administration of the child care tax offset provided by Subdivision 61-IA of the Income Tax Assessment Act 1997.
169A(3)
This section does not limit the powers of the Secretary under section 168.
S 169A inserted by No 160 of 2005, s 3 and Sch 1 item 11, effective 19 December 2005.
SECTION 169B
169B
Disclosure of information - education expenses tax offset
(Repealed by No 109 of 2014)
History
S 169B repealed by No 109 of 2014, s 3 and Sch 10 item 12, effective 17 October 2014. S 169B formerly read:
SECTION 169B Disclosure of information - education expenses tax offset
169B(1)
The Secretary may, for the purposes of the administration of the education expenses tax offset provided by Subdivision 61-M of the Income Tax Assessment Act 1997, give the Commissioner of Taxation relevant information about people, including their tax file numbers, acquired by an officer in the exercise of the officer's powers, or the performance of the officer's duties or functions, under the family assistance law.
169B(2)
Information (including tax file numbers) given to the Commissioner of Taxation under subsection (1) may be used only for purposes relating to the education expenses tax offset provided by Subdivision 61-M of the Income Tax Assessment Act 1997.
169B(3)
This section does not limit the powers of the Secretary under section 168.
S 169B inserted by No 141 of 2008, s 3 and Sch 1 item 1, applicable to the 2008-2009 income year and later years.
SECTION 170
170
Officer's declaration
An officer must make a declaration in a form approved by the Minister or the Secretary if required to do so by the Minister or the Secretary for the purposes of the family assistance law.
Division 3 - False statements etc
Subdivision A - Preliminary
SECTION 171
171
Application of Division
This Division 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, who are making, or have made, a claim for family assistance; and
(c)
all persons, irrespective of their nationality, who have become entitled to, or been paid, family assistance.
(d)-(e)
(Repealed by No 22 of 2017)
History
S 171 amended by No 22 of 2017, s 3 and Sch 1 items 192 and 193, by substituting "assistance." for "assistance; and" in para (c) and repealing para (d) and (e), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (d) and (e) formerly read:
(d)
all persons, irrespective of their nationality, in respect of whom determinations of conditional eligibility for child care benefit by fee reduction are in force; and
(e)
all persons, irrespective of their nationality, who are eligible for child care benefit by fee reduction under section 47 of the Family Assistance Act.
S 171 amended by No 45 of 2000, s 3 Sch 2 item 130, by adding paras (d) and (e), effective 1 July 2000. For transitional provisions see note under s 69.
Subdivision B-Offences
SECTION 172
False statement in connection with claim
172(1)
A person contravenes this section if:
(a)
the person makes a statement; and
(b)
the statement is false or misleading; and
(c)
the person is reckless as to whether the statement is false or misleading; and
(d)
the statement is made in connection with, or in support of, the person's or any other person's claim for family assistance.
History
S 172 amended by No 22 of 2017, s 3 and Sch 1 item 194, by inserting "(1)" before "A person", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 172 substituted by No 137 of 2001, s 3 and Sch 1 item 22, effective 1 October 2001. S 172 formerly read:
False statement in connection with claim
172
A person must not knowingly or recklessly make a false or misleading statement in connection with, or in support of, the person's or any other person's claim for family assistance.
172(2)
The reference in paragraph (1)(d) to a claim for family assistance includes the following:
(a)
an application referred to in paragraph 67CD(4)(a) (ACCS (grandparent));
(b)
an application referred to in paragraph 67CD(6)(a) (ACCS (transition to work));
(c)
a declaration referred to in paragraph 67CH(1)(c) (ACCS (child wellbeing) for an approved provider).
History
S 172(2) inserted by No 22 of 2017, s 3 and Sch 1 item 195, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 173
False statement to deceive
173(1)
A person contravenes this section if:
(a)
the person makes a statement; and
(b)
the statement is false or misleading; and
(c)
the person is reckless as to whether the statement is false or misleading; and
(d)
the person is reckless as to whether the statement:
(i)
deceives, or might deceive, an officer or an approved provider exercising powers, or performing duties, under the family assistance law; or
(ii)
affects, or might affect, an entitlement to a payment of family assistance under the family assistance law; or
(iii)
affects, or might affect, the rate or amount of a payment of family assistance under the family assistance law; or
(iv)
affects, or might affect, eligibility for CCS for a child.
History
S 173(1) amended by No 22 of 2017, s 3 and Sch 1 item 196, by substituting para (d), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (d) formerly read:
(d)
the person is reckless as to whether the statement:
(i)
deceives, or might deceive, an officer or an approved child care service exercising powers, or performing duties or functions, under the family assistance law; or
(ii)
affects, or might affect, an entitlement to a payment of family assistance under the family assistance law; or
(iii)
affects, or might affect, the rate of a payment of family assistance under the family assistance law; or
(iv)
affects, or might affect, conditional eligibility for child care benefit by fee reduction, a weekly limit of hours, a CCB % or a schooling % applicable to a person, or the rate at which or amount in which fee reduction is applicable; or
(v)
affects, or might affect, a person's eligibility for the special grandparent rate for a child; or
(via)
affects, or might affect, eligibility for child care rebate under subsection 57EAA(1) of the Family Assistance Act, or the amount of child care rebate applicable under Subdivision AAB of Division 4AA of Part 3; or
(vi)
affects, or might affect, eligibility for child care rebate under subsection 57EA(1) of the Family Assistance Act, or the amount of child care rebate applicable under Subdivision AA of Division 4AA of Part 3.
S 173(1) amended by No 25 of 2011, s 3 and Sch 1 item 47, by inserting para (d)(via), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 173(1) amended by No 50 of 2009, s 3 and Sch 1 item 34, by substituting "child care rebate" for "child care tax rebate" in para (d)(vi) (wherever occurring), effective 24 June 2009.
S 173(1)(d)(vi) inserted by No 53 of 2008, s 3 and Sch 2 item 23, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 173(1) amended by No 118 of 2007, s 3 and Sch 1 item 67, by inserting ", or the rate at which or amount in which fee reduction is applicable" after "applicable to a person" in para (d)(iv), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 173(1) amended by No 132 of 2004, s 3 and Sch 4 item 39, by inserting para (d)(v), applicable to sessions of care provided in a week that commences after 1 January 2005.
173(2)
For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to the following elements of the offence:
(a)
the element that a power, duty or function is a power, duty or function under the family assistance law;
(b)
the element that a payment is a payment under the family assistance law.
History
S 173 substituted by No 137 of 2001. S 173 formerly read:
False statement to deceive
173
A person must not knowingly or recklessly make a false or misleading statement to:
(a)
deceive an officer or an approved child care service, exercising powers, or performing duties or functions, under the family assistance law; or
(b)
affect an entitlement to a payment of family assistance under the family assistance law; or
(c)
affect the rate of a payment of family assistance under the family assistance law; or
(d)
affect conditional eligibility for child care benefit by fee reduction, a weekly limit of hours, a CCB % or a schooling % applicable to a person.
S 173 amended by No 45 of 2000. For transitional provisions see note under s 69.
SECTION 174
False statement or document
174(1)
A person contravenes this subsection if:
(a)
the person makes a statement or presents a document to an officer or an approved provider exercising powers, or performing duties or functions, under the family assistance law; and
(b)
the statement or document is false in any particular; and
(c)
the person is reckless as to whether the statement or document is false in any particular.
History
S 174(1) amended by No 22 of 2017, s 3 and Sch 1 item 197, by substituting "provider" for "child care service" in para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
174(2)
For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to the element of the offence that a power, duty or function is a power, duty or function under the family assistance law.
History
S 174 substituted by No 137 of 2001, s 3 and Sch 1 item 24, effective 1 October 2001. S 174 formerly read:
False statement or document
174
A person must not knowingly or recklessly:
(a)
make to an officer or an approved child care service, exercising powers, or performing duties or functions, under the family assistance law a statement that is false in any particular; or
(b)
present to such an officer or an approved child care service a document that is false in any particular.
S 174 amended by No 45 of 2000, s 3 Sch 2 items 133 and 134, by inserting "or an approved child care service," after "officer" in para (a) and "or an approved child care service" after "officer" in para (b), effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 175
Obtaining payment where no entitlement
175(1)
A person contravenes this section if:
(a)
the person obtains a payment of family assistance; and
(b)
the person does so knowing that he or she is:
(i)
not entitled to the payment; or
(ii)
only entitled to part of the payment.
History
S 175 amended by No 22 of 2017, s 3 and Sch 1 items 198 and 199, by inserting "(1)" before "A person" and substituting para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (a) formerly read:
(a)
the person obtains a payment of family assistance (other than child care rebate for a week under Subdivision AAB or for a quarter under Subdivision AA of Division 4AA of Part 3); and
S 175 amended by No 25 of 2011, s 3 and Sch 1 item 48, by inserting "for a week under Subdivision AAB or" in para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 175 amended by No 50 of 2009, s 3 and Sch 1 item 35, by substituting "child care rebate" for "child care tax rebate" in para (a), effective 24 June 2009.
S 175 amended by No 53 of 2008, s 3 and Sch 2 item 24, by inserting "(other than child care tax rebate for a quarter under Subdivision AA of Division 4AA of Part 3)" in para (a), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 175 substituted by No 137 of 2001, s 3 and Sch 1 item 25, effective 1 October 2001. S 175 formerly read:
Knowingly obtaining payment where no entitlement
175
A person must not knowingly obtain a payment of family assistance to which the person is not entitled, or only entitled in part.
S 175 amended by No 45 of 2000, s 3 Sch 2 item 135, by omitting "or recklessly" after "knowingly", effective 1 July 2000. For transitional provisions see note under s 69.
175(2)
Paragraph (1)(a) is taken to include a reference to a provider or an individual who obtains a fee reduction amount.
History
S 175(2) inserted by No 22 of 2017, s 3 and Sch 1 item 200, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 175AA
175AA
Obtaining child care rebate for a quarter if ineligible
(Repealed by No 22 of 2017)
History
S 175AA repealed by No 22 of 2017, s 3 and Sch 1 item 201, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 175AA formerly read:
SECTION 175AA Obtaining child care rebate for a quarter if ineligible
175AA
A person contravenes this section if:
(a)
the person obtains a payment of child care rebate for a week under Subdivision AAB or for a quarter under Subdivision AA of Division 4AA of Part 3; and
(b)
the person does so knowing that he or she is:
(i)
ineligible for the payment; or
(ii)
only eligible for part of the payment.
S 175AA amended by No 25 of 2011, s 3 and Sch 1 item 49, by inserting "for a week under Subdivision AAB or" in para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 175AA amended by No 50 of 2009, s 3 and Sch 1 item 36, by substituting "child care rebate" for "child care tax rebate" in para (a), effective 24 June 2009.
S 175AA inserted by No 53 of 2008, s 3 and Sch 2 item 25, applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
SECTION 175A
175A
Obtaining fee reductions where no conditional eligibility or eligibility
(Repealed by No 22 of 2017)
History
S 175A repealed by No 22 of 2017, s 3 and Sch 1 item 201, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 175A formerly read:
SECTION 175A Obtaining fee reductions where no conditional eligibility or eligibility
175A(1)
An individual must not obtain fee reductions if the individual has not been determined to be conditionally eligible for child care benefit by fee reduction.
History
S 175A(1) amended by No 137 of 2001, s 3 and Sch 1 item 26, by omitting "knowingly" before "obtain", effective 1 October 2001.
175A(2)
An individual must not obtain an incorrect amount of fee reductions.
History
S 175A(2) amended by No 137 of 2001, s 3 and Sch 1 item 26, by omitting "knowingly" before "obtain", effective 1 October 2001.
175A(3)
If an approved child care service is not eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the service to a child at risk, the service must not, in respect of the child, obtain a payment under section 219Q or subsection 219QA(2) in respect of fee reduction.
History
S 175A(3) amended by No 118 of 2007, s 3 and Sch 1 item 68, by substituting all the words after ", in respect of the child,", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. The words formerly read:
obtain an amount of an advance paid under section 219R, to reimburse the service the amount of the fee reductions made by the service for care provided by the service to the child
S 175A(3) amended by No 137 of 2001, s 3 and Sch 1 item 26, by omitting ``knowingly'' before ``obtain'', effective 1 October 2001.
175A(3A)
For the purposes of an offence against section 177 that relates to a contravention of subsection (3) of this section, strict liability applies to the following elements of the offence:
(a)
the element that a child care service's lack of eligibility for a child care benefit is a lack of eligibility under section 47 of the Family Assistance Act;
(b)
the element that a payment in respect of fee reduction is paid to the service under section 219Q or subsection 219QA(2).
History
S 175A(3A) amended by No 118 of 2007, s 3 and Sch 1 item 69, by substituting para (b), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (b) formerly read:
(b)
the element that an amount of an advance paid to reimburse a child care service is an amount paid under section 219R.
S 175A(3A) inserted by No 137 of 2001, s 3 and Sch 1 item 27, effective 1 October 2001.
175A(4)
If an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the service to a child at risk, the service must not obtain an incorrect amount of a payment under section 219Q or section 219QA in respect of fee reduction.
History
S 175A(4) amended by No 118 of 2007, s 3 and Sch 1 item 70, by substituting all the words after "the service must not", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. The words formerly read:
obtain an incorrect amount of an advance, paid under section 219R, to reimburse the service the amount of the fee reductions made by the service for care provided by the service to the child.
S 175A(4) amended by No 137 of 2001, s 3 and Sch 1 item 28, by omitting "knowingly" before "obtain", effective 1 October 2001.
175A(4A)
For the purposes of an offence against section 177 that relates to a contravention of subsection (4) of this section, strict liability applies to the following elements of the offence:
(a)
the element that a child care service's eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;
(b)
the element that an incorrect amount of a payment is an incorrect amount of a payment under section 219Q or subsection 219QA(2).
History
S 175A(4A) amended by No 118 of 2007, s 3 and Sch 1 item 71, by substituting para (b), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (b) formerly read:
(b)
the element that an incorrect amount of an advance paid to reimburse a service is an incorrect amount paid under section 219R.
S 175A(4A) inserted by No 137 of 2001, s 3 and Sch 1 item 29, effective 1 October 2001.
S 175A inserted by No 45 of 2000, s 3 Sch 2 item 136, effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 176
Payment obtained by fraud
176(1)
A person contravenes this subsection if:
(a)
the person obtains a payment:
(i)
of family assistance; or
(ii)
under section 67EB (fee reduction amount); or
(iii)
under section 205A or 205C (business continuity payments); and
(b)
the person does so:
(i)
by means of impersonation; or
(ii)
by fraudulent means.
History
S 176(1) amended by No 26 of 2021, s 3 and Sch 1 item 11, by inserting "or 205C" in para (a)(iii), effective 27 March 2021. For application provisions, see note under s 205C.
176(2)
A person contravenes this subsection if:
(a)
the person makes a statement; and
(b)
the statement is false or misleading; and
(c)
the person is reckless as to whether the statement is false or misleading; and
(d)
the person obtains, as a result, a payment:
(i)
of family assistance; or
(ii)
under section 67EB (fee reduction amount); or
(iii)
under section 205A or 205C (business continuity payments).
History
S 176(2) amended by No 26 of 2021, s 3 and Sch 1 item 12, by inserting "or 205C" in para (d)(iii), effective 27 March 2021. For application provisions, see note under s 205C.
History
S 176 substituted by No 22 of 2017, s 3 and Sch 1 item 201, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 176 formerly read:
SECTION 176 Payment or fee reductions obtained by fraud
176(1)
A person contravenes this subsection if:
(a)
the person obtains:
(i)
a payment of family assistance; or
(ii)
fee reductions; or
(iii)
in the case of an approved child care service - an amount is paid under section 219Q or subsection 219QA(2) in respect of fee reduction, under section 219QC or subsection 219QD(2) in respect of child care rebate or under section 219RA as an enrolment advance; or
(iv)
in the case of an approved child care service - a payment under section 219RD (business continuity payments); and
(b)
the person does so:
(i)
by means of impersonation; or
(ii)
by fraudulent means.
History
S 176(1) amended by No 25 of 2011, s 3 and Sch 1 item 50, by substituting para (a)(iii), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). No 25 of 2011, s 3 and Sch 1 item 81 contains the following application provision:
81 Continued application of section 176 of the Family Assistance Administration Act
81
The amendments made by items 50 and 52 do not affect section 176 of the Family Assistance Administration Act as it applies in relation to payments obtained before the commencement of those items.
Para (a)(iii) formerly read:
(iii)
in the case of an approved child care service - an amount is paid either under section 219Q or subsection 219QA(2) in respect of fee reduction or as an enrolment advance under section 219RA; or
S 176(1) amended by No 34 of 2010, s 3 and Sch 1 items 11 and 12, by substituting "or" for "and" in para (a)(iii) and inserting para (a)(iv), effective 13 April 2010.
S 176(1) amended by No 118 of 2007, s 3 and Sch 1 item 72, by substituting para (a)(iii), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (a)(iii) formerly read:
(iii)
in the case of an approved child care service - an amount of an advance paid under section 219R to reimburse the service the amount of the fee reductions made by the service for care provided to a child; and
176(2)
For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to:
(a)
the element of the offence that a payment in respect of fee reduction is paid to the service under section 219Q or subsection 219QA(2); and
(aa)
the element of the offence that a payment in respect of child care rebate is paid to the service under section 219QC or subsection 219QD(2); and
(b)
the element of the offence that an enrolment advance is paid under section 219RA; and
(c)
the element of the offence that a payment is made under section 219RD.
History
S 176(2) amended by No 25 of 2011, s 3 and Sch 1 item 51, by inserting para (aa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 176(2) amended by No 34 of 2010, s 3 and Sch 1 item 13, by inserting para (c), effective 13 April 2010.
S 176(2) substituted by No 118 of 2007, s 3 and Sch 1 item 73, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 176(2) formerly read:
176(2)
For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to the element of the offence that an amount of an advance paid to reimburse a service is an amount paid under section 219R.
176(3)
A person contravenes this subsection if:
(a)
the person makes a statement; and
(b)
the statement is false or misleading; and
(c)
the person is reckless as to whether the statement is false or misleading; and
(d)
as a result the person obtains:
(i)
a payment of family assistance; or
(ii)
fee reductions; or
(iii)
in the case of an approved child care service - an amount is paid under section 219Q or subsection 219QA(2) in respect of fee reduction, under section 219QC or subsection 219QD(2) in respect of child care rebate or under section 219RA as an enrolment advance; or
(iv)
in the case of an approved child care service - a payment under section 219RD (business continuity payments).
History
S 176(3) amended by No 25 of 2011, s 3 and Sch 1 item 52, by substituting para (d)(iii), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). For application provisions see note under s 176(1). Para (d)(iii) formerly read:
(iii)
in the case of an approved child care service - an amount is paid either under section 219Q or subsection 219QA(2) in respect of fee reduction or as an enrolment advance under section 219RA; or
S 176(3) amended by No 34 of 2010, s 3 and Sch 1 item 14, by inserting para (d)(iv), effective 13 April 2010.
S 176(3) amended by No 118 of 2007, s 3 and Sch 1 item 74, by substituting para (d)(iii), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Para (d)(iii) formerly read:
(iii)
in the case of an approved child care service - an amount of an advance paid under section 219R to reimburse the service the amount of the fee reductions made by the service for care provided to a child.
176(4)
For the purposes of an offence against section 177 that relates to a contravention of subsection (3) of this section, strict liability applies to:
(a)
the element of the offence that a payment in respect of fee reduction is paid to the service under section 219Q or subsection 219QA(2); and
(aa)
the element of the offence that a payment in respect of child care rebate is paid to the service under section 219QC or subsection 219QD(2); and
(b)
the element of the offence that an enrolment advance is paid under section 219RA; and
(c)
the element of the offence that a payment is made under section 219RD.
History
S 176(4) amended by No 25 of 2011, s 3 and Sch 1 item 53, by inserting para (aa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 176(4) amended by No 34 of 2010, s 3 and Sch 1 item 15, by inserting para (c), effective 13 April 2010.
S 176(4) substituted by No 118 of 2007, s 3 and Sch 1 item 75, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 176(4) formerly read:
176(4)
For the purposes of an offence against section 177 that relates to a contravention of subsection (3) of this section, strict liability applies to the element of the offence that an amount of an advance paid to reimburse a service is an amount paid under section 219R.
S 176 substituted by No 137 of 2001, s 3 and Sch 1 item 30, effective 1 October 2001. S 176 formerly read:
Payment or fee reductions knowingly obtained by fraud
176
A person must not knowingly obtain:
(a)
a payment of family assistance; or
(b)
fee reductions; or
(c)
in the case of an approved child care service - an amount of an advance paid under section 219R to reimburse the service the amount of the fee reductions made by the service for care provided to a child;
by any of the following means:
(d)
by means of a false or misleading statement made knowingly or recklessly;
(e)
by means of impersonation;
(f)
by fraudulent means.
S 176 substituted by No 45 of 2000, s 3 Sch 2 item 137, effective 1 July 2000. For transitional provisions see note under s 69. S 176 formerly read:
Payment knowingly obtained through fraud etc
176
A person must not knowingly or recklessly obtain a payment of family assistance:
(a)
by means of a false or misleading statement made knowingly or recklessly; or
(b)
by means of impersonation; or
(c)
by fraudulent means.
Subdivision C-Penalties
SECTION 177
177
Penalty for contravention of Subdivision B
A person who contravenes a provision of Subdivision B commits an offence punishable on conviction by imprisonment for a term not exceeding 12 months.
History
S 177 amended by No 4 of 2016, s 3 and Sch 4 items 1 and 12, by substituting "commits" for "is guilty of", effective 10 March 2016.
SECTION 178
Repayment of family assistance
178(1)
If a person is convicted of an offence against section 177, the court may:
(a)
impose a penalty in respect of the offence; and
(b)
order the person to pay the Commonwealth an amount equal to any amount obtained by way of family assistance or payments under section 67EB, 205A or 205C because of the act, failure or omission that constituted the offence.
History
S 178(1) amended by No 26 of 2021, s 3 and Sch 1 item 13, by substituting ", 205A or 205C" for "or 205A" in para (b), effective 27 March 2021. For application provisions, see note under s 205C.
S 178(1) amended by No 22 of 2017, s 3 and Sch 1 item 202, by substituting para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (b) formerly read:
(b)
order the person to pay the Commonwealth an amount equal to any amount paid by way of family assistance, fee reductions, payments in respect of fee reduction, payments in respect of weekly child care rebate, enrolment advances or payments under section 219RD because of the act, failure or omission that constituted the offence.
S 178(1) amended by No 25 of 2011, s 3 and Sch 1 item 54, by inserting "payments in respect of weekly child care rebate," in para (b), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 178(1) amended by No 34 of 2010, s 3 and Sch 1 item 16, by substituting ", enrolment advances or payments under section 219RD" for "or enrolment advances" in para (b), effective 13 April 2010.
S 178(1) amended by No 118 of 2007, s 3 and Sch 1 item 76, by substituting ", payments in respect of fee reduction or enrolment advances" for "or advance" in para (b), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
S 178(1) amended by No 45 of 2000, s 3 Sch 2 item 138, by inserting ", fee reductions or advance" after "family assistance" in para (b), effective 1 July 2000. For transitional provisions see note under s 69.
178(2)
In spite of 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).
178(3)
For the purposes of this section, an amount of family assistance is taken to be paid to a person if that amount is applied against a liability of that person or another person for:
(a)
a primary tax; or
(b)
a debt under this Act or the Social Security Act 1991.
SECTION 179
Penalty where person convicted of more than one offence
179(1)
Subject to subsection (2), if a person is convicted of more than one offence against section 177, the court may, if it thinks fit, impose one penalty for all the offences.
179(2)
A single penalty imposed under subsection (1) must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed for each offence.
Subdivision D-Procedural matters
SECTION 180
180
Joining of charges
Charges against the same person for a number of offences against section 177 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.
SECTION 181
181
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.
SECTION 182
182
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.
SECTION 183
Evidentiary effect of Secretary's certificate
183(1)
For the purposes of paragraph 178(1)(b), a certificate signed by the Secretary is prima facie evidence of the matters specified in the certificate.
History
S 183(1) amended by No 61 of 2016, s 3 and Sch 3 item 5, by substituting "is prima facie evidence" for "is evidence", effective 21 October 2016.
183(2)
The certificate may specify:
(a)
the person to whom an amount of family assistance has been paid, or who has obtained a fee reduction amount because of an act, a failure or an omission for which the person or another person has been convicted of an offence against section 177; and
(b)
the amount paid or obtained; and
(c)
the act, failure or omission that caused the amount to be paid or obtained.
History
S 183(2) amended by No 22 of 2017, s 3 and Sch 1 items 203 and 204, by inserting ", or who has obtained a fee reduction amount" in para (a) and "or obtained" in para (b) and (c), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 184
184
Enforcement of court certificate as judgment
If:
(a)
a court makes an order under paragraph 178(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 7 - LIABILITY OF CERTAIN EMPLOYERS AND PRINCIPALS FOR OFFENCES
History
Part 7 heading substituted by No 137 of 2001, s 3 and Sch 1 item 31, effective 1 October 2001. The heading formerly read:
Part 7-Liability of corporations, employers and principals for offences
Division 1-Interpretation
SECTION 185
185
State of mind of a person
A reference in this Part to the state of mind of a person includes a reference to:
(a)
the knowledge, intention, opinion, belief or purpose of the person; and
(b)
the person's reasons for the intention, opinion, belief or purpose.
SECTION 186
186
Director of a corporation
(Repealed by No 137 of 2001)
History
S 186 substituted for s 186 to 188 by No 137 of 2001, s 3 and Sch 1 item 32, effective 1 October 2001. S 186 formerly read:
Director of a corporation
186
A reference in this Part to a director of a corporation includes a reference to a constituent member of a corporation incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
SECTION 187
187
Conduct
(Repealed by No 137 of 2001)
History
S 187 substituted for s 186 to 188 by No 137 of 2001, s 3 and Sch 1 item 32, effective 1 October 2001. S 187 formerly read:
Conduct
187
A reference in this Part to engaging in conduct includes a reference to failing or refusing to engage in conduct.
SECTION 188
188
Offence
A reference in this Part to an offence against this Act includes a reference to:
(a)
an offence against this Act that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code; or
(b)
an offence created by:
(i)
section 11.1, 11.4 or 11.5 of the Criminal Code; or
(ii)
section 6 of the Crimes Act 1914;
that relates to this Act.
History
S 188 amended by No 4 of 2010, s 3 and Sch 10 item 3, by inserting "or 11.2A" after "11.2" in para (a), effective 20 February 2010.
S 188 substituted for s 186 to 188 by No 137 of 2001.
Division 3 - Proceedings against non-corporations
[
CCH Note:
Division 2 was repealed by No 137 of 2001, s 3 and Sch 1 item 33, effective 1 October 2001. The Division formerly read:
Division 2 - Proceedings against corporations
State of mind of corporation
189
If, in proceedings for an offence against this Act in respect of conduct engaged in by a corporation, it is necessary to establish the state of mind of the corporation, it is sufficient to show that:
(a)
a director, employee or agent of the corporation engaged in that conduct; and
(b)
the director, employee or agent was, in engaging in the conduct, acting within the scope of the director's, employee's or agent's actual or apparent authority; and
(c)
the director, employee or agent had that state of mind.
Conduct of officer of corporation
190
If:
(a)
conduct is engaged in on behalf of a corporation by a director, employee or agent of the corporation; and
(b)
the conduct is within the scope of his or her actual or apparent authority;
the conduct is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in by the corporation unless the corporation establishes that it took reasonable precautions, and exercises due diligence, to avoid the conduct.
]
SECTION 191
191
State of mind of individual
If, in proceedings for an offence against this Act in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:
(a)
the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b)
the employee or agent had that state of mind.
SECTION 192
192
Conduct of employee or agent
If:
(a)
conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and
(b)
the conduct is within the scope of the employee's actual or apparent authority;
the conduct is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions, and exercised due diligence, to avoid the conduct.
SECTION 193
Exclusion of imprisonment as penalty for certain offences
Despite any other provision of this Act, if:
(a)
a person is convicted of an offence; and
(b)
the person would not have been convicted if sections 191 and 192 had not been in force;
the person is not liable to be punished by imprisonment for that offence.
PART 8 - APPROVAL OF PROVIDER OF CHILD CARE SERVICES
History
Pt 8 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Pt 8 formerly read:
PART 8 - APPROVAL OF CHILD CARE SERVICES AND REGISTERED CARERS
Division 1 - Approval of child care services
SECTION 194 Application for approval
Who may apply
194(1)
A person who operates, or proposes to operate, any of the following kinds of child care service:
(a)
a centre based long day care service;
(b)
a family day care service;
(ba)
an in-home care service;
(c)
an occasional care service;
(d)
an outside school hours care service;
may apply to the Secretary to have the service approved for the purposes of the family assistance law.
History
S 194(1) amended by No 138 of 2000, s 3 and Sch 2 item 9, by inserting para (ba), effective 1 January 2001.
Exception - person is a registered carer
194(2)
However, a person cannot make an application under subsection (1) if the person is a registered carer.
Form of application
194(3)
An application under subsection (1) must:
(a)
be made in a form and manner required by the Secretary; and
(b)
state which of the kinds of service mentioned in subsection (1) the service is; and
(c)
contain any information required by the Secretary; and
(d)
be accompanied by any documents required by the Secretary; and
(e)
in the case where a determination under section 206 is in force-be accompanied by the fee (if any) prescribed by the regulations for the making of applications under subsection (1).
194(4)
Despite subsection (1), an application is taken not to have been made if circumstances prescribed in an instrument under subsection (5) exist.
History
S 194(4) inserted by No 22 of 2017, s 3 and Sch 3 item 3, applicable in relation to applications made on or after 5 April 2017.
194(5)
The Minister may, by legislative instrument, prescribe circumstances for the purposes of subsection (4).
History
S 194(5) inserted by No 22 of 2017, s 3 and Sch 3 item 3, applicable in relation to applications made on or after 5 April 2017.
SECTION 195 Approval of child care services
Approval
195(1)
The Secretary must approve a child care service for the purposes of the family assistance law if the Secretary is satisfied that:
(a)
an application has been made in accordance with section 194 to have the service approved; and
(b)
the service is of the kind stated in the application; and
(ba)
if the operator of the service is a large long day care centre operator - the operator is financially viable and is likely to remain so; and
(c)
the service satisfies any eligibility rules applicable to the service under paragraph 205(1)(a); and
(d)
in the case where the service is covered by a determination in force under section 206 - if the service were to be approved, child care places would be allocated to the service under section 207.
History
S 195(1) amended by No 120 of 2011, s 3 and Sch 1 item 10, by inserting para (ba), effective 15 October 2011. For application provision see note under s 3(4B).
S 195(1) amended by No 79 of 2011, s 3 and Sch 5 item 8, by substituting "The" for "Subject to subsection (2), the", applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
S 195(1) amended by No 53 of 2008, s 3 and Sch 5 item 17, by substituting "the service is covered by a determination in force under section 206" for "a determination under section 206 is in force" in para (d), effective 25 June 2008.
S 195(1) amended by No 30 of 2003, s 3 and Sch 2 item 50, by substituting ``Subject to subsection (2), the Secretary'' for ``The Secretary'', effective 15 April 2003.
195(1A)
For the purpose of paragraph (1)(ba), in determining whether the operator of the child care service is financially viable, and likely to remain so, the Secretary must have regard to any financial information provided under section 219GA in relation to the operator. The Secretary may take into account any other matters he or she considers relevant.
History
S 195(1A) inserted by No 120 of 2011, s 3 and Sch 1 item 11, effective 15 October 2011. For application provision see note under s 3(4B).
195(2)
(Repealed by No 79 of 2011)
History
S 195(2) repealed by No 79 of 2011, s 3 and Sch 5 item 9, applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
S 195(2) formerly read:
Refusal
195(2)
The Secretary may refuse to approve a child care service for the purposes of the family assistance law if:
(a)
the service has previously been approved under section 195 for the purposes of the family assistance law; and
(b)
while the approval mentioned in paragraph (a) was in force, any of the following applied:
(i)
the Secretary did one or more of the things mentioned in paragraphs 200(1)(a) to (i) (which allow sanctions for breach of conditions for continued approval) in relation to the service;
(ia)
the Secretary suspended the approval of the service under section 201A;
(ib)
the Secretary suspended the approval of the service under section 219TSQ;
(ii)
the service was convicted of an offence under this Act.
S 195(2) amended by No 25 of 2011, s 3 and Sch 1 item 55, by substituting "paragraphs 200(1)(a) to (i)" for "paragraphs 200(1)(a) to (h)" in para (b)(i), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 195(2) amended by No 118 of 2007, s 3 and Sch 3 items 20 and 21, by substituting "any" for "either" in para (b) and inserting para (b)(ia) and (ib), effective 29 June 2007.
S 195(2) amended by No 118 of 2007, s 3 and Sch 1 item 77, by substituting "paragraphs 200(1)(a) to (h)" for "paragraphs 200(1)(a) to (e)" in para (b)(i), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Certificate of approval
195(3)
If the Secretary approves the service, the Secretary must give the applicant a certificate of approval, stating:
(a)
the kind of approved child care service; and
(b)
the day from which the approval operates.
History
S 195(3) substituted by No 45 of 2000, s 3 Sch 2 item 139, effective 1 July 2000. For transitional provisions see note under s 69. S 195(3) formerly read:
195(3)
If the Secretary approves the service, the Secretary must give the applicant a certificate of approval, stating the kind of approved child care service.
195(4)
For the purposes of paragraph (3)(b), the day from which the approval is expressed to operate:
(a)
may be a day before the day the Secretary approves the service; but
(b)
must not be a day that is earlier than 3 months before the day on which the application for the approval was made.
History
S 195(4) amended by No 22 of 2017, s 3 and Sch 3 item 9, by substituting "3 months" for "6 months" in para (b), applicable in relation to applications made on or after 1 July 2017.
S 195(4) substituted by No 118 of 2007, s 3 and Sch 3 item 22, applicable in relation to applications for approvals that are made after 29 June 2007. S 195(4) formerly read:
195(4)
For the purposes of paragraph (3)(b), the day from which the approval is expressed to operate may be a day before the day the Secretary approves the service.
S 195(4) inserted by No 45 of 2000, s 3 Sch 2 item 139, effective 1 July 2000. For transitional provisions see note under s 69.
Refusal
195(5)
The Secretary must refuse to approve a child care service for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).
History
S 195(5) inserted by No 79 of 2011, s 3 and Sch 5 item 10, applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
195(6)
If the Secretary refuses to approve a child care service for the purposes of the family assistance law, the Secretary must give the applicant notice of:
(a)
the refusal; and
(b)
the reasons for the refusal; and
(c)
the applicant's rights under this Act to seek a review of the refusal decision.
History
S 195(6) inserted by No 79 of 2011, s 3 and Sch 5 item 10, applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
SECTION 195A
SECTION 195A Obligations and permissions of an approved child care service are those of the operator
195A
For the purposes of the family assistance law:
(a)
when an obligation is imposed by that law or an approved child care service it is taken to be imposed on the person operating the service; and
(b)
when a permission is conferred by that law on an approved child care service it is taken to be conferred on the person operating the service.
History
S 195A amended by No 79 of 2011, s 3 and Sch 3 items 4 and 5, by omitting ", and an instrument under that law" after "family assistance law", and "or instrument" after "by that law" from paras (a) and (b), effective 22 August 2011.
S 195A inserted by No 50 of 2009, s 3 and Sch 5 item 9, effective 24 June 2009. No 50 of 2009, s 3 and Sch 5 item 10 contains the following application provision:
Application
(1)
Section 195A (as inserted) applies in relation to obligations imposed, and permissions conferred, before, at or after 24 June 2009.
(2)
For the purposes of section 195A (as inserted), Part 2 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 is taken to form part of the family assistance law.
SECTION 196 Conditions for continued approval-compliance with rules and laws
Eligibility requirements
196(1)
It is a condition for the continued approval of an approved child care service that the service satisfies any eligibility rules that are from time to time applicable to the service under paragraph 205(1)(b).
Compliance with family assistance law
196(2)
It is a condition for the continued approval of an approved child care service that the service not contravene an obligation imposed on the service by the family assistance law (whether or not such a contravention constitutes an offence or is of a civil penalty provision).
Note:
Enforcement under this Division of this and other conditions is not limited or affected by other compliance measures in this Act (for example, infringement notices, proceedings for civil penalty orders and prosecutions).
History
S 196(2) amended by No 53 of 2008, s 3 and Sch 4 items 4 and 5, by inserting "or is of a civil penalty provision" after "offence" and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
196(2A)
It is a condition for the continued approval of an approved child care service that the service cooperate with a person exercising powers under sections 219K, 219KA, 219L and 219LA.
History
S 196(2A) amended by No 120 of 2011, s 3 and Sch 1 item 12, by substituting ", 219KA, 219L and 219LA" for "and 219L", effective 15 October 2011. For application provision see note under s 3(4B).
S 196(2A) inserted by No 45 of 2000, s 3 Sch 2 item 140, effective 1 July 2000. For transitional provisions see note under s 69.
196(2B)
It is a condition for the continued approval of an approved child care service that the operator of the service cooperate with a person exercising powers under section 219KA.
History
S 196(2B) inserted by No 120 of 2011, s 3 and Sch 1 item 13, effective 15 October 2011. For application provision see note under s 3(4B).
Compliance with Commonwealth, State and Territory laws
196(3)
It is a condition for the continued approval of an approved child care service that:
(a)
the operation of the service; and
(b)
the provision of care by the service; and
(c)
the construction of the premises of the service; and
(d)
the equipment at the premises of the service;
comply with all applicable requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the service operates.
History
S 196(3) substituted by No 79 of 2011, s 3 and Sch 5 item 11, applicable on and after 26 July 2011, in relation to child care services approved before, on or after that commencement. S 196(3) formerly read:
Compliance with child care laws
196(3)
It is a condition for the continued approval of an approved child care service that the provision of care by the service complies with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the service is situated, relating to child care.
SECTION 196A
SECTION 196A Conditions for continued approval - financial viability
196A
It is a condition for the continued approval of an approved child care service that the operator of the service, if a large long day care centre operator, be likely to remain financially viable.
History
S 196A inserted by No 120 of 2011, s 3 and Sch 1 item 14, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 197
SECTION 197 Conditions for continued approval - child care places limit not to be exceeded
197
It is a condition for the continued approval of an approved child care service that, if the service is covered by a determination in force under section 206:
(a)
child care places are allocated to the service under section 207; and
(b)
the service does not provide child care places in excess of the number of any child care places allocated to the service under section 207.
History
S 197 amended by No 53 of 2008, s 3 and Sch 5 item 18, by substituting "the service is covered by a determination in force under section 206" for "a determination under section 206 is in force", effective 25 June 2008.
SECTION 198 Conditions for continued approval - compliance with conditions imposed by Minister
198(1)
It is a condition for the continued approval of an approved child care service that the service complies with any instrument in force under this section.
History
S 198(1) amended by No 108 of 2006, s 3 and Sch 8 item 59, by substituting "instrument" for "determination", effective 27 September 2006.
Imposition of other conditions
198(2)
The Minister may, by legislative instrument, impose conditions for the continued approval of a class of approved child care services.
History
S 198(2) amended by No 108 of 2006, s 3 and Sch 8 item 60, by substituting "by legislative instrument" for "by determination", effective 27 September 2006.
SECTION 199 Conditions for continued approval - compliance with conditions imposed by Secretary
199(1)
It is a condition for the continued approval of an approved child care service that the service complies with any conditions imposed under subsection (2).
199(2)
The Secretary may, by notice to a particular approved child care service, impose conditions for the continued approval of the service.
SECTION 199A
SECTION 199A Reassessment of continued approval
199A
The Secretary may at any time assess whether a child care service should continue to be approved for the purposes of the family assistance law.
History
S 199A inserted by No 22 of 2017, s 3 and Sch 3 item 5, applicable to a child care service approved before, on or after 5 April 2017.
SECTION 200 Consequences of breach of conditions for continued approval
Sanctions
200(1)
If the Secretary is satisfied that an approved child care service has not complied, or is not complying, with a condition for the continued approval of the service, the Secretary may do one or more of the following:
(a)
vary the conditions for the continued approval of the service imposed under subsection 199(2);
(b)
impose additional conditions for the continued approval of the service under subsection 199(2);
(c)
reduce the number of any child care places allocated to the service under section 207;
(d)
suspend the service's approval;
(e)
cancel the service's approval;
(f)
withhold the payment of enrolment advances to the service under section 219RA;
(g)
require the remittal to the Secretary of enrolment advances paid to the service under section 219RA;
(h)
suspend, for a maximum of 3 weeks, payment under section 219Q or subsection 219QA(2) in respect of fee reduction;
(i)
suspend, for a maximum of 3 weeks, payment under section 219QC or subsection 219QD(2) in respect of child care rebate.
History
S 200(1) amended by No 25 of 2011, s 3 and Sch 1 item 56, by inserting para (i), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 200(1) amended by No 53 of 2008, s 3 and Sch 5 item 19, by inserting "any" after "of" in para (c), effective 25 June 2008.
S 200(1) amended by No 118 of 2007, s 3 and Sch 1 item 78, by inserting paras (f), (g) and (h) at the end, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Notice of sanction
200(2)
If the Secretary does one or more of the things mentioned in paragraphs (1)(a) to (h), the Secretary must give notice to the service that the Secretary has done so. The notice must specify the day, no earlier than the day on which the notice is given, on which the sanction takes effect.
History
S 200(2) amended by No 118 of 2007, s 3 and Sch 3 item 23, by inserting "The notice must specify the day, no earlier than the day on which the notice is given, on which the sanction takes effect." at the end, applicable in relation to notices given on or after 29 June 2007.
S 200(2) amended by No 118 of 2007, s 3 and Sch 1 item 79, by substituting "paragraphs (1)(a) to (h)" for "paragraphs (1)(a) to (e)", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Revocation of suspension
200(3)
If the Secretary suspends the approval of an approved child service, the Secretary may at any time, by notice to the service, revoke the suspension with effect from the day specified in the notice.
Revocation of enrolment advance withholding
200(3A)
If the Secretary withholds the payment of enrolment advances to the service, the Secretary may at any time, by notice to the service, revoke the withholding with effect from the day specified in the notice.
History
S 200(3A) inserted by No 118 of 2007, s 3 and Sch 1 item 80, effective 29 June 2007.
Revocation of suspension of payment in respect of fee reduction
200(3B)
If the Secretary suspends payment in respect of fee reduction, the Secretary may at any time, by notice to the service revoke the suspension. If the suspension is revoked, all payments under section 219Q or subsection 219QA(2) that would have been paid but for the suspension must be paid.
History
S 200(3B) inserted by No 118 of 2007, s 3 and Sch 1 item 80, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Revocation of suspension of payment in respect of child care rebate
200(3C)
If the Secretary suspends payment in respect of child care rebate, the Secretary may at any time, by notice to the service revoke the suspension. If the suspension is revoked, all payments under section 219QC or subsection 219QD(2) that would have been paid but for the suspension must be paid.
History
S 200(3C) inserted by No 25 of 2011, s 3 and Sch 1 item 57, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Secretary to have regard to any Ministerial determination
200(4)
The Secretary must have regard to any determination under subsection (5) in exercising a power under subsection (1) or (3).
Ministerial determination
200(5)
The Minister may, by legislative instrument, determine:
(a)
factors to be taken into account by the Secretary in applying subsection (1) to approved child care services; or
(b)
factors to be taken into account by the Secretary in specifying the date of effect of a revocation of a suspension under subsection (3).
History
S 200(5) amended by No 108 of 2006, s 3 and Sch 8 item 61, by inserting ", by legislative instrument," after "Minister may", effective 27 September 2006.
SECTION 201 Procedure for imposing a sanction
201(1)
Before doing a thing mentioned in paragraphs 200(1)(a) to (i), the Secretary must give a notice to the service concerned that:
(a)
states that the Secretary is considering doing the thing; and
(b)
sets out the grounds for doing the thing; and
(c)
summarises the evidence and other material on which those grounds are based; and
(d)
summarises the effect of the doing of the thing (including the review process provided for under this Act) on a person's entitlement to child care benefit in respect of child care provided by the service; and
(e)
invites the service to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.
History
S 201(1) amended by No 25 of 2011, s 3 and Sch 1 item 58, by substituting "paragraphs 200(1)(a) to (i)" for "paragraphs 200(1)(a) to (h)", applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 201(1) amended by No 118 of 2007, s 3 and Sch 1 item 81, by substituting "paragraphs 200(1)(a) to (h)" for "paragraphs 200(1)(a) to (e)", effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
201(2)
The Secretary must have regard to any submissions made by the service as mentioned in paragraph (1)(e) in deciding whether to do the thing.
SECTION 201A Immediate suspension for certain breaches
201A(1)
The Secretary may, by notice given to an approved child care service, suspend the approval of the service if the Secretary reasonably believes that:
(a)
the service is not complying with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the service is situated, relating to child care; or
(b)
there is an imminent threat to the health or safety of a child, or children, because of the care provided by the service to the child or children; or
(c)
due to urgent circumstances, it is no longer appropriate for the service to provide child care.
201A(2)
The Secretary must, in the notice:
(a)
specify a day, not earlier than the day on which the notice is given, on which the suspension is to take effect; and
(b)
specify the grounds upon which the Secretary has suspended the service's approval; and
(c)
inform the service of its rights under this Act to seek a review of the decision to suspend the service's approval.
201A(3)
If the Secretary suspends the approval of an approved child care service, the Secretary may at any time, by notice to the service, revoke the suspension with effect from the day specified in the notice.
History
S 201A inserted by No 118 of 2007, s 3 and Sch 3 item 24, effective 29 June 2007.
SECTION 201B Publicising sanctions or suspensions
201B(1)
If the Secretary:
(a)
does one or more of the things mentioned in paragraphs 200(1)(a) to (i); or
(b)
suspends the approval of a service under subsection 201A(1);the Secretary may publicise this in any way the Secretary thinks appropriate.
History
S 201B(1) amended by No 25 of 2011, s 3 and Sch 1 item 59, by substituting "paragraphs 200(1)(a) to (i)" for ""paragraphs 200(1)(a) to (h)" in para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
201B(2)
Without limiting subsection (1), the Secretary may publicise information that includes the following:
(a)
the name and address of the service;
(b)
the name of the operator of the service;
(c)
if the information relates to the doing of one or more of the things mentioned in paragraphs 200(1)(a) to (i):
(i)
the day when each thing done starts to have effect; and
(ii)
the things done; and
(iii)
each condition for the continued approval of the service that the service has not complied, or is not complying, with; and
(iv)
the day (if any) when each thing done ceases to have effect;
(d)
if the information relates to a suspension under subsection 201A(1):
(i)
the day when the suspension starts to have effect; and
(ii)
the grounds for the suspension; and
(iii)
the day (if any) when the suspension ceases to have effect.
History
S 201B(2) amended by No 25 of 2011, s 3 and Sch 1 item 59, by substituting "paragraphs 200(1)(a) to (i)" for "paragraphs 200(1)(a) to (h)" in para (c), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
History
S 201B inserted by No 53 of 2008, s 3 and Sch 5 item 20, applicable in relation to:
(a) a thing done under subsection 200(1) of the A New Tax System (Family Assistance) Administration) Act 1999 after 25 June 2008 (whether or not the thing is done in relationto non-compliance happening before that commencement); and
(b) a decision to suspend under subsection 201A(1) of that Act made after that commencement (whether or not the grounds for the suspension happen before that commencement).
SECTION 202 Cancellation
Scope of section
202(1)
This section sets out circumstances, in addition to those in section 200, in which the Secretary may, or must, cancel the approval of an approved child care service.
Cancellation on request
202(2)
The Secretary may cancel an approved child care service's approval if the service requests the Secretary in writing to do so.
Cancellation if service should not have been approved
202(3)
The Secretary must cancel an approved child care service's approval if the Secretary is satisfied that the service should not have been approved.
Cancellation if service fails to provide child care for 3 continuous months
202(4)
The Secretary must cancel an approved child care service's approval if the service fails to provide child care for a continuous period of 3 months, unless the Secretary is satisfied that, because of special circumstances affecting the service, the approval should not be cancelled.
202(4A)
The Secretary must cancel an approved child care service's approval if the service ceases to be operated by the person on whose application the approval was granted.
History
S 202(4A) inserted by No 30 of 2003, s 3 and Sch 2 item 51, effective 15 April 2003.
Notice to service
202(5)
If the Secretary cancels an approved child care service's approval under this section, the Secretary must give notice to the service that the Secretary has done so.
Secretary to have regard to any Ministerial determination
202(6)
The Secretary must have regard to any determination under subsection (7) in exercising a power under subsection (2).
Ministerial determination
202(7)
The Minister may, by legislative instrument, determine factors to be taken into account by the Secretary in deciding whether to grant a request under subsection (2).
History
S 202(7) amended by No 108 of 2006, s 3 and Sch 8 item 62, by inserting ", by legislative instrument," after "Minister may", effective 27 September 2006.
SECTION 203 Procedure for cancellation
203(1)
Before cancelling an approved child care service's approval under subsection 202(3) or (4), the Secretary must give a notice to the service that:
(a)
states that the Secretary is considering cancelling the service's approval; and
(b)
sets out the grounds on which the cancellation is being considered; and
(c)
summarises the evidence and other material on which those grounds are based; and
(d)
summarises the effect of the notice (including the review processes provided for under this Act) on a person's entitlement to child care benefit in respect of child care provided by the service; and
(e)
invites the service to make written submissions to the Secretary, within 28 days, stating why the approval should not be cancelled.
203(2)
The Secretary must have regard to any submissions made by the service as mentioned in paragraph (1)(e) in deciding whether to cancel the approval.
SECTION 204 Notification of matters affecting eligibility for approval
204(1)
If an approved child care service has:
(a)
after the service was approved, become aware of any matter existing when the service was approved as a result of which the service should not have been approved; or
(b)
become aware of any matter occurring after the service was approved as a result of which a condition for the continued approval of the service has not been complied with;
the service must notify the Secretary in writing of the matter as soon as practicable after becoming aware of it.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
204(2)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 20 penalty units.
History
S 204 amended by No 53 of 2008, s 3 and Sch 4 items 6 to 8, by repealing the penalty and inserting the note and s 204(2) at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 20 penalty units.
SECTION 204A Notifying individuals about effect on entitlement to child care benefit of actions by approved child care services
Breach of conditions by approved child care service
204A(1)
If the Secretary is satisfied that an approved child care service:
(a)
has not complied with a condition for the continued approval of the service; or
(b)
is not complying with a condition for the continued approval of the service;the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected if the Secretary were to suspend or cancel the service's approval because of the Secretary being so satisfied.
204A(2)
A notice under subsection (1) must:
(a)
state that the Secretary is satisfied that the service has not complied, or is not complying, with a condition for the continued approval of the service; and
(b)
set out the effect on that entitlement if the Secretary were to suspend or cancel the service's approval because of the Secretary being so satisfied.A notice under subsection (1) may set out any other information that the Secretary thinks relevant.
Suspension or cancellation of approved child care service's approval
204A(3)
If the Secretary suspends or cancels an approved child care service's approval, the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected because of the suspension or cancellation.
204A(4)
A notice under subsection (3) must:
(a)
state that the Secretary has suspended or cancelled the service's approval; and
(b)
set out the effect on that entitlement because of the suspension or cancellation.A notice under subsection (3) may set out any other information that the Secretary thinks relevant.
Form and manner or way of notice
204A(5)
A notice under this section must be in the form, and in the manner or way, approved by the Secretary.
History
S 204A inserted by No 118 of 2007, s 3 and Sch 3 item 25, effective 29 June 2007. No 118 of 2007, s 3 and Sch 3 item 43 contains the following application provision:
Application of item 25
(1)
Subsection 204A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, applies in relation to suspensions or cancellations that occur before or after 29 June 2007.
(2)
Subsection 204A(3) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, applies in relation to suspensions or cancellations that occur before or after 29 June 2007.
SECTION 205 Eligibility rules for child care services
Eligibility rules
205(1)
The Minister may, by legislative instrument, determine:
(a)
rules relating to the eligibility of child care services to become approved for the purposes of the family assistance law; and
(b)
rules relating to the eligibility of those services to continue to be so approved.
History
S 205(1) amended by No 108 of 2006, s 3 and Sch 8 item 63, by inserting ", by legislative instrument," after "Minister may", effective 27 September 2006.
Eligibility rules may deal with who may operate a service and change of operator of a service
205(2)
Without limiting subsection (1), rules made under that subsection may specify requirements:
(a)
to be met by the operators and staff of services, including requirements relating to individual suitability to provide child care; and
(b)
to be met by the operator of a service if the operation of the service is proposed to be transferred from one operator to another.
Exemption from eligibility rules
205(3)
The Secretary may also determine that one or more of the rules do not apply to:
(a)
specified child care services; or
(b)
child care services of a specified class or of specified classes.
205(4)
A determination under paragraph (3)(b) is a legislative instrument.
History
S 205(4) inserted by No 108 of 2006, s 3 and Sch 8 item 64, effective 27 September 2006.
SECTION 206
SECTION 206 GUIDELINES FOR ALLOCATION OF CHILD CARE PLACES TO APPROVED CHILD CARE SERVICES
206
The Minister may, by legislative instrument, determine guidelines about the following:
(a)
procedures relating to the allocation of child care places to approved child care services;
(b)
matters to be taken into account in working out the number (if any) of child care places to be allocated to approved child care services;
(c)
the maximum number of places that can be allocated to approved child care services in a specified class;
(d)
any other matters to be taken into account in making such an allocation;
(e)
procedures relating to the reduction under section 207A of the number of child care places allocated to approved child care services;
(f)
matters to be taken into account in working out the number of child care places by which the number of child care places allocated to approved child care services may be reduced under section 207A;
(g)
any other matters to be taken into account in reducing or deciding whether to reduce, under section 207A the number of child care places allocated to approved child care services.
Note:
Guidelines under this section may refer to one or more classes of approved child care services (see subsection 13(3) of the Legislation Act 2003).
History
S 206 amended by No 126 of 2015, s 3 and Sch 1 item 19, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003" in the note, effective 5 March 2016.
S 206 amended by No 53 of 2008, s 3 and Sch 5 item 21, by inserting the note at the end, effective 25 June 2008.
S 206 amended by No 108 of 2006, s 3 and Sch 8 item 65, by inserting ", by legislative instrument," after "Minister may", effective 27 September 2006.
S 206 amended by No 36 of 2006, s 3 and Sch 5 item 3, by inserting paras (e), (f) and (g) at the end, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 4 May 2006. This amendment does not affect the validity after 4 May 2006 of a determination that was in force under that section immediately before that commencement date.
SECTION 207 Secretary to allocate child care places
Initial allocation of child care places
207(1)
The Secretary must allocate child care places to an approved child care service covered by a determination in force under section 206. The Secretary must do so in accordance with the determination.
History
S 207(1) substituted by No 53 of 2008, s 3 and Sch 5 item 22, effective 25 June 2008. S 207(1) formerly read:
Initial allocation of child care places
207(1)
The Secretary must allocate child care places to approved child care services in accordance with any determination under section 206.
Additional allocation of child care places
207(2)
If an approved child care service is allocated child care places under subsection (1), the service may apply to the Secretary for an additional allocation of child care places.
207(3)
The application must:
(a)
be made in a form and manner required by the Secretary; and
(b)
contain any information required by the Secretary; and
(c)
be accompanied by any documents required by the Secretary; and
(d)
be accompanied by the fee (if any) prescribed by the regulations for the making of applications under subsection (2).
207(4)
The Secretary must, in accordance with the determination under section 206, decide whether or not to grant the application.
207(5)
The Secretary must give the applicant notice of the decision under subsection (4). If the Secretary decides to grant the application, the Secretary must allocate the additional child care places to the applicant.
SECTION 207A REDUCTION OF ALLOCATION OF CHILD CARE PLACES BY UNUSED OR UNUSABLE PLACES
207A(1)
The Secretary may, in accordance with a determination under section 206, reduce the number of child care places allocated to an approved child care service if:
(a)
that number exceeds the number of child care places provided by the service; or
(b)
that number exceeds the number of child care places that the service is, under a law of a State or Territory, licensed to provide.
The reduction must not be greater than the excess.
207A(2)
Before the reduction, the Secretary must (unless subsection (3) applies) give a notice to the service that:
(a)
states that the Secretary proposes to make the reduction; and
(b)
states the number of places by which the Secretary proposes to reduce the number of places allocated to the service; and
(c)
invites the service to make written submissions to the Secretary about the proposed reduction; and
(d)
is not inconsistent with a determination under section 206.
207A(3)
If the service has informed the Secretary in writing that the number of child care places allocated to the service may be reduced, the Secretary may give the service a notice under subsection (2) before making the reduction.
207A(4)
The Secretary must have regard to any submissions made by the service in deciding whether to make the reduction.
207A(5)
If the Secretary reduces under this section the number of child care places allocated to an approved child care service, the Secretary must give the service a notice that states:
(a)
the number of places by which the number of places allocated to the service is reduced; and
(b)
the day on which the reduction takes effect, which must not be earlier than the day on which the notice is given; and
(c)
the number of places allocated to the service, taking account of the reduction.
History
S 207A inserted by No 36 of 2006, s 3 and Sch 5 item 4, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 3 May 2006.
Act No 36 of 2006, s 3 and Sch 5 contains the following provision:
7 Effect of earlier voluntary relinquishment of places
(1)
This item applies if, before 4 May 2006:
(a)
an approved child care service and an officer agreed that the service would voluntarily relinquish a number of child care places that had been allocated to the service; and
(b)
the agreement was acknowledged in writing by an officer.
(2)
Division 1 of Part 8 of the A New Tax System (Family Assistance) (Administration) Act 1999 has effect on and after 4 May 2006 as if the number of places that the service agreed to relinquish had not been allocated to the service.
SECTION 207B EFFECT OF REDUCTION IN ALLOCATION OF CHILD CARE PLACES
207B(1)
This section explains the effect of a reduction under this Division of the number of child care places allocated to an approved child care service.
Note:
A reduction may be made under section 200 or section 207A.
207B(2)
This Division has effect after the reduction as if there had not been allocated to the service the number of places by which the number of places allocated to the service was reduced.
Note:
This affects the operation of paragraph 197(b) for the service, It could also affect the making of allocations of child care places to other approved child care services after the reduction.
History
S 207B inserted by No 36 of 2006, s 3 and Sch 5 item 4, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 4 May 2006.
Act No 36 of 2006, s 3 and Sch 5 contains the following provision:
7 Effect of earlier voluntary relinquishment of places
(1)
This item applies if, before 4 May 2006:
(a)
an approved child care service and an officer agreed that the service would voluntarily relinquish a number of child care places that had been allocated to the service; and
(b)
the agreement was acknowledged in writing by an officer.
(2)
Division 1 of Part 8 of the A New Tax System (Family Assistance) (Administration) Act 1999 has effect on and after 4 May 2006 as if the number of places that the service agreed to relinquish had not been allocated to the service.
SECTION 208
SECTION 208 Disallowable instruments
208
(Repealed by No 108 of 2006)
History
S 208 repealed by No 108 of 2006, s 3 and Sch 8 item 66, effective 27 September 2006. S 208 formerly read:
SECTION 208 Disallowable instruments
208
A determination under subsection 198(2), 200(5), 202(7) or 205(1) or paragraph 205(3)(b) or section 206 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 2 - Approval as registered carers
SECTION 209 Application for approval as registered carer
Who may apply
209(1)
An individual who provides care, or proposes to provide care, for a child or children may apply to the Secretary to be approved as a registered carer for the purposes of the family assistance law.
Exception-individual operates child care service etc
209(2)
However, an individual cannot make an application under subsection (1) if the individual:
(a)
operates an approved child care service; or
(b)
operates a child care service that is receiving financial assistance from the Commonwealth in connection with its operational costs, where the provision of that assistance is administered by the Department; or
(c)
provides child care under a contract with an approved family day care service; or
(d)
provides child care under a contract with an approved in-home care service.
History
S 209(2) amended by No 138 of 2000, s 3 and Sch 2 item 10, by inserting para (d), effective 1 January 2001.
Form of application
209(3)
An application under subsection (1) must:
(a)
be made in a form and manner; and
(b)
contain any information; and
(c)
be accompanied by any documents;
required by the Secretary.
SECTION 210 Approval of registered carers
Registration
210(1)
The Secretary must approve an individual as a registered carer for the purposes of the family assistance law if:
(a)
the individual has made an application in accordance with section 209; and
(b)
the individual either:
(i)
meets the age requirement in subsection (2); or
(ii)
has a qualification of a kind specified in a determination under subsection (4); and
(c)
the Secretary is satisfied that the applicant meets the requirements of section 211.
Age requirement
210(2)
For the purposes of subparagraph (1)(b)(i), an individual meets the age requirement if:
(a)
in the case where a determination under subsection (3) is in force-the individual has turned the age specified in the determination; or
(b)
in any other case-the individual has turned 18.
210(3)
The Minister may, by legislative instrument, determine that an individual must have turned the age specified in the determination for the individual to be eligible to be approved as a registered carer.
History
S 210(3) amended by No 108 of 2006, s 3 and Sch 8 item 67, by inserting ", by legislative instrument," after "Minister may", effective 27 September 2006.
Qualification requirement
210(4)
The Minister may, by legislative instrument, determine that an individual who does not meet the age requirement in subsection (2) must have a qualification of a kind specified in the determination for the individual to be eligible to be approved as a registered carer.
History
S 210(4) amended by No 108 of 2006, s 3 and Sch 8 item 68, by inserting ", by legislative instrument," after "Minister may", effective 27 September 2006.
Certificate of approval of registration
210(5)
If the Secretary approves an applicant as a registered carer, the Secretary must give the applicant a certificate of approval.
SECTION 211 Statement that applicant has tax file number
211(1)
An applicant meets the requirements of this section if:
(a)
the applicant has a tax file number; and
(b)
the application contains a statement to that effect.
211(2)
The Secretary must accept a statement made under paragraph (1)(b) unless the Commissioner of Taxation has informed the Secretary that the applicant does not have a tax file number.
211(3)
This section does not authorise the Secretary:
(a)
to require or request a person to quote the person's tax file number; or
(b)
to seek or obtain, in any way, a person's tax file number; or
(c)
to record a person's tax file number.
211(4)
The Secretary may ask the Commissioner of Taxation to provide information on whether an applicant has a tax file number.
SECTION 212 When approval comes into force
212(1)
An approval of an applicant as a registered carer is taken to have come into force on the later of the following days:
(a)
the day on which, in the Secretary's opinion, the applicant was first eligible to be approved;
(b)
the day occurring 12 months before the day on which the application for approval was made.
212(2)
Subject to this Division, an approval remains in force at all times after it came into force.
212(3)
If the Secretary is satisfied that the applicant was not eligible to be approved during a period occurring after the day the applicant's approval came into force but before the day on which the application was made, the Secretary may determine that the approval is taken not to have been in force during that period.
SECTION 213 Conditions of continued approval
Compliance with child care laws
213(1)
It is a condition for the continued approval of an individual as a registered carer that the provision of care by the individual complies with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the care is provided, relating to child care.
Conditions imposed by notice on individual
213(2)
The Secretary may, by notice to a particular registered carer, impose other conditions for the continued approval of the carer.
Conditions imposed by Minister
213(3)
The Minister may, by legislative instrument, impose other conditions for the continued approval of individuals as registered carers.
History
S 213(3) amended by No 108 of 2006, s 3 and Sch 8 item 69, by substituting "by legislative instrument" for "by determination", effective 27 September 2006.
SECTION 214 Consequences of breach of conditions for continued approval
Sanctions
214(1)
If the Secretary is satisfied that a registered carer has not complied, or is not complying, with a condition for the continued approval of the carer, the Secretary may do one or more of the following:
(a)
vary the conditions for the continued approval of the carer imposed under subsection 213(2);
(b)
impose additional conditions for the continued approval of the carer under subsection 213(2);
(c)
suspend the carer's approval;
(d)
cancel the carer's approval.
Notice of sanction
214(2)
If the Secretary does one or more of the things mentioned in paragraphs (1)(a) to (d), the Secretary must give notice to the registered carer that the Secretary has done so.
Revocation of suspension
214(3)
If the Secretary suspends the approval of a registered carer, the Secretary may at any time, by notice to the carer, revoke the suspension with effect from the day specified in the notice.
Secretary to have regard to any Ministerial determination
214(4)
The Secretary must have regard to any determination under subsection (5) in exercising a power under subsection (1) or (3).
Ministerial determination
214(5)
The Minister may, by legislative instrument, determine:
(a)
factors to be taken into account by the Secretary in applying subsection (1) to registered carers; or
(b)
factors to be taken into account by the Secretary in specifying the date of effect of a revocation of a suspension under subsection (3).
History
S 214(5) amended by No 108 of 2006, s 3 and Sch 8 item 70, by inserting ", by legislative instrument," after "Minister may", effective 27 September 2006.
SECTION 215 Procedure for imposing a sanction
215(1)
Before doing a thing mentioned in paragraphs 214(1)(a) to (d), the Secretary must give a notice to the registered carer concerned that:
(a)
states that the Secretary is considering doing the thing; and
(b)
sets out the grounds for doing the thing; and
(c)
summarises the evidence and other material on which those grounds are based; and
(d)
summarisesthe effect of the doing of the thing (including the review process provided for under this Act) on a person's entitlement to child care benefit in respect of child care provided by the carer; and
(e)
invites the carer to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.
215(2)
The Secretary must have regard to any submissions made by the carer as mentioned in paragraph (1)(e) in deciding whether to do the thing.
SECTION 216 Cancellation
Scope of section
216(1)
This section sets out circumstances, in addition to those in section 214, in which the Secretary must cancel the approval of a registered carer.
Cancellation on request
216(2)
The Secretary must cancel a registered carer's approval if the carer requests the Secretary in writing to do so.
Cancellation if carer should not have been approved
216(3)
The Secretary must cancel a registered carer's approval if the Secretary is satisfied that the carer should not have been approved.
Notice to service
216(4)
If the Secretary cancels a registered carer's approval under this section, the Secretary must give notice to the carer that the Secretary has done so.
SECTION 217 Procedure for cancellation under subsection 216(3)
217(1)
Before cancelling a registered carer's approval under subsection 216(3), the Secretary must give a notice to the carer that:
(a)
states that the Secretary is considering cancelling the carer's approval; and
(b)
sets out the grounds on which the cancellation is being considered; and
(c)
summarises the evidence and other material on which those grounds are based; and
(d)
summarises the effect of the notice (including the review processes provided for under this Act) on a person's entitlement to child care benefit in respect of child care provided by the carer; and
(e)
invites the carer to make written submissions to the Secretary, within 28 days, stating why the approval should not be cancelled.
217(2)
The Secretary must have regard to any submissions made by the carer as mentioned in paragraph (1)(e) in deciding whether to cancel the approval.
SECTION 218
SECTION 218 Notification of matters affecting eligibility for approval
218
If a registered carer has:
(a)
after the carer was approved, become aware of any matter existing when the carer was approved as a result of which the carer should not have been approved; or
(b)
become aware of any matter occurring after the carer was approved as a result of which a condition for the continued approval of the carer has not been complied with;
the carer must notify the Secretary in writing of the matter as soon as practicable after becoming aware of it.
Penalty: 20 penalty units.
SECTION 219
SECTION 219 Disallowable instruments
219
(Repealed by No 108 of 2006)
History
S 219 repealed by No 108 of 2006, s 3 and Sch 8 item 71, effective 27 September 2006. S 219 formerly read:
SECTION 219 Disallowable instruments
219
A determination under subsection 210(3) or (4), 213(3) or 214(5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 1 - Provider approval
History
Div 1 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8 heading.
SECTION 194A
Application for approval
Application
194A(1)
Any of the following (a
provider
):
(a)
an individual;
(b)
a body corporate;
(c)
a partnership;
(d)
an entity or body prescribed by the Minister's rules;
may apply to be approved for the purposes of the family assistance law in respect of one or more child care services that the provider operates or proposes to operate.
194A(2)
The application must:
(a)
be given in a form and manner approved by the Secretary; and
(b)
contain any information prescribed by the Secretary's rules; and
(c)
contain any other information, and be accompanied by the documents, required by the Secretary.
194A(3)
An application is taken not to have been made:
(a)
if the application does not comply with subsection (2); or
(b)
in circumstances prescribed by the Minister's rules.
History
S 194A inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 194B
Provider approval
Provider approval
194B(1)
The Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied that:
(a)
the provider satisfies the provider eligibility rules in section 194C; and
(b)
the provider operates, or will operate, at least one child care service that satisfies the service eligibility rules in section 194D.
Approval in respect of child care service
194B(2)
If the Secretary approves a provider under subsection (1), the Secretary:
(a)
must approve the provider in respect of at least one child care service that meets the requirements in subsection (3); and
(b)
may approve the provider in respect of one or more other child care services that meet the requirements in subsection (3).
194B(3)
For a provider to be approved in respect of a child service, the Secretary must be satisfied that the service:
(a)
is or will be operated by the provider; and
(b)
satisfies the service eligibility rules in section 194D.
Notice of approval
194B(4)
If the Secretary approves the provider, the Secretary must give notice to the provider stating:
(a)
the child care services in respect of which the provider is approved; and
(b)
the type and address of each service; and
(c)
the day on which the provider's approval takes effect; and
(d)
the day on which the provider's approval in respect of each child care service takes effect.
194B(5)
For the purposes of subsections (1) and (2), the day on which the approval takes effect must not be earlier than the day the application was made, unless the Secretary considers that, due to special circumstances, it is appropriate for the approval to take effect on an earlier day.
History
S 194B(5) amended by No 26 of 2021, s 3 and Sch 1 item 52, by inserting ", unless the Secretary considers that, due to special circumstances, it is appropriate for the approval to take effect on an earlier day", effective 27 March 2021. For application provisions, see note under s 205C.
S 194B(5) substituted by No 125 of 2019, s 3 and Sch 2 item 13, effective 13 December 2019. S 194B(5) formerly read:
194B(5)
For the purposes of subsections (1) and (2), the day on which the approval takes effect:
(a)
must be:
(i)
a Monday; or
(ii)
if the Secretary considers it to be more appropriate - another day; and
(b)
must not be earlier than the day the application was made.
Refusal
194B(6)
The Secretary must refuse to approve a provider for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).
194B(7)
The Secretary must refuse to approve a provider in respect of a child care service if the Secretary is not satisfied of one or more of the matters referred to in subsection (3) in respect of the service.
194B(8)
If the Secretary refuses to approve a provider for the purposes of the family assistance law or refuses to approve the provider in respect of a child care service, the Secretary must give the applicant notice of:
(a)
the refusal; and
(b)
the reasons for the refusal.
History
S 194B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 194C
194C
Provider eligibility rules
A provider satisfies the provider eligibility rules if:
(a)
for each child care service in respect of which the provider is seeking approval - the provider holds any approvals or licences required to operate a child care service under the law of the State or Territory in which the service is situated; and
(b)
the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and
(c)
any person with management or control of the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and
(d)
any person who will be a person with management or control of the provider on the day the provider's approval takes effect, or the day the provider's approval in respect of a child care service takes effect, is a fit and proper person to be involved in the administration of CCS and ACCS; and
(da)
the provider has arrangements in place to ensure that the provider and the following persons comply with the family assistance law:
(i)
the persons mentioned in paragraphs (c) and (d);
(ii)
each person that the provider, or a person mentioned in subparagraph (i), is responsible for managing; and
(e)
for a large child care provider - the provider is financially viable and is likely to remain so; and
(f)
the provider satisfies any other criteria prescribed by the Minister's rules.
Note:
See section 194F for the definition of
person with management or control
.
History
S 194C amended by No 66 of 2022, s 3 and Sch 2 item 5, by substituting "large child care provider" for "large centre-based day care provider" in para (e), effective 1 July 2023.
S 194C amended by No 66 of 2022, s 3 and Sch 4 item 1, by inserting para (da), effective 30 November 2022. No 66 of 2022, s 3 and Sch 4 item 4 contains the following application provision:
4 Application of amendments
Application for approval of a provider
(1)
The amendments of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Part apply in relation to an application for approval of a provider under Division 1 of Part 8 of that Act if the application:
(a)is made on or after the commencement of this item; or
(b)
was made before the commencement of this item but had not been determined before that commencement.
Application for variation of a provider's approval to add a service
(2)
The amendments of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Part apply in relation to an application by an approved provider under subsection 196A(1) of that Act for a variation of the provider's approval to add a child care service to the approval if the application:
(a)
is made on or after the commencement of this item; or
(b)
was made before the commencement of this item but had not been determined before that commencement.
Continued satisfaction of eligibility rules
(3)
For the purposes of applying subsection 195A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after the commencement of this item in relation to an approved provider that was approved under Division 1 of Part 8 of that Act before that commencement, or an approved child care service of the approved provider in respect of which the provider was approved under that Division before that commencement:
(a)
the reference in paragraph 195A(1)(a) of that Act to the provider eligibility rules in section 194C of that Act is a reference to the rules in that section as amended by this Part; and
(b)
the reference in paragraph 195A(1)(b) of that Act to the service eligibility rules in section 194D of that Act is a reference to the rules in that section as amended by this Part.
(4)
Subitem (3) is enacted for the avoidance of doubt and is not intended to limit the operation of subsection 195A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 apart from that subitem.
S 194C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 194D
194D
Service eligibility rules
A child care service satisfies the service eligibility rules if:
(a)
the service is of a type referred to in subclause 2(3) of Schedule 2 to the Family Assistance Act but is not any of the following:
(i)
informal care provided through personal arrangements;
(ii)
a service primarily conducted to provide instruction in an activity (such as sport or music);
(iii)
a service primarily conducted to provide a disability or early intervention service;
(iv)
a service where a parent primarily provides care or is readily available and retains responsibility for the child while the service is provided (such as a play group);
(v)
a service primarily providing short-term irregular care at premises where the parent is a visitor or guest and the parent is readily available (such as a service provided by a gym);
(vi)
a service that primarily provides an early educational program to children in the year that is 2 years before grade 1 of school (such as a preschool or kindergarten); and
(b)
the provider of the service holds any approvals or licences required to operate the service under the law of the State or Territory in which the service is situated; and
(c)
each person who is responsible for the day-to-day operation of the service (whether or not the person is employed by the provider of the service) is a fit and proper person to be involved in the administration of CCS and ACCS; and
(d)
each person who will be responsible for the day-to-day operation of the service (whether or not the person is employed by the provider of the service) on the day that the provider's approval in respect of the service takes effect is a fit and proper person to be involved in the administration of CCS and ACCS; and
(da)
the provider of the service has arrangements in place to ensure that the following persons comply with the family assistance law:
(i)
the persons mentioned in paragraphs (c) and (d);
(ii)
each person that a person mentioned in subparagraph (i) is responsible for managing; and
(e)
in the case where the service is covered by allocation rules - if the provider of the service were to be approved, child care places would be allocated to the service under section 198B; and
(f)
the Secretary is satisfied that it is appropriate for the provider to be approved in respect of the service having regard to the following:
(i)
if the provider is already an approved provider - any conditions imposed on the provider's approval;
(ii)
any non-compliance by the provider with a law of the Commonwealth or a State or Territory;
(iii)
the provider's record of administering payments under the family assistance law;
(iv)
the provider's record of administering of Commonwealth, State or Territory funds;
(v)
the capacity for staff working at the service to use the electronic system for managing child care payments under the family assistance law;
(vi)
any other matter prescribed by the Minister's rules;
(vii)
any other matter the Secretary considers relevant; and
(g)
the service satisfies any other criteria prescribed by the Minister's rules.
History
S 194D amended by No 66 of 2022, s 3 and Sch 4 item 2, by inserting para (da), effective 30 November 2022. For application provision, see note under s 194C.
S 194D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 194E
Fit and proper person considerations
194E(1)
The Secretary must have regard to the following matters in determining whether a person is a fit and proper person for the purpose of paragraph 194C(b), (c) or (d) or 194D(c) or (d):
(a)
any non-compliance by a relevant person with a law of the Commonwealth or a State or Territory;
(b)
any proceedings currently before a court or tribunal that involve a relevant person;
(c)
any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person;
(d)
subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence;
(e)
any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory;
(f)
any act of a relevant person involving fraud or dishonesty;
(g)
(Repealed by No 66 of 2022)
(h)
the record of administering of Commonwealth, State or Territory funds of a relevant person;
(i)
any debts to the Commonwealth incurred by a relevant person (whether or not the debt has been discharged);
(j)
the record of financial management of a relevant person, including any instances of bankruptcy, insolvency or external administration involving the person;
(k)
any other matter prescribed by the Minister's rules;
(l)
any other matter the Secretary considers relevant.
History
S 194E(1) amended by No 66 of 2022, s 3 and Sch 4 item 3, by repealing para (g), effective 30 November 2022. For application provision, see note under s 194C. Para (g) formerly read:
(g)
the arrangements the person has:
(i)
to ensure the person complies with the family assistance law; and
(ii)
to ensure anyone the person is responsible for managing complies with the family assistance law;
194E(2)
For the purposes subsection (1), a
relevant person
is:
(a)
the person; and
(b)
another person or body in respect of which the person is or has ever been a person with management or control.
Note:
See section 194F for the definition of
person with management or control
.
History
S 194E inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 194F
Meaning of
person with management or control
194F(1)
A person is a
person with management or control
of a body, if the person is any of the following:
(a)
a member of the group of persons responsible for the executive decisions of the body;
(b)
a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the body;
(c)
a person who is responsible for the day-to-day operation of the body (whether or not the person is employed by the body);
(d)
a person who is responsible for the day-to-day operation of a child care service in respect of which the body is approved or is seeking to be approved (whether or not the person is employed by the body).
194F(2)
Without limiting paragraph (1)(a), the following persons are taken to be members of the group referred to in that paragraph:
(a)
if the body is a body corporate - an officer of the body corporate (within the meaning of the Corporations Act 2001);
(b)
if the body is a partnership - a partner;
(c)
in any other case - a member of the body's governing body.
History
S 194F inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 194G
Meaning of
approved child care service
194G(1)
A child care service is an
approved child care service
if an approved provider is approved in respect of the service under this Division and that approval is in effect.
194G(2)
If the approved provider's approval under this Division is suspended or suspended in respect of the service, the service is not an
approved child care service
at any time when the suspension is in effect.
History
S 194G inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 194H
194H
Obligations and permissions of an approved child care service are those of the approved provider
For the purposes of the family assistance law:
(a)
an obligation imposed by that law on an approved child care service is taken to be imposed on the approved provider of the service; and
(b)
a permission conferred by that law on an approved child care service is taken to be conferred on the approved provider of the service.
History
S 194H inserted by No 22 of 2017,s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 2 - Conditions for continued approval
History
Div 2 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8 heading.
SECTION 195A
Conditions for continued approval - compliance with rules and law
Continued satisfaction of eligibility rules
195A(1)
It is a condition for continued approval of an approved provider that:
(a)
the provider continues to satisfy the provider eligibility rules in section 194C; and
(b)
each approved child care service of the provider continues to satisfy the service eligibility rules in section 194D.
Compliance with family assistance law
195A(2)
It is a condition for continued approval of an approved provider that the provider not contravene the family assistance law (whether or not the contravention constitutes an offence or is a contravention of a civil penalty provision).
Note:
Enforcement under this Part of this and other conditions is not limited or affected by other compliance measures in relation to these provisions (for example under the Regulatory Powers Act).
195A(3)
It is a condition for continued approval of an approved provider that the provider cooperate with a person exercising powers under:
(a)
section 67FH (power to require information about care provided); and
(b)
section 154 (power to obtain information generally); and
(c)
the Regulatory Powers Act in respect of a provision mentioned in subsection 219UA(1), or information mentioned in subsection 219UA(2), of this Act.
History
S 195A(3) amended by No 125 of 2019, s 3 and Sch 1 item 65, by substituting "(power to require information about care provided)" for "(power to require information about children enrolled in child care)" in para (a), effective 16 December 2019.
Compliance with Commonwealth, State and Territory laws
195A(4)
It is a condition for continued approval of an approved provider that:
(a)
the operation of each approved child care service of the provider; and
(b)
the provision of care by each service;
comply with all requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the service is situated.
History
S 195A substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 195A formerly read:
SECTION 195A Obligations and permissions of an approved child care service are those of the operator
195A
For the purposes of the family assistance law:
(a)
when an obligation is imposed by that law or an approved child care service it is taken to be imposed on the person operating the service; and
(b)
when a permission is conferred by that law on an approved child care service it is taken to be conferred on the person operating the service.
S 195A amended by No 79 of 2011, s 3 and Sch 3 items 4 and 5, by omitting ", and an instrument under that law" after "family assistance law", and "or instrument" after "by that law" from paras (a) and (b), effective 22 August 2011.
S 195A inserted by No 50 of 2009, s 3 and Sch 5 item 9, effective 24 June 2009. No 50 of 2009, s 3 and Sch 5 item 10 contains the following application provision:
Application
(1)
Section 195A (as inserted) applies in relation to obligations imposed, and permissions conferred, before, at or after 24 June 2009.
(2)
For the purposes of section 195A (as inserted), Part 2 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 is taken to form part of the family assistance law.
SECTION 195B
195B
Conditions for continued approval - child care places limit not to be exceeded
It is a condition for continued approval of an approved provider that, if an approved child care service of the provider is covered by the allocation rules:
(a)
the service provides child care places; and
(b)
the service provides no more child care places than the number allocated to the service.
History
S 195B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 195C
Conditions for continued approval - operating period for each approved child care service
195C(1)
It is a condition for continued approval of an approved provider that each child care service of the provider operates for the period determined in accordance with this subsection (the
minimum period
).
195C(2)
Subject to subsections (3) and (4), the minimum period is:
(a)
48 weeks per year; or
(b)
if the service is an outside school hours care service - 7 weeks per year.
195C(3)
If the Minister's rules prescribe an alternative period for a service and subsection (4) does not apply, then the minimum period for the service is the period prescribed by the Minister's rules.
195C(4)
If the Secretary is satisfied that due to special circumstances affecting a service it is appropriate for the service to operate for a shorter period, the minimum period for the service is the number of weeks per year (which may be nil) that the Secretary determines, in writing, to be appropriate.
History
S 195C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 195D
Conditions for continued approval - working with children check
195D(1)
It is a condition for continued approval of an approved provider that, for each individual required under a law of a State or Territory to hold a working with children check in relation to care provided by a child care service of the provider, the provider must ensure that the individual has a current working with children check.
195D(2)
For the purposes of subsection (1), a working with children check is a check that permits the individual to work with children under a law of the State or Territory in which the service is situated.
History
S 195D substituted by No 125 of 2019, s 3 and Sch 2 item 14, effective 13 December 2019. S 195D formerly read:
SECTION 195D Conditions for continued approval - working with children card
195D(1)
It is a condition for continued approval of an approved provider that, for each individual required to hold a working with children card in relation to care provided by a child care service of the provider, the provider give the Secretary details of the card issued to the individual.
195D(2)
For the purposes of subsection (1), a working with children card is a card that permits the individual to work with children under the law of the State or Territory in which the service is situated.
S 195D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 195E
195E
Condition for continued approval - compliance with conditions imposed by Minister
It is a condition for continued approval of an approved provider that the provider complies with any conditions prescribed by the Minister's rules in respect of the provider or an approved child care service of the provider.
History
S 195E inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 195F
Condition for continued approval - compliance with conditions imposed by Secretary
195F(1)
It is a condition for continued approval of an approved provider that the provider complies with any conditions imposed on the provider under subsection (2).
195F(2)
The Secretary may impose conditions in respect of:
(a)
an approved provider; or
(b)
one or more approved child care services of a provider.
195F(3)
If the Secretary imposes a condition, the Secretary must give notice of the condition to the approved provider. The notice must specify the day the condition takes effect.
195F(4)
A notice given under subsection (3) is not a legislative instrument.
History
S 195F inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 195G
195G
Reassessment of continued approval
The Secretary may at any time assess whether a provider is complying with the conditions for continued approval of the provider.
History
S 195G inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 195H
Consequences of breach of conditions for continued approval
Sanctions
195H(1)
If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may do one or more of the following:
(a)
suspend the provider's approval;
(b)
cancel the provider's approval;
(c)
suspend the provider's approval in respect of one or more child care services;
(d)
vary the provider's approval so that the provider is not approved in respect of one or more child care services;
(e)
reduce the number of any child care places allocated to the service under section 198B;
(f)
suspend, for a maximum of 3 weeks, payments under section 67EB of fee reduction amounts in respect of sessions of care provided by one or more approved child care services of the provider.
Note 1:
The Secretary may also decide to vary or impose additional conditions under subsection 195F(2).
Note 2:
Before doing a thing mentioned in paragraphs (a) to (f), the Secretary must follow the procedure in section 199A.
195H(2)
In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in applying the subsection to approved providers.
Notice of sanction
195H(3)
If the Secretary does any of the things mentioned in subsection (1), the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the thing takes effect (which must be not earlier than the day the notice is given).
Revocation of suspension
195H(4)
If the Secretary suspends the provider's approval or suspends the provider's approval in respect of one or more child care services, the Secretary may at any time revoke the suspension.
195H(5)
If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).
195H(6)
In exercising a power under subsection (4), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in specifying the day of effect of a revocation of a suspension.
Revocation of suspension of payment in respect of fee reduction
195H(7)
If the Secretary suspends payment in respect of fee reduction, the Secretary may at any time revoke the suspension. If the suspension is revoked, all payments under section 67EB that would have been paid but for the suspension must be paid.
195H(8)
If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).
History
S 195H inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 3 - Adding or removing services
History
Div 3 inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 196A
Application to add or remove service
196A(1)
An approved provider may apply for a variation of the provider's approval to add a child care service to, or remove a child care service from, the provider's approval.
196A(2)
The application must:
(a)
be given in a form and manner approved by the Secretary; and
(b)
contain any information prescribed by the Secretary's rules; and
(c)
contain any other information, and be accompanied by the documents, required by the Secretary.
196A(3)
An application is taken not to have been made:
(a)
if the application does not comply with subsection (2); or
(b)
in circumstances prescribed by the Minister's rules.
History
S 196A substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 196A formerly read:
SECTION 196A Conditions for continued approval - financial viability
196A
It is a condition for the continued approval of an approved child care service that the operator of the service, if a large long day care centre operator, be likely to remain financially viable.
S 196A inserted by No 120 of 2011, s 3 and Sch 1 item 14, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 196B
Adding a service on application
Variation
196B(1)
If:
(a)
an approved provider applies under section 196A to add a child care service to the provider's approval; and
(b)
the Secretary is satisfied that the service satisfies the requirements in subsection 194B(3);
the Secretary may vary the provider's approval by adding the service to the approval as a service in respect of which the provider is approved.
Notice of approval
196B(2)
If the Secretary varies the provider's approval, the Secretary must give notice to the provider stating:
(a)
the child care services in respect of which the provider is approved as a result of the variation; and
(b)
the type and address of each service; and
(c)
the day on which the provider's approval in respect of each child care service takes effect.
196B(3)
For the purposes of paragraph (2)(c), the day on which the approval takes effect must not be earlier than the day the application was made.
History
S 196B(3) substituted by No 125 of 2019, s 3 and Sch 2 item 15, effective 13 December 2019. S 196B(3) formerly read:
196B(3)
For the purposes of paragraph (2)(c), the day on which the approval takes effect must be a Monday. The day must not be earlier than the day the application was made.
Refusal
196B(4)
If the Secretary is not satisfied of the matter referred to in paragraph (1)(b), the Secretary must refuse the application.
196B(5)
If the Secretary refuses the application, the Secretary must give the applicant notice of:
(a)
the refusal; and
(b)
the reasons for the refusal.
History
S 196B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 196C
Removing a service on application
Variation
196C(1)
If an approved provider applies under section 196A to remove a child care service from the provider's approval, the Secretary may vary the provider's approval by removing the service from the approval as a service in respect of which the provider is approved.
196C(2)
The Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the variation was made).
Refusal
196C(3)
If the Secretary refuses the application, the Secretary must give the applicant notice of:
(a)
the refusal; and
(b)
the reasons for the refusal.
Secretary to have regard to prescribed matters
196C(4)
In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in deciding whether to grant a request under subsection (1).
History
S 196C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 4 - Suspension, variation and cancellation of approval
History
Div 4 inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197A
Immediate suspension after Secretary's decision
197A(1)
The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if the Secretary reasonably believes that:
(a)
the provider is not complying with subsection 195A(4) (compliance with Commonwealth, State and Territory laws); or
(b)
there is an imminent threat to the health or safety of a child because of the care provided by an approved child care service of the provider; or
(c)
due to urgent circumstances, it is no longer appropriate for one or more approved child care services of the provider to provide child care; or
(d)
due to urgent circumstances, it is no longer appropriate for the provider to administer payments under the family assistance law.
197A(2)
If the Secretary suspends the provider's approval or suspends the provider's approval in respect of one or more services, the Secretary must give the provider notice of:
(a)
the day the suspension takes effect (which must not be earlier than the day the notice is given); and
(b)
the grounds for the suspension.
197A(3)
The Secretary may revoke the suspension.
197A(4)
If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).
History
S 197A inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197AA
Suspension on request
Application
197AA(1)
The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if the provider requests the Secretary in writing to do so.
197AA(2)
The request must:
(a)
be given in a form and manner approved by the Secretary; and
(b)
specify a proposed day for the suspension to take effect (the
start day
); and
(c)
specify a proposed day for the suspension to cease to have effect (the
end day
), which must not be later than 12 months after the start day; and
(d)
contain any other information prescribed by the Secretary's rules.
Suspension
197AA(3)
The Secretary may suspend the approval if the Secretary:
(a)
agrees with the start day and the end day specified in the application; and
(b)
is satisfied that the suspension is reasonable in the circumstances.
197AA(4)
If the Secretary suspends the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify:
(a)
the day the suspension takes effect (which may be earlier than the day the notice is given); and
(b)
the day the suspension ceases to have effect.
Revocation
197AA(5)
The Secretary may revoke the suspension if the Secretary is satisfied that the revocation is reasonable in the circumstances.
197AA(6)
If the Secretary revokes the suspension, the Secretary must give notice to the provider of the day the revocation takes effect (which must not be earlier than the day the notice is given).
History
S 197AA inserted by No 125 of 2019, s 3 and Sch 2 item 17, effective 13 December 2019.
SECTION 197AB
Suspension if approval suspended under Education and Care Services National Law
Suspension of provider approval
197AB(1)
If:
(a)
an approved provider holds a provider approval within the meaning of the Education and Care Services National Law; and
(b)
the provider approval is suspended under the Education and Care Services National Law (the
National Law provider suspension
);
the approval of the approved provider is taken to be suspended under this section for the same period during which the National Law provider suspension is in effect.
197AB(2)
(Repealed by No 26 of 2021)
History
S 197AB(2) repealed by No 26 of 2021, s 3 and Sch 1 item 53, effective 27 March 2021. For application provisions, see note under s 205C. S 197AB(2) formerly read:
197AB(2)
Subsection (1) does not apply if the provider approval is voluntarily suspended under section 37 of the Education and Care Services National Law.
Suspension of service approval
197AB(3)
If:
(a)
an approved provider holds a service approval within the meaning of the Education and Care Services National Law; and
(b)
the service approval is suspended under the Education and Care Services National Law (the
National Law service suspension
);
the approval of the approved provider in respect of the service covered by the service approval is taken to be suspended under this section for the same period during which the National Law service suspension is in effect.
197AB(4)
(Repealed by No 26 of 2021)
History
S 197AB(4) repealed by No 26 of 2021, s 3 and Sch 1 item 53, effective 27 March 2021. S 197AB(4) formerly read:
197AB(4)
Subsection (3) does not apply if the service approval is voluntarily suspended under section 85 of the Education and Care Services National Law.
Secretary must give notice of suspension
197AB(5)
If the approval of an approved provider, or the approval of an approved provider in respect of one or more services, is suspended under this section, the Secretary must give the provider notice of the suspension.
History
S 197AB inserted by No 125 of 2019, s 3 and Sch 2 item 17, effective 13 December 2019.
SECTION 197B
Suspension, cancellation or variation for multiple infringement notices
197B(1)
If an approved provider has been given 10 infringement notices under Part 5 of the Regulatory Powers Act in respect of alleged contraventions of civil penalty provisions of this Act within a period of 12 months, the Secretary may do one or more of the following:
(a)
suspend the approval of the approved provider;
(b)
suspend the approval of the approved provider in respect of one or more services;
(c)
cancel the approval of the approved provider;
(d)
vary the provider's approval so that the provider is not approved in respect of one or more child care services.
Note:
Before doing a thing mentioned in paragraphs (a) to (d), the Secretary must follow the procedurein section 199A.
197B(2)
For the purposes of subsection (1):
(a)
an infringement notice is taken to have been given to an approved provider under Part 5 of the Regulatory Powers Act whether it has been paid or not; and
(b)
an infringement notice is taken not to have been given to an approved provider under Part 5 of the Regulatory Powers Act if the infringement notice is withdrawn in accordance with section 106 of that Act.
Suspension
197B(3)
If the Secretary suspends the provider's approval, or suspends the provider's approval in respect of one or more services, the Secretary must give the provider notice of the day the suspension takes effect (which must not be earlier than the day the notice is given).
197B(4)
The Secretary may revoke the suspension.
197B(5)
If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).
Cancellation
197B(6)
If the Secretary cancels the provider's approval, the Secretary must give the provider notice of the day the cancellation takes effect (which must not be earlier than the day the notice is given).
Variation
197B(7)
If the Secretary varies the provider's approval by removing a child care service from the approval, the Secretary must give the provider notice of the day the variation takes effect (which must not be earlier than the day the notice is given).
History
S 197B substituted by No 125 of 2019, s 3 and Sch 2 item 18, effective 13 December 2019. S 197B formerly read:
SECTION 197B Suspension for multiple infringement notices
197B(1)
The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if:
(a)
the provider has been given 10 infringement notices under Part 5 of the Regulatory Powers Act in respect of contraventions of civil penalty provisions of this Act within a period of 12 months; or
(b)
the provider has been given 5 infringement notices under Part 5 of the Regulatory Powers Act in respect of contraventions of civil penalty provisions of this Act within a period of 12 months and the time for paying the penalty specified in each such notice has ended, without the penalty being paid.
197B(2)
If the Secretary suspends the provider's approval or suspends the provider's approval in respect of one or more services, the Secretary must give the provider notice of:
(a)
the day the suspension takes effect (which must not be earlier than the day the notice is given); and
(b)
the grounds for the suspension.
197B(3)
The Secretary may revoke the suspension.
197B(4)
If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).
S 197B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197C
Cancellation on request
197C(1)
The Secretary may cancel the approval of an approved provider if the provider requests the Secretary in writing to do so.
197C(2)
In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in deciding whether to grant the request under subsection (1).
197C(3)
If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).
History
S 197C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197D
Cancellation if provider should not have been approved
197D(1)
The Secretary must cancel the approval of an approved provider if the Secretary is satisfied that, at the time the provider was approved, the provider did not satisfy the requirements in subsection 194B(1).
197D(2)
If the Secretary cancels the provider's approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).
Note:
Before cancelling the approval the Secretary must follow the procedure in section 199A.
History
S 197D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197E
Variation if provider should not have been approved in respect of a service
197E(1)
The Secretary must vary the approval of an approved provider so that the provider is not approved in respect of a child care service if the Secretary is satisfied that, at the time the provider was approved in respect of the service, the service did not satisfy the requirements in subsection 194B(3).
197E(2)
If the Secretary varies the provider's approval by removing the service from the approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).
Note:
Before varying the approval the Secretary must follow the procedure in section 199A.
History
S 197E inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197F
Cancellation for failure of provider to provide care for 3 continuous months
197F(1)
The Secretary may cancel the approval of an approved provider if:
(a)
all approved child care services of the provider fail to provide child care for a continuous period of 3 months; and
(b)
none of the following apply:
(i)
the provider's approval is suspended under section 197AA for any part of the 3 month period;
(ii)
all approved child care services of the provider are subject to a determination under section 195C that the service need not operate for the period;
(iii)
the Secretary is satisfied that, because of special circumstances affecting the provider, the provider's approval should not be cancelled.
History
S 197F(1) amended by No 125 of 2019, s 3 and Sch 2 item 19, by substituting para (b), effective 13 December 2019. Para (b) formerly read:
(b)
neither of the following apply:
(i)
all approved child care services of the provider are subject to a determination under section 195C that the service need not operate for the period;
(ii)
the Secretary is satisfied that, because of special circumstances affecting the provider, the provider's approval should not be cancelled.
197F(2)
If the Secretary cancels the provider's approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).
197F(3)
Before cancelling the provider's approval, the Secretary must request, in writing, that the provider provide within 14 days evidence that the provider is operating a child care service.
197F(4)
The Secretary must have regard to any response to the request in deciding whether to cancel the approval.
History
S 197F inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197G
Variation for failure of service to provide care for 3 continuous months
197G(1)
The Secretary may vary the approval of an approved provider to remove an approved child care service from the approval if:
(a)
the service fails to provide child care for a continuous period of 3 months; and
(b)
none of the following apply:
(i)
the provider's approval with respect to the service is suspended under section 197AA for any part of the 3 month period;
(ii)
the service is subject to a determination under section 195C that the service need not operate for the period;
(iii)
the Secretary is satisfied that, because of special circumstances affecting the service, the provider's approval should not be so varied.
History
S 197G(1) amended by No 84 of 2020, s 3 and Sch 1 item 7, by substituting para (b)(ii) and (iii), effective 13 December 2019. Para (b)(ii) and (iii) formerly read:
(ii)
all approved child care services of the provider are subject to a determination under section 195C that the service need not operate for the period;
(iii)
the Secretary is satisfied that, because of special circumstances affecting the provider, the provider's approval should not be cancelled.
S 197G(1) amended by No 125 of 2019, s 3 and Sch 2 item 20, by substituting para (b), effective 13 December 2019. Para (b) formerly read:
(b)
neither of the following apply:
(i)
the service is subject to a determination under section 195C that the service need not operate for the period;
(ii)
the Secretary is satisfied that, because of special circumstances affecting the service, the provider's approval should not be so varied.
197G(2)
If the Secretary varies the provider's approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).
197G(3)
Before varying the provider's approval, the Secretary must request, in writing, that the provider provide, within 14 days, evidence that the provider is operating the service.
197G(4)
The Secretary must have regard to any response to the request in deciding whether to vary the approval.
History
S 197G inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197H
Cancellation for ceasing to operate any approved child care service
197H(1)
The Secretary must cancel the approval of an approved provider if the provider ceases to operate all the approved child care services of the provider.
197H(2)
If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).
197H(3)
In this section:
ceases to operate
has the meaning given by the Minister's rules.
History
S 197H(3) inserted by No 125 of 2019, s 3 and Sch 2 item 21, effective 13 December 2019.
History
S 197H inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197J
Variation for ceasing to operate a child care service
197J(1)
The Secretary must vary the approval of an approved provider to remove an approved child care service from the approval if the provider ceases to operate the service.
197J(2)
If the Secretary varies the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the notice is given).
197J(3)
In this section:
ceases to operate
has the meaning given by the Minister's rules.
History
S 197J(3) inserted by No 125 of 2019, s 3 and Sch 2 item 22, effective 13 December 2019.
History
S 197J inserted by No 22 of 2017,s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197K
Cancellation because no longer approved in respect of any child care service
197K(1)
The approval of an approved provider is taken to be cancelled if there are no longer any child care services in respect of which the provider is approved.
197K(2)
If the approval is cancelled under this section, the Secretary must give notice to the provider of the cancellation. The notice must specify the day the cancellation takes effect.
History
S 197K inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 197L
Cancellation or variation if approval cancelled under Education and Care Services National Law
Cancellation of provider approval
197L(1)
If:
(a)
an approved provider holds a provider approval within the meaning of the Education and Care Services National Law; and
(b)
the provider approval is cancelled under the Education and Care Services National Law (the
National Law provider cancellation
);
the approval of the approved provider is taken to be cancelled under this section on the same day as the day on which the National Law provider cancellation takes effect.
Note:
A provider approval may be cancelled on a number of grounds under the Education and Care Services National Law, including if it is surrendered.
197L(2)
If the approval of an approved provider is cancelled under subsection (1), the Secretary must give the provider notice of the cancellation.
Variation of provider approval following cancellation of service approval
197L(3)
If:
(a)
an approved provider holds a service approval within the meaning of the Education and Care Services National Law; and
(b)
the service approval is cancelled under the Education and Care Services National Law (the
National Law service cancellation
);
the approval of the approved provider is taken to be varied under this section to remove the service to which the National Law service cancellation relates from the approval on the same day as the day on which that cancellation takes effect.
Note:
A service approval may be cancelled on a number of grounds under the Education and Care Services National Law, including if it is surrendered.
197L(4)
If the approval of an approved provider in respect of one or more services is varied under subsection (3), the Secretary must give the provider notice of the variation.
History
S 197L inserted by No 125 of 2019, s 3 and Sch 2 item 23, effective 13 December 2019.
Division 5 - Allocation of child care places
History
Div 5 inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 198A
198A
Allocation of child care places to approved child care services
The Minister's rules may prescribe the following (the
allocation rules
):
(a)
procedures relating to the allocation of child care places to approved child care services;
(b)
matters to be taken into account in working out the number (if any) of child care places to be allocated to approved child care services;
(ba)
what constitutes a child care place in respect of a specified class of approved child care services;
(c)
child care services subject to the allocation rules;
(d)
the maximum number of places that can be allocated to approved child care services in a specified class;
(e)
any other matters to be taken into account in making such an allocation;
(f)
procedures relating to the reduction under section 198C of the number of child care places allocated to approved child care services;
(g)
matters to be taken into account in working out the number of child care places by which the number of child care places allocated to approved child care services may be reduced under section 198C;
(h)
any other matters to be taken into account in reducing, or deciding whether to reduce, under section 198C the number of child care places allocated to approved child care services.
History
S 198A amended by No 125 of 2019, s 3 and Sch 1 item 66, by inserting para (ba), effective 16 December 2019.
S 198A inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 198B
Secretary to allocate child care places
Initial allocation of child care places
198B(1)
If an approved child care service is subject to the allocation rules, the Secretary must allocate child care places to the service in accordance with the rules.
Additional allocation of child care places
198B(2)
If an approved child care service has been allocated a number of child care places, the approved provider of the service may apply to the Secretary for additional child care places.
198B(3)
The application must:
(a)
be given in a form and manner approved by the Secretary; and
(b)
contain any information prescribed by the Secretary's rules; and
(c)
contain any other information, and be accompanied by the documents, required by the Secretary.
198B(4)
The Secretary must decide, in accordance with the allocation rules, whether or not to grant the application.
198B(5)
The Secretary must give the applicant notice of the decision under subsection (4).
198B(6)
If the Secretary decides to grant the application, the Secretary must allocate the additional child care places to the service.
History
S 198B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 198C
Reduction of allocation of child care places by unused or unusable places
198C(1)
The Secretary may reduce, in accordance with the allocation rules, the number of child care places allocated to an approved child care service if:
(a)
that number exceeds the number of child care places provided by the service; or
(b)
that number exceeds the number of child care places that the service is, under a law of a State or Territory, licensed to provide.
The reduction must not be greater than the number of excess places.
198C(2)
Before the reduction, the Secretary must (unless the provider has informed the Secretary in writing that the allocated number may be reduced) give a notice to the approved provider of the service that:
(a)
states that the Secretary proposes to make the reduction; and
(b)
states the number of places by which the Secretary proposes to reduce the number of places allocated to the service; and
(c)
invites the provider to make written submissions to the Secretary about the proposed reduction; and
(d)
is not inconsistent with the allocation rules.
198C(3)
If the approved provider of the service has informed the Secretary in writing that the number of child care places allocated to the service may be reduced, the Secretary may give the provider a notice under subsection (2) before making the reduction.
198C(4)
The Secretary must have regard to any submissions made by the approved provider of the service in accordance with an invitation under paragraph (2)(c) in deciding whether to make the reduction.
198C(5)
If the Secretary reduces the number of child care places allocated to an approved child care service, the Secretary must give the approved provider of the service a notice that states:
(a)
the number of places by which the number of places allocated to the service is reduced; and
(b)
the day on which the reduction takes effect, which must not be earlier than the day on which the notice is given; and
(c)
the number of places allocated to the service, taking account of the reduction.
History
S 198C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 6 - Miscellaneous
History
Div 6 inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 199A
Procedure before certain consequences apply
199A(1)
Before doing a thing mentioned in subsection 195H(1) or section 197B, 197D or 197E, the Secretary must give a notice to the provider concerned that:
(a)
states that the Secretary is considering doing the thing; and
(b)
sets out the grounds for doing the thing; and
(c)
summarises the evidence and other material on which those grounds are based; and
(d)
summarises the effect of doing of the thing on eligibility for CCS or ACCS in respect of a session of care provided by an approved child care service of the provider; and
(e)
summarises the provider's rights under this Act to seek a review of the decision to do the thing; and
(f)
invites the provider to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.
History
S 199A(1) amended by No 125 of 2019, s 3 and Sch 2 item 24, by substituting "section 197B, 197D or 197E" for "section 197D or 197E", effective 13 December 2019.
199A(2)
The Secretary must have regard to any submissions made by the provider in accordance with an invitation under paragraph (1)(f) in deciding whether to do the thing.
History
S 199A substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 199A formerly read:
SECTION 199A Reassessment of continued approval
199A
The Secretary may at any time assess whether a child care service should continue to be approved for the purposes of the family assistance law.
S 199A inserted by No 22 of 2017, s 3 and Sch 3 item 5, applicable to a child care service approved before, on or after 5 April 2017.
SECTION 199B
Publicising sanctions or suspensions
199B(1)
If any of the following events occur, the Secretary may publicise the event in any way the Secretary thinks appropriate:
(a)
the Secretary does one or more of the things mentioned in subsection 195H(1);
(b)
the Secretary suspends the approval of an approved provider under subsection 197A(1);
(ba)
the approval of an approved provider, or the approval of an approved provider in respect of one or more services, is suspended by operation of section 197AB;
(bb)
the Secretary suspends, cancels or varies the approval of an approved provider under subsection 197B(1);
(bc)
the approval of an approved provider is cancelled or varied by operation of section 197L;
(c)
a person is ordered by a court to pay a pecuniary penalty in relation to a civil penalty provision of this Act;
(d)
a person is convicted of an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act).
History
S 199B(1) amended by No 125 of 2019, s 3 and Sch 2 item 25, by inserting para (ba) to (bc), effective 13 December 2019.
199B(2)
Without limiting subsection (1), the Secretary may publicise information that includes the following:
(a)
the name of the provider;
(b)
the name and address of an approved child care service or former approved child care service of the provider;
(c)
the grounds for the occurrence of the event specified in subsection (1);
(d)
if the information relates to the doing of one or more of the things mentioned in subsection 195H(1):
(i)
the things done; and
(ii)
the day when each thing done takes effect; and
(iii)
each condition for continued approval of the provider with which the provider has not complied, or is not complying; and
(iv)
the day (if any) when each thing done ceases to have effect;
(e)
if the information relates to a suspension under subsection 197A(1) or section 197AB:
(i)
the day when the suspension takes effect; and
(ii)
the day (if any) when the suspension ceases to have effect;
(f)
if the information relates to a suspension, cancellation or variation under subsection 197B(1):
(i)
the day when the suspension, cancellation or variation takes effect; and
(ii)
the details of the infringement notices which formed the grounds for the suspension, cancellation or variation; and
(iii)
if the information relates to a suspension - the day (if any) when the suspension ceases to have effect;
(g)
if the information relates to a cancellation or variation under section 197L - the day when the cancellation or variation takes effect.
History
S 199B(2) substituted by No 125 of 2019, s 3 and Sch 2 item 26, effective 13 December 2019. S 199B(2) formerly read:
199B(2)
Without limiting subsection (1), the Secretary may publicise information that includes the following:
(a)
the name of the provider;
(b)
the name and address of an approved child care service or former approved child care service of the provider;
(c)
if the information relates to the doing of one or more of the things mentioned in subsection 195H(1):
(i)
the things done; and
(ii)
the day when each thing done takes effect; and
(iii)
each condition for continued approval of the provider with which the provider has not complied, or is not complying; and
(iv)
the day (if any) when each thing done ceases to have effect;
(d)
if the information relates to a suspension under subsection 197A(1):
(i)
the day when the suspension takes effect; and
(ii)
the grounds for the suspension; and
(iii)
the day (if any) when the suspension ceases to have effect.
History
S 199B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 199C
Notice to Secretary of matters affecting approval
199C(1)
An approved provider must give the Secretary written notice of the following matters as soon as practicable after the provider becomes aware of the matter:
(a)
the provider did not satisfy the requirements in subsection 194B(1) at the time the provider became approved;
(b)
a service in respect of which the provider is or was approved did not satisfy the requirements in subsection 194B(3) at the time the provider became approved in respect of the service;
(c)
the provider has not complied, or is not complying, with a condition for continued approval of the provider.
Note:
Section 204F also requires an approved provider to notify the Secretary of certain matters.
Offence
199C(2)
A person commits an offence if the person contravenes subsection (1).
Penalty: 80 penalty units.
Civil penalty
199C(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 60 penalty units.
History
S 199C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 199D
199D
Notice to provider of review rights for decisions under this Part
If the Secretary is required by a provision of this Part to give a provider notice of a decision, the notice must include a statement of the provider's rights under this Act to seek a review of the decision.
History
S 199D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 199E
Notifying individuals about effect on eligibility
199E(1)
If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected if the Secretary were to cancel, suspend or vary the provider's approval because of the Secretary being so satisfied.
199E(2)
A notice under subsection (1) must:
(a)
state that the Secretary is satisfied that the provider has not complied, or is not complying, with a condition for continued approval of the provider; and
(b)
set out the effect on the individual's eligibility if the Secretary were to cancel, suspend or vary the provider's approval.
The notice may set out any other information that the Secretary thinks relevant.
199E(3)
If the Secretary cancels, suspends or varies the provider's approval under this Part, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected because of that action.
199E(4)
A notice under subsection (3) must:
(a)
state that the Secretary has cancelled, suspended or varied the provider's approval; and
(b)
set out the effect of the action on the individual's eligibility.
The notice may set out any other information that the Secretary thinks relevant.
199E(5)
A notice under this section must be given in a form and manner approved by the Secretary.
History
S 199E inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 199F
199F
Certain providers not required to comply with requirements
If the Minister's rules specify the provider of a child care service for the purposes of this section:
(a)
the provider is not required to satisfy paragraph 194C(a) in order to satisfy the provider eligibility rules; and
(b)
the provider is not required to satisfy or comply with any other provision prescribed by the Minister's rules in order to become, or remain, approved for the purposes of the family assistance law.
History
S 199F inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 199G
Minister's rules in relation to backdating of approvals etc.
199G(1)
The Minister's rules may prescribe modifications of this Act or the Family Assistance Act to apply in respect of the following persons and periods:
(a)
approved providers whose approval takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval takes effect, and ending when the Secretary gives the notice;
(b)
approved providers whose approval in respect of a child care service takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval in respect of the service takes effect and ending when the Secretary gives the notice;
(c)
providers whose approval, or approval in respect of a child care service, is suspended, for the period of the suspension;
(d)
approved providers whose suspension is revoked with effect from a day earlier than the day the Secretary gives the provider notice of the revocation, for the period starting when the revocation takes effect and ending when the Secretary gives the notice.
199G(2)
Subsection (1) does not limit subsection 85GB(1) of the Family Assistance Act.
History
S 199G inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
PART 8A - PROVIDER REQUIREMENTS AND OTHER MATTERS
History
Pt 8A substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Pt 8A formerly read:
PART 8A - OBLIGATIONS, AND ADVANCES, RELATING TO APPROVED CHILD CARE SERVICES
Division 1 - Obligations relating to approved child care services
History
Div 1 (heading) substituted by No 50 of 2009, s 3 and Sch 5 item 12, effective 24 June 2009. The heading formerly read:
Division 1 - Obligations of approved child care services
Div 1 inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision A - Obligations relating to enrolment
History
Subdiv A heading inserted by No 25 of 2011, s 3 and Sch 1 item 60, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219A OBLIGATION TO NOTIFY SECRETARY OF ENROLMENT OF A CHILD BY AN INDIVIDUAL
219A(1)
An approved child care service must notify the Secretary of the enrolment of a child by an individual for care by the service.
219A(2)
A child is
enrolled
by an individual for care by an approved child care service if the individual enters into an arrangement with the service for the provision of care to the child by the service.
Note:
If 2 individuals each enter into an arrangement for the provision of care to the child by the service, each enrolment will need to be notified to the Secretary.
219A(3)
If:
(a)
an individual enters into an arrangement for the care of a child by an approved child care service (the
original arrangement
); and
(b)
the enrolment of the child by the individual for care by the service ceases under section 219AD; and
(c)
a session of care is, or sessions of care are, later provided to the child by the service under the original arrangement;the individual is taken to enter into a new arrangement for the provision of care to the child by the service at the time the session, or the first of the sessions, of care is provided.
Note:
As a result, there will be a new enrolment which will need to be notified to the Secretary.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 219A formerly read:
SECTION 219A OBLIGATION TO ACT ON NOTICES RECEIVED OR CERTIFICATES GIVEN, ETC
219A(1)
This section sets out the obligations that apply to an approved child care service in respect of care the service provides to the child of an individual in relation to whom a determination of conditional eligibility under section 50F for child care benefit by fee reduction for care provided by an approved child care service was made.
219A(1A)
If the service becomes aware that the individual is eligible to receive Jobs Education and Training (JET) Child Care fee assistance in relation to a session of care provided by the service to the child, the service must ensure that the fees set for the session do not exceed the amount of the fees that the service would charge an individual who was not eligible for that assistance for the same session for the same child.
Penalty: 60 penalty units.
History
S 219A(1A) inserted by No 118 of 2007, s 3 and Sch 3 item 26, applicable in relation to sessions of care provided after 29 June 2007.
219A(1B)
In subsection (1A):
Jobs Education and Training (JET) Child Care fee assistance
means the payment of that name that is paid by the Commonwealth.
History
S 219A(1B) inserted by No 118 of 2007, s 3 and Sch 3 item 26, applicable in relation to sessions of care provided after 29 June 2007.
219A(2)
If the service:
(a)
receives a notice as set out in column 1 of the table (see all items except items 2 and 7) in respect of the individual and the child; or
(b)
gives a certificate applicable to the individual and the child (see items 2 and 7of the table);
the service must act to do the things set out in column 2 of the table in respect of the notice or certificate. The service must do the thing required as soon as is practicable.
Penalty: 60 penalty units.
Obligation to act on notices received and certificates given
|
|
Column 1 Notice or certificate
|
Column 2 Action required to be done by service
|
1 |
Notice under section 50M that the individual has been determined to be conditionally eligible |
The service must take the following action: |
|
|
(a) |
calculate the rate of fee reductions applicable to the individual and a session of care provided by the service to the child using: |
|
|
|
(i) |
the CCB % and the schooling % applicable to the individual under determinations made under sections 50J and 50K; and |
|
|
|
(ii) |
Schedule 2 to the Family Assistance Act as required by Division 4 of Part 4 of that Act; |
|
|
(b) |
using that rate and the weekly limit of hours applicable to the individual under a determination made under section 50H, calculate the amount of the fee reductions in respect of the individual, the child and the session; |
|
|
(c) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(d) |
charge only the reduced fees for the session; |
|
|
(e) |
reimburse the individual the amount of the fee reductions worked out in respect of the individual and the sessions provided by the service to the child during the period commencing on the day the determination of conditional eligibility comes into force and ending on the day the service starts reducing fees as a result of the notice. |
2 |
Service certifies a rate applicable to the individual and the child under subsection 76(1) of the Family Assistance Act in respect of a session of care provided by the service to the child. The service must also ensure that the fees set for a session for which the service reduces fees under this item do not exceed the amount of the fees that the service would charge an individual who was not eligible for the fee reductions for the same session for the same child. |
The service must take the following action: |
|
|
(a) |
using the rate applicable to the individual, the child and the session, calculate the amount of the fee reductions in respect of the individual, the child and the session; |
|
|
(b) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(c) |
charge only the reduced fees for the session. |
3 |
Notice that the Secretary has determined a rate applicable to the individual and the child under subsection 81(2) or (3) of the Family Assistance Act in respect of a session of care provided by the service to the child. The service must also ensure that the fees set for a session for which the service reduces fees under this item do not exceed the amount of the fees that the service would charge an individual who was not eligible for the fee reductions for the same session for the same child. |
If the service provides a session of care to the child on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the determination takes effect; |
|
|
the service must take the following action in respect of the session: |
|
|
(c) |
using the rate applicable to the individual, the child and the session, calculate the amount of the fee reductions in respect of the individual, the child and the session; |
|
|
(d) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(e) |
charge only the reduced fees for the session. |
3A |
Notice under section 50V that the individual is eligible for the special grandparent rate for the child (given together with a notice under section 50M that the individual has been determined to be conditionally eligible) |
The service must take the following action: |
|
|
(a) |
calculate the amount of the fee reductions in respect of the individual and a session of care provided by the service to the child using: |
|
|
|
(i) |
the rate applicable to the individual, the child and the session; and |
|
|
|
(ii) |
the weekly limit of hours applicable to the individual and the child under a determination made under section 50H; |
|
|
(b) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(c) |
charge only the reduced fees (if any) for the session; |
|
|
(d) |
reimburse the individual the amount of the fee reductions worked out in respect of the individual and the sessions provided by the service to the child during the period: |
|
|
|
(i) |
commencing on the day the determination under subsection 50T(1) comes into force; and |
|
|
|
(ii) |
ending on the day the service starts reducing fees as a result of the notice. |
|
|
The service must also ensure that the fees set for a session for which the service reduces fees under this item do not exceed the amount of the fees that the service would charge an individual who was not eligible for the special grandparent rate for the same session for the same child. |
3B |
Notice under section 50V that the individual is eligible for the special grandparent rate for the child (given otherwise than together with a notice under section 50M that the individual has been determined to be conditionally eligible) |
If the service provides a session of care to the child on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the determination takes effect; |
|
|
the service must take the following action in respect of the session: |
|
|
(c) |
calculate the amount of the fee reductions in respect of the individual, the child and the session using: |
|
|
|
(i) |
the rate applicable to the individual, the child and the session; and |
|
|
|
(ii) |
the weekly limit of hours applicable to the individual and the child under a determination made under section 50H; |
|
|
(d) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(e) |
charge only the reduced fees (if any) for the session. |
|
|
The service must also ensure that the fees set for a session for which the service reduces fees under this item do not exceed the amount of the fees that the service would charge an individual who was not eligible for the special grandparent rate for the same session for the same child. |
4 |
Notice of a variation of the determination of conditional eligibility made under section 58A, 58B, 59, 59A, 59B, 61A, 62 or 65 with the effect that the individual is not conditionally eligible |
The service must cease to reduce fees, for a reason to do with child care benefit, for sessions of care provided by the service on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the variation takes effect. |
5 |
Notice under subsection 50L(8) that the determination of conditional eligibility in respect of the individual and the child has ceased to be in force |
The service must cease to reduce fees, for a reason to do with child care benefit, for sessions of care provided by the service on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the determination has ceased to be in force. |
6 |
Notice of a variation of the determination of the weekly limit of hours applicable to the individual and the child made under section 59, 59F, 62C, 62D, 64A, 64B, 64C, 64D or 65D |
If the service provides a session of care to the child on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the variation takes effect; |
|
|
the service must take the following action in respect of the session: |
|
|
(c) |
apply the limit as varied in calculating the individual's amount of fee reductions for the session; |
|
|
(d) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(e) |
charge only the reduced fees for the session. |
7 |
Service gives a certificate relating to a weekly limit of hours applicable to the individual and the child for sessions of care occurring in a week under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act |
The service must take the following action: |
|
|
(a) |
apply the limit as certified in calculating the amount of fee reductions in respect of the individual, the child and the session; |
|
|
(b) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(c) |
charge only the reduced fees for the session. |
8 |
Notice of a variation of the determination of CCB % applicable to the individual and the child made under section 58, 59D, 59E, 60B, 60C, 60E, 62A, 62D, 65A, 65B, 65BA or 65BB |
If the service provides a session of care provided to the child on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the variation takes effect; |
|
|
the service must take the following action in respect of the session: |
|
|
(c) |
apply the CCB % as varied in calculating the individual's rate of fee reductions for the session; |
|
|
(d) |
using that rate, calculate the amount of the fee reductions in respect of the individual, the child and the sessions; |
|
|
(e) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(f) |
charge only the reduced fees for the session. |
9 |
Notice of a variation of the determination of schooling % applicable to the individual and the child made under section 59C, 61, 62B, 62D or 65C |
If the service provides a session of care to the child on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the variation takes effect; |
|
|
the service must take the following action in respect of the session: |
|
|
(c) |
apply the schooling % as varied in calculating the individual's rate of fee reductions for the session; |
|
|
(d) |
using that rate, calculate the amount of the fee reductions in respect of the individual, the child and the sessions; |
|
|
(e) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(f) |
charge only the reduced fees for the session. |
9A |
Notice of a variation of a determination of whether the individual is eligible for the special grandparent rate for the child made under section 59G, 62CA or 65DA |
If the service provides a session of care to the child on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the variation takes effect; |
|
|
the service must take the following action in respect of the session: |
|
|
(c) |
calculate the individual's rate of fee reductions for the session on the basis of the determination as varied; |
|
|
(d) |
using that rate, calculate the amount of the fee reductions in respect of the individual, the child and the sessions; |
|
|
(e) |
reduce the fees to be paid for the session by the amount of the fee reductions; |
|
|
(f) |
charge only the reduced fees (if any) for the session. |
|
|
If the effect of the variation of the determination is that the individual is eligible for the special grandparent rate for the child, the service has an additional obligation in relation to the level of fees set for a session for which the service reduces fees under this item. That obligation is to ensure that those fees do not exceed the amount of the fees that the service would charge an individual who was not eligible for the special grandparent rate for the same session for the same child. |
10 |
Notice under subsection 106(1) or (2), subsection 109B(2) or under section 141A of a review decision to vary a decision or substitute a new decision in respect of the individual or the service |
If the service provides a session of care to the child on any day: |
|
|
(a) |
for which the service has not already charged the individual as at the day the service receives the notice; and |
|
|
(b) |
which occurs after the day the review decision takes effect; |
|
|
the service must take the following action in respect of the session: |
|
|
(c) |
if the review decision is a determination of no entitlement under section 50G in respect of the individual because the individual is not conditionally eligible in respect of the child - cease to reduce fees for the session; |
|
|
(d) |
if the review decision affects the weekly limit of hours, the CCB %, the schooling % or the number of 24 hour care periods in a 24 hour care limit of hours: |
|
|
|
(i) |
apply the substituted percentage or limit in calculating the individual's or service's rate or amount (as required) for the session; and |
|
|
|
(ii) |
reduce the fees to be paid for the session by the amount; and |
|
|
|
(iii) |
charge only the reduced fees for the session; |
|
|
(e) |
if the review decision is that a rate determined under section 81 of the Family Assistance Act does not apply to a session of care provided by the service to the child after a specified day - cease to apply that rate for the session; |
|
|
(f) |
if the review decision affects eligibility for the special grandparent rate for a child: |
|
|
|
(i) |
calculate the amount of the fee reductions in respect of the individual, the child and the session on the basis of the varied or substituted decision; and |
|
|
|
(ii) |
reduce the fees to be paid for the session by the amount; and |
|
|
|
(iii) |
charge only the reduced fees (if any) for the session. |
|
|
If paragraph (f) applies and the effect of the varied or substituted decision is that the individual is eligible for the special grandparent rate for the child, the service has an additional obligation in relation to the level of fees set for a session for which the service reduces fees under that paragraph. That obligation is to ensure that those fees do not exceed the amount of the fees that the service would charge an individual who was not eligible for the special grandparent rate for the same session for the same child. |
History
S 219A(2) (table) amended by No 118 of 2007, s 3 and Sch 3 item 28, by inserting "The service must also ensure that the fees set for a session for which the service reduces fees under this item do not exceed the amount of the fees that the service would charge an individual who was not eligible for the fee reductions for the same session for the same child." at the end of column 2 in table items 2 and 3, applicable in relation to sessions of care provided after 29 June 2007.
S 219A(2) amended by No 118 of 2007, s 3 and Sch 3 item 27, by substituting "7" for "6" in paras (a) and (b), effective 29 June 2007.
S 219A(2) (table) amended by No 36 of 2006, s 3 and Sch 2 item 19, by substituting ", 65B, 65BA or 65BB" for "or 65B" in column 1 of table item 8, applicable in relation to:
(a) family tax benefit for the 2006-2007 income year and later income years; and
(b) child care benefit for the 2006-2006 income year and later income years.
S 219A(2) (table) amended by No 150 of 2005, s 3 and Sch 2 item 34, by inserting ``59,'' after ``made under section'' in column 1 of table item 6, applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
S 219A(2) (table) amended by No 132 of 2004, s 3 and Sch 4 items 40 to 42, by inserting items 3A and 3B, inserting item 9A and inserting all the words after para (e) in item 10, applicable to sessions of care provided in a week that commences after 1 January 2005.
219A(3)
Subsections (1A) and (2) are offences of strict liability.
History
S 219A(3) amended by No 118 of 2007, s 3 and Sch 3 item 29, by substituting "Subsections (1A) and (2) are offences" for "Subsection (2) is an offence", effective 29 June 2007.
S 219A(3) inserted by No 137 of 2001, s 3 and Sch 1 item 34, effective 1 October 2001.
S 219A inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219AA OBLIGATION TO NOTIFY SECRETARY OF ENROLMENT WHERE APPROVED CHILD CARE SERVICE ELIGIBLE
219AA(1)
If an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for a session or sessions of care provided by the service to a child at risk during a period:
(a)
for which the service has given a certificate under subsection 76(2) of that Act;
(b)
during which a determination by the Secretary under subsection 81(4) of that Act in circumstances mentioned in subparagraph 81(4)(b)(ii) of that Act is in effect;the service must notify the Secretary of the enrolment of the child for care by the service.
219AA(2)
The child is taken to be
enrolled
for care by the service when the session, or the first of the sessions, of care begins.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219AB WHEN AND HOW NOTICE TO BE GIVEN
219AB(1)
A notice under section 219A or 219AA must:
(a)
be given in the form, and in the manner or way, approved by the Secretary; and
(b)
contain any information required by the Secretary.
219AB(2)
Subject to subsections (3) and (4), the notice must be given no later than:
(a)
if the child is enrolled after the day on which the Secretary approves the service - the last day of the week immediately following the first week in which care is provided as a result of the enrolment; or
(b)
if the child is enrolled before that day, but after the day from which the approval is expressed to operate - 7 days after the day on which the approval is given.
History
S 219AB(2) amended by No 34 of 2010, s 3 and Sch 1 item 17, by substituting "subsections (3) and (4)" for "subsection (3)", effective 13 April 2010.
219AB(3)
If:
(a)
a child care service's approval is suspended at the time a child is enrolled by an individual for care by the service; and
(b)
that suspension is later revoked;
the service must give notice of the enrolment under subsection (1) within 7 days after the suspension is revoked.
219AB(4)
If:
(a)
a payment is made to the service under section 219RD in relation to a period (the
initial period
) notified to the service under subsection 219RD(4); and
(b)
the payment is made because of the service's failure to give a report under subsection 219N(1) or (2) for a week (the
applicable week
) in respect of one or more enrolments; and
(c)
for another enrolment referred to in subsection 219A(1) or 219AA(1), the last day of the period referred to in subsection (2) of this section:
(i)
is the last day of the period applicable under subsection 219N(5) in relation to the applicable week; or
(ii)
occurs during the initial period;
the notice of the other enrolment must be given no later than:
(d)
7 days after the end of the initial period; or
(e)
if one or more other periods (that are consecutive with the initial period) are notified to the service under subsection 219RD(4) - 7 days after the end of the last of those periods.
Example:
A payment is made under section 219RD to an approved child care service for a week starting on the 22nd day of a month. This week is the initial period. Assume no other payments under that section are made to the service.
The payment is made because of the service failing to give a report under subsection 219N(1) (in respect of one or more enrolments) for the week starting on the first day of the month. This is the applicable week. Assume the last day for giving the report is the 21st day of the month.
For another enrolment, assume the last day for giving notice of the enrolment under subsection (2) of this section is the 21st day of the month or a day occurring in the initial period.
The notice in relation to the other enrolment must be given by the end of the week commencing on the 29th day of that month.
History
S 219AB(4) inserted by No 34 of 2010, s 3 and Sch 1 item 18, effective 13 April 2010.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219AC FAILURE TO NOTIFY
Civil penalties
219AC(1A)
An approved child care service contravenes this subsection if:
(a)
the service is required to give notice under section 219A; and
(b)
the service does not give the notice in accordance with that section and section 219AB.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219AC(1A) inserted by No 53 of 2008, s 3 and Sch 4 item 9, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219AC(1B)
An approved child care service contravenes this subsection if:
(a)
the service is required to give notice under section 219AA; and
(b)
the service does not give the notice in accordance with that section and section 219AB.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219AC(1B) inserted by No 53 of 2008, s 3 and Sch 4 item 9, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Offences
219AC(1)
An approved child care service commits an offence if:
(a)
the service is required to give notice under section 219A; and
(b)
the service does not give the notice in accordance with that section and section 219AB.
Penalty: 60 penalty units.
219AC(2)
An approved child care service commits an offence if:
(a)
the service is required to give notice under section 219AA; and
(b)
the service does not give the notice in accordance with that section and section 219AB.
Penalty: 60 penalty units.
219AC(3)
Subsections (1) and (2) are offences of strict liability.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219AD WHEN ENROLMENT CEASES
219AD(1)
An enrolment of a child by an individual for care by an approved child care service
ceases
if:
(a)
the arrangement under which care is provided ceases; or
(b)
the service becomes eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for a session of care provided by the service to the child.
219AD(2)
If a child is taken to be enrolled for care by an approved child care service under subsectoin 219AA(2), the enrolment is taken to have
ceased
:
(a)
if a certificate has been given in respect of the child under subsection 76(2) of the Family Assistance Act, either:
(i)
when the period for which a certificate was given ends; or
(ii)
if the Secretary makes a determination in circumstances mentioned in subparagraph 81(4)(b)(i) of that Act at the end of the 13 week period mentioned in that subparagraph - when that determination ceases to have effect; or
(b)
if the Secretary makes a determination in circumstances mentioned in subparagraph 81(4)(b)(ii) of that Act - when that determination ceases to have effect.
219AD(3)
The enrolment of a child for care by an approved child care service (whether by an individual or otherwise) is taken to have
ceased
if no session of care to the child, over a number of weeks specified by the Secretary by legislative instrument, is reported to the Secretary under section 219N.
219AD(4)
Different periods may be specified in relation to different kinds of service or types of care.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219AE SECRETARY TO CONFIRM RECEIPT OF NOTICE
219AE(1)
Subject to subsection (2), the Secretary must provide confirmation to the approved child care service of the receipt of a notice given under section 219A or section 219AA.
219AE(2)
The Secretary need not provide that confirmation if:
(a)
the notice is given under section 219A in relation to the enrolment of a child by an individual; and
(b)
the information contained in the notice is inconsistent with information contained in a claim, or in a document that accompanies a claim, made by an individual in relation to care provided by the service to the child.
219AE(3)
The Secretary must include in the confirmation details of the record maintained by the Secretary in relation to the enrolment.
219AE(4)
The confirmation must be given in the form, and in the manner or way, approved by the Secretary.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219AF OBLIGATION TO UPDATE ENROLMENT INFORMATION
219AF(1)
If:
(a)
an approved child care service gives notice of enrolment in accordance with sections 219A and 219AB, or sections 219AA and 219AB; and
(b)
after the notice is given:
(i)
information provided in the notice becomes incorrect; or
(ii)
information becomes available that, had it been available at the time the notice was given, should have been included in the notice; or
(iii)
information becomes available that, had it been available at the time the notice was given, would have required the notice to have been given in a different form;
the service must notify the Secretary of the correction or available information.
History
S 219AF(1) amended by No 34 of 2010, s 3 and Sch 1 item 19, by omitting ", within 7 days after the information becomes incorrect or becomes available," after "the service must", effective 13 April 2010.
219AF(1A)
Subject to subsection (1B), the notice must be given within 7 days after the information becomes incorrect or becomes available.
History
S 219AF(1A) inserted by No 34 of 2010, s 3 and Sch 1 item 20, effective 13 April 2010.
219AF(1B)
If:
(a)
a payment is made to the service under section 219RD in relation to a period (the
initial period
) notified to the service under subsection 219RD(4); and
(b)
the payment is made because of the service's failure to give a report under subsection 219N(1) or (2) for a week (the
applicable week
); and
(c)
for any enrolment, the last day of the period referred to in subsection (1A) of this section:
(i)
is the last day of the period applicable under subsection 219N(5) in relation to the applicable week; or
(ii)
occurs during the initial period;
the notice must be given no later than:
(d)
7 days after the end of the initial period; or
(e)
if one or more other periods (that are consecutive with the initial period) are notified to the service under subsection 219RD(4) - 7 days after the end of the last of those periods.
History
S 219AF(1B) inserted by No 34 of 2010, s 3 and Sch 1 item 20, effective 13 April 2010.
219AF(2)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219AG FAILURE TO UPDATE ENROLMENT INFORMATION
Civil penalty
219AG(1A)
An approved child care service contravenes this subsection if:
(a)
the service is required to notify the Secretary of a correction or available information under section 219AF; and
(b)
the service does not notify the Secretary in accordance with that section.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219AG(1A) inserted by No 53 of 2008, s 3 and Sch 4 item 10, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Offence
219AG(1)
An approved child care service commits an offence if:
(a)
the service is required to notify the Secretary of a correction or available information under section 219AF; and
(b)
the service does not notify the Secretary in accordance with that section.
Penalty: 60 penalty units.
219AG(2)
Subsection (1) is an offence of strict liability.
History
S 219A, 219AA, 219AB, 219AC, 219AD, 219AE, 219AF and 219AG substituted for s 219A by No 118 of 2007, s 3 and Sch 1 item 82, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Subdivision B - Obligations relating to child care benefit by fee reduction
History
Subdiv B heading inserted by No 25 of 2011, s 3 and Sch 1 item 61, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219B OBLIGATION TO PASS ON FEE REDUCTIONS WHERE INDIVIDUAL CONDITIONALLY ELIGIBLE
219B(1)
This section applies if:
(a)
a determination of conditional eligibility for child care benefit by fee reduction under section 50F is in force in respect of an individual (the
claimant
) and a child for a session of care provided by an approved child care service to the child in a week; and
(b)
the Secretary calculates under section 50Z, or recalculates under section 50ZA, the amount of fee reduction applicable in respect of the session of care; and
(c)
the Secretary has notified the service of the amount in accordance with subsection 50Z(3), or the recalculated amount in accordance with subsection 50ZA(2).
219B(2)
The service must, within 14 days after being notified of the amount as calculated or recalculated, pass the amount on to the claimant, except to the extent that the service is required to remit the amount to the Secretary under section 219QB.
Note 1:
This amount must be passed on, even if the payment of amounts to the service in respect of fee reduction has been suspended under paragraph 200(1)(h).
Note 2:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219B(2) amended by No 79 of 2011, s 3 and Sch 5 item 12, by substituting "The" for "Subject to subsection (3), the", applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011 in respect of weeks beginning before, on or after that commencement.
S 219B(2) amended by No 53 of 2008, s 3 and Sch 4 items 11 and 12, by repealing the penalty and substituting the note, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty and the note formerly read:
Penalty: 60 penalty units.
Note:
This amount must be passed on, even if the payment of amounts to the service in respect of fee reduction has been suspended under paragraph 200(1)(h).
219B(2A)
An approved child care service commits an offence if the service contravenes subsection (2).
Penalty: 60 penalty units.
History
S 219B(2A) inserted by No 53 of 2008, s 3 and Sch 4 item 13, applicable in relation to conduct happening wholly after 26 June 2008, where conduct means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219B(2B)
Subsection (2A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219B(2B) inserted by No 53 of 2008, s 3 and Sch 4 item 13, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219B(3)
(Repealed by No 79 of 2011)
History
S 219B(3) repealed by No 79 of 2011, s 3 and Sch 5 item 13, applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011 in respect of weeks beginning before, on or after that commencement.
S 219B(3) formerly read:
219B(3)
If:
(a)
the Secretary, on recalculating under section 50ZA the amount in which the Secretary considers fee reduction is applicable in respect of the session of care (the
last recalculation
), reduces the amount; and
(b)
the amount is reduced for a reason other than the substitution or withdrawal by the service of a report given under section 219N;the service must pass on to the claimant the amount as calculated, or recalculated, immediately before the last recalculation, rather than the amount last recalculated.
Note:
The fact that the higher rather than the lower amount has been passed on will be taken into account when the determination of entitlement is made under section 51B.
219B(4)
If:
(a)
the service reduces the amount by which it charges the claimant in respect of the session of care in anticipation of the Secretary's calculation of the amount applicable in respect of fee reduction for that session (the
anticipated fee reduction
); and
(b)
the service was an approved child care service at the time the session of care was provided;the service is taken to have passed on to the claimant an amount equal to the anticipated fee reduction.
219B(5)
The amount is taken to have been passed on to the claimant on the day on which the Secretary notified the service of the amount in accordance with subsection 50Z(3) or 50ZA(2).
History
S 219B(5) amended by No 79 of 2011, s 3 and Sch 5 item 14, by inserting "or 50ZA(2)", applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011 in respect of weeks beginning before, on or after that commencement.
219B(6)
(Repealed by No 53 of 2008)
History
S 219B(6) repealed by No 53 of 2008, s 3 and Sch 4 item 14, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219B(6) formerly read"
219B(6)
Subsection (2) is an offence of strict liability.
History
S 219B, 219BA, 219BB, 219BC and 219BD substituted for s 219B by No 118 of 2007, s 3 and Sch 1 item 83, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 219B formerly read:
SECTION 219B Obligation to reduce fees of individuals when approved child care service is eligible for child care benefit
219B(1)
If an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for sessions of care provided by the service to a child at risk, the service must, within the time set out in subsection (3):
(a)
calculate, as set out in subsection (2), the amount of child care benefit in respect of the service, the child and the sessions; and
(b)
reduce the fees to be paid for the sessions by the amount of the child care benefit; and
(c)
charge only the reduced fees for the session; and
Penalty: 60 penalty units.
(d)
ensure that the fees set for a session for which the service is required to reduce fees under this subsection do not exceed the amount of the fees that the service would charge an individual for the same session for the same child if the service was not so eligible.
History
S 219B(1) amended by No 118 of 2007, s 3 and Sch 3 item 30, by inserting para (d), applicable in relation to sessions of care provided after 29 June 2007.
219B(1A)
Subsection (1) is an offence of strict liability.
History
S 219B(1A) inserted by No 137 of 2001, s 3 and Sch 1 item 35, effective 1 October 2001.
219B(2)
In determining the amount under paragraph (1)(a), the service must use:
(a)
the rate as certified under subsection 76(2) of the Family Assistance Act, or as determined under subsection 81(4) of that Act, in respect of the service, the child and the sessions of care; and
(b)
the weekly limit of hours determined to be applicable to the service under section 54C in respect of the session of care.
219B(3)
The service must do the things required by subsection (1):
(a)
if the service is required to use a weekly limit of hours that is 24 because the service has just become eligible in respect of the child under section 47 of the Family Assistance Act - as soon as practicable after becoming so eligible; or
(b)
if the service is required to use a rate or weekly limit of hours determined by the Secretary - as soon as practicable after receiving notice of the rate or limit; or
(c)
if the service is required to use a rate or weekly limit of hours that the service certifies - as soon as practicable after giving the certificate in respect of the rate or limit.
History
S 219B(3) amended by No 150 of 2005, s 3 and Sch 1 item 15, by substituting ``24'' for ``20'' in para (a), applicable to sessions of care provided:
(a) during the first week commencing after 1 July 2006; and
(b) during subsequent weeks.
For transitional provision, see note under s 50H(3).
S 219B inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219BA OBLIGATION TO PASS ON FEE REDUCTIONS WHERE APPROVED CHILD CARE SERVICE ELIGIBLE
219BA(1)
This section applies if:
(a)
an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for a session of care provided by the service to a child at risk; and
(b)
the Secretary calculates under section 50ZB, or recalculates under section 50ZC, the amount of child care benefit by fee reduction applicable in respect of the session of care; and
(c)
the Secretary has notified the service of the amount in accordance with subsection 50ZB(3), or the recalculated amount in accordance with subsection 50ZC(2).
219BA(2)
The service must, within 14 days after being notified of the amount as calculated or recalculated, pass the amount on to itself, except to the extent that the service is required to remit the amount to the Secretary under section 219QB.
History
S 219BA(2) amended by No 79 of 2011, s 3 and Sch 5 item 15, by substituting "The" for "Subject to subsection (3), the", applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011 in respect of weeks beginning before, on or after that commencement.
219BA(3)
(Repealed by No 79 of 2011)
History
S 219BA(3) repealed by No 79 of 2011, s 3 and Sch 5 item 16, applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011 in respect of weeks beginning before, on or after that commencement.
S 219BA(3) formerly read:
219BA(3)
If:
(a)
the Secretary, on recalculating under section 50ZC the amount in which the Secretary considers child care benefit by fee reduction is applicable in respect of the session of care (the
last recalculation
), reduces the amount; and
(b)
the amount is reduced for a reason other than the substitution or withdrawal by the service of a report given under section 219N;the service must pass on to itself the amount as calculated, or recalculated, immediately before the last recalculation, rather than the amount last recalculated.
Note:
The fact that the higher rather than the lower amount has been passed on will be taken into account when the determination of entitlement is made under section 54B.
219BA(4)
If:
(a)
the service reduces the amount it charges in respect of the session of care in anticipation of the Secretary's calculation of the amount applicable in respect of child care benefit by fee reduction for that session (the
anticipated fee reduction
); and
(b)
the service was an approved child care service at the time the session of care was provided;the service is taken to have passed on to itself an amount equal to the anticipated fee reduction.
219BA(5)
The amount is taken to have been passed on on the day on which the Secretary notified the service of the amount in accordance with subsection 50ZB(3) or 50ZC(2).
History
S 219BA(5) amended by No 79 of 2011, s 3 and Sch 5 item 17, by inserting "or 50ZC(2)", applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011 in respect of weeks beginning before, on or after that commencement.
History
S 219B, 219BA, 219BB, 219BC and 219BD substituted for s 219B by No 118 of 2007, s 3 and Sch 1 item 83, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219BB OBLIGATION TO CHARGE NO MORE THAN USUAL FEE - RATE DETERMINED BY CHILD CARE SERVICE OR SECRETARY
219BB(1)
If:
(a)
an approved child care service certifies under subsection 76(1) or (2) of the Family Assistance Act the hourly rate of fee reductions or child care benefit applicable for sessions of care provided by the service to a child during a period; or
(b)
the Secretary determines under subsections 81(2), (3) or (4) of the Family Assistance Act the hourly rate of fee reductions or child care benefit for sessions of care an approved child care service provides to a child during a period;the service must ensure that the fees set for each of those sessions do not exceed the amount of the fees that the service would charge for the same session for the same child if that rate did not apply.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219BB(1) amended by No 53 of 2008, s 3 and Sch 4 items 15 and 16, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219BB(2)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219BB(2) and (3) substituted for s 219BB(2) by No 53 of 2008, s 3 and Sch 4 item 17, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219BB(2) formerly read:
219BB(2)
Subsection (1) is an offence of strict liability.
219BB(3)
Subsection (2) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219BB(2) and (3) substituted for s 219BB(2) by No 53 of 2008, s 3 and Sch 4 item 17, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
History
S 219B, 219BA, 219BB, 219BC and 219BD substituted for s 219B by No 118 of 2007, s 3 and Sch 1 item 83, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219BC OBLIGATION TO CHARGE NO MORE THAN USUAL FEE - SPECIAL GRANDPARENT RATE
219BC(1)
If a determination is in force under subsection 50T(1) with the effect that an individual is eligible for the special grandparent rate for a child in respect of a session of care provided to the child by an approved child care service, the service must ensure that the fees set for the session do not exceed the amount of the fees that the service would charge for the same session for the same child if that rate did not apply.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219BC(1) amended by No 53 of 2008, s 3 and Sch 4 items 18 and 19, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219BC(2)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219BC(2) and (3) substituted for s 219BC(2) by No 53 of 2008, s 3 and Sch 4 item 20, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219BC(2) formerly read:
219BC(2)
Subsection (1) is an offence of strict liability.
219BC(3)
Subsection (2) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219BC(2) and (3) substituted for s 219BC(2) by No 53 of 2008, s 3 and Sch 4 item 20, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
History
S 219B, 219BA, 219BB, 219BC and 219BD substituted for s 219B by No 118 of 2007, s 3 and Sch 1 item 83, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219BD OBLIGATION TO CHARGE NO MORE THAN USUAL FEE - JOBS EDUCATION AND TRAINING (JET) CHILD CARE FEE ASSISTANCE
219BD(1)
If:
(a)
a determination of conditional eligibility for child care benefit by fee reduction under section 50F is in force in respect of an individual and a child for a session of care provided by an approved child care service to the child; and
(b)
the service becomes aware that the individual is eligible to receive Jobs Education and Training (JET) Child Care fee assistance in relation to the session of care;the service must ensure that the fees set for the session do not exceed the amount of the fees that the service would charge an individual who was not eligible for that assistance for the same session for the same child.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219BD(1) amended by No 53 of 2008, s 3 and Sch 4 items 21 and 22, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219BD(1A)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219BD(1A) inserted by No 53 of 2008, s 3 and Sch 4 item 23, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219BD(1B)
Subsection (1A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219BD(1B) inserted by No 53 of 2008, s 3 and Sch 4 item 23, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219BD(2)
In subsection (1):
Jobs Education and Training (JET) Child Care fee assistance
means the payment of that name that is paid by the Commonwealth.
219BD(3)
(Repealed by No 53 of 2008)
History
S 219BD(3) repealed by No 53 of 2008, s 3 and Sch 4 item 24, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219BD(3) formerly read:
219BD(3)
Subsection (1) is an offence of strict liability.
History
S 219B, 219BA, 219BB, 219BC and 219BD substituted for s 219B by No 118 of 2007, s 3 and Sch 1 item 83, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219C
SECTION 219C Obligation to pass on further fee reductions to individuals if notice of service's entitlement shows entitlement is greater than the fee reductions originally passed on
219C
(Repealed by No 118 of 2007)
History
S 219C repealed by No 118 of 2007, s 3 and Sch 1 item 84, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 219C formerly read:
SECTION 219C Obligation to pass on further fee reductions to individuals if notice of service's entitlement shows entitlement is greater than the fee reductions originally passed on
219C(1)
If:
(a)
an approved child care service is eligible under section 47 of the Family Assistance Act for sessions of care provided by the service to a child at risk; and
(b)
the person in whose care the child last was before the first session of care provided by the service is an individual; and
(c)
an amount is paid to the service under section 56B in respect of the child;
the service must, as soon as practicable after receiving the amount, pass the amount on to the individual.
Penalty: 60 penalty units.
219C(2)
Subsection (1) is an offence of strict liability.
History
S 219C(2) inserted by No 137 of 2001, s 3 and Sch 1 item 36, effective 1 October 2001.
S 219C inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219D
SECTION 219D Obligation if the service receives notice that the service's approval has been suspended or cancelled
219D
(Repealed by No 118 of 2007)
History
S 219D repealed by No 118 of 2007, s 3 and Sch 1 item 85, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 219D formerly read:
SECTION 219D Obligation if the service receives notice that the service's approval has been suspended or cancelled
219D(1)
If an approved child care service:
(a)
receives notice under this Act that the service's approval has been suspended; or
(b)
receives notice under subsection 200(2) that the service's approval has been cancelled;the service must cease to reduce fees as provided for in sections 219A and 219B for sessions of care the service provides on or after the day on which the sanction takes effect.
History
S 219D(1) substituted by No 118 of 2007, s 3 and Sch 3 item 31, applicable in relation to notices given on or after 29 June 2007. S 219D(1) formerly read:
Obligation where service receives notice that service's approval is suspended or cancelled
219D(1)
If an approved child care service receives notice under subsection 200(2) that the service's approval has been suspended or cancelled, the service must cease to reduce fees as provided for in sections 219A and 219B for sessions of care the service provides on or after the day the service receives the notice.
Penalty: 60 penalty units.
Obligation where service receives notice that suspension of approval is revoked
219D(2)
If an approved child care service receives notice that the service's suspension has been revoked, the service must reduce the fees of an individual in respect of whom a determination of conditional eligibility is in force, as provided for in sections 219A and 219B, for sessions of care it provides after the day the service receives the notice.
Penalty: 60 penalty units.
History
S 219D(2) amended by No 118 of 2007, s 3 and Sch 3 item 32, by omitting "under subsection 200(3)" after "suspension has been revoked", effective 29 June 2007.
219D(3)
Subsections (1) and (2) are offences of strict liability.
History
S 219D(3) inserted by No 137 of 2001, s 3 and Sch 1 item 37, effective 1 October 2001.
S 219D inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219E OBLIGATION TO PROVIDE STATEMENTS
219E(1)
If:
(a)
a determination is in force under section 50F that an individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and
(b)
a session or sessions of care are provided by an approved child care service to the child during a period (the
statement period
) described in subsection (4); and
(c)
the service is required to pass on an amount under section 219B for the session or sessions;
the service must, before the end of one month starting on the day after the end of the statement period, give to the individual or some other person applicable under rules made under subsection (6) a statement setting out the matters specified in subsection (5) in relation to the session or sessions.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219E(1) amended by No 34 of 2010, s 3 and Sch 2 item 2, by substituting "before the end of one month starting on the day after the end of the statement period" for "within 4 weeks after the end of the statement period for the session or sessions", effective 11 May 2010. No 34 of 2010, s 3 and Sch 2 item 6 contains the following saving provision:
Saving provision
6
Despite the amendments of section 219E of the A New Tax System (Family Assistance) (Administration) Act 1999, that section as in force immediately before 11 May 2010 continues to apply in relation to statement periods starting before 11 May 2010.
219E(2)
An approved child care service commits an offence if:
(a)
a determination is in force under section 50F that an individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and
(b)
a session or sessions of care are provided by the service to the child during a period (the
statement period
) described in subsection (4); and
(c)
the service is required to pass on an amount under section 219B for the session or sessions; and
(d)
the service does not, before the end of one month starting on the day after the end of the statement period, give to the individual or some other person applicable under rules made under subsection (6) a statement setting out the matters specified in subsection (5) in relation to the session or sessions.
Penalty: 60 penalty units.
History
S 219E(2) amended by No 34 of 2010, s 3 and Sch 2 item 3, by substituting "before the end of one month starting on the day after the end of the statement period" for "within 4 weeks after the end of the statement period for the session or sessions" in para (d), effective 11 May 2010. For saving provision, see note under s 219E(1).
219E(3)
Subsection (2) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
219E(4)
The statement periods for the service are as follows:
(a)
the first statement period is the period of 3 months starting on the day (the
initial day
) that is:
(i)
the day Schedule 2 to the Family Assistance Legislation Amendment (Child Care) Act 2010 commences; or
(ii)
if the Secretary approves the service under section 195 of this Act on a day later than the one described in subparagraph (i) - that later day;
or, if before or during that 3-month period the service chooses a shorter period starting on the initial day, the shorter period;
(b)
each of the later statement periods is:
(i)
the period of 3 months starting on the day after the end of the immediately preceding statement period; or
(ii)if before or during that 3-month period the service chooses a shorter period starting on that day - the shorter period.
History
S 219E(4) substituted by No 34 of 2010, s 3 and Sch 2 item 4, effective 11 May 2010. For saving provision, see note under s 219E(1). S 219E(4) formerly read:
219E(4)
The statement periods in relation to the service, the individual and the child are as follows:
(a)
the first statement period is the period of 4 weeks starting at the latest of:
(i)
the service's application day applicable under item 91 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007; and
(ii)
1 January 2009; and
(iii)
the day when the determination under section 50F came into force;
or, if that day is not a Monday, the period of 4 weeks starting on the first Monday after that day; and
(b)
the later statement periods are each subsequent period of 4 weeks during which a session or sessions of care are provided by the service to the child.
Note:
The rules may specify different statement periods for particular approved child care services or classes of approved child care services (see subsection (6)).
219E(5)
The matters required to be set out in a statement for a statement period are:
(a)
the start and end of the statement period; and
(b)
the amount that would have been the fees payable for the session or sessions of care provided by the service to the child during the statement period if no amount had been passed on under section 219B for the session or sessions; and
(c)
the amount of fee reductions required to be passed on under section 219B for the sessions or sessions; and
(d)
any other information the Secretary specifies in the rules (if any) made under subsection (6).
Note:
The amount of fee reductions required to be set out in the statement may be a nil amount (see section 4A).
219E(6)
The Secretary may, by legislative instrument, make rules dealing with any of the following matters:
(a)
how statements should be given;
(b)
to whom the statements should be given;
(c)
for particular approved child care services or classes of approved child care services - different statement periods;
(d)
other information that must be given in the statements.
Correcting or reissuing statements
219E(7)
If:
(a)
an approved child care service has, under subsection (1), given an individual or other person a statement (the
earlier statement
) relating to a session or sessions of care provided by the service to a child in the statement period; and
(b)
under section 50ZA, the service is notified on a day (the
notification day
) of a recalculated rate or amount in respect of any of those sessions;
the service must, before the end of the first statement period starting after the notification day, give the individual or other person either a statement setting out the matters specified in subsection (5) taking account of the recalculation or a statement amending the earlier statement so as to take account of the recalculation.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219E(7) inserted by No 34 of 2010, s 3 and Sch 2 item 5, effective 11 May 2010. For saving provision, see note under s 219E(1).
219E(8)
An approved child care service commits an offence if:
(a)
the service has, under subsection (1), given an individual or other person a statement (the
earlier statement
) relating to a session or sessions of care provided by the service to a child in the statement period; and
(b)
under section 50ZA, the service is notified on a day (the
notification day
) of a recalculated rate or amount in respect of any of those sessions; and
(c)
the service does not, before the end of the first statement period starting after the notification day, give the individual or other person either a statement setting out the matters specified in subsection (5) taking account of the recalculation or a statement amending the earlier statement so as to take account of the recalculation.
Penalty: 60 penalty units.
History
S 219E(8) inserted by No 34 of 2010, s 3 and Sch 2 item 5, effective 11 May 2010. For saving provision, see note under s 219E(1).
219E(9)
Subsection (8) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219E(9) inserted by No 34 of 2010, s 3 and Sch 2 item 5, effective 11 May 2010. For saving provision, see note under s 219E(1).
History
S 219E substituted by No 53 of 2008, s 3 and Sch 5 item 23, effective 1 January 2009. S 219E formerly read:
SECTION 219E Obligation to provide receipts
219E(1)
If an approved child care service charges an individual a fee in respect of a session of care provided to a child under an enrolment by the individual that has been confirmed under section 219AE, the service must, at the time the fee or a part of the fee is paid, issue a receipt as provided for in the rules (if any) made under subsection (2), stating the following in respect of the session of care:
(a)
the fees paid;
(b)
if the service is required to pass on an amount under section 219B or 219BA - that amount;
(c)
any other information the Secretary specifies in the rules (if any) made under subsection (2).
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219E(1) amended by No 53 of 2008, s 3 and Sch 4 items 25 and 26, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
S 219E(1) substituted by No 118 of 2007, s 3 and Sch 1 item 86, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 219E(1) formerly read:
219E(1)
If an approved child care service has reduced the fees to be paid by an individual in respect of a session of care the service provides to a child, as required by sections 219A and 219B, the service must issue a receipt as provided for in the rules (if any) made under subsection (2), at the time the service reduces the fee, stating the following in respect of the session of care:
(a)
the fees paid;
(b)
the amount of the fee reductions made;
(c)
any other information the Secretary specifies in rules (if any) made under subsection (2).
Penalty: 60 penalty units.
219E(1A)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219E(1A) and (1B) substituted for s 219E(1A) by No 53 of 2008, s 3 and Sch 4 item 27, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219E(1A) formerly read:
219E(1A)
Subsection (1) is an offence of strict liability.
S 219E(1A) inserted by No 137 of 2001, s 3 and Sch 1 item 38, effective 1 October 2001.
219E(1B)
Subsection (1A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219E(1A) and (1B) substituted for s 219E(1A) by No 53 of 2008, s 3 and Sch 4 item 27, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Secretary may make rules
219E(2)
The Secretary may, bylegislative instrument, make rules dealing with any of the following matters:
(a)
how receipts should be given;
(b)
to whom receipts should be given;
(c)
other information that must be provided in the receipt or other document.
History
S 219E(2) amended by No 108 of 2006, s 3 and Sch 8 item 72, by inserting ", by legislative instrument," after "Secretary may", effective 27 September 2006.
219E(3)
(Repealed by No 108 of 2006)
History
S 219E(3) repealed by No 108 of 2006, s 3 and Sch 8 item 73, effective 27 September 2006. S 219E(3) formerly read:
Rules disallowable instrument
219E(3)
Rules made under subsection (2) are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
S 219E inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision C - Obligations relating to weekly child care rebate
History
Subdiv C inserted by No 25 of 2011, s 3 and Sch 1 item 62, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219EA Obligation to pass on weekly child care rebate
219EA(1)
This section applies if:
(a)
the Secretary calculates under section 65EAAA, or recalculates under section 65EAAD, the amount of the child care rebate that is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and
(b)
the Secretary has notified the service of the amount in accordance with subsection 65EAAB(2), or the recalculated amount in accordance with subsection 65EAAE(2).
219EA(2)
The service must, within 14 days after being notified of the amount as calculated or recalculated, pass the amount on to the individual, except to the extent that the service is required to remit the amount to the Secretary under section 219QE.
Note 1:
This amount must be passed on, even if the payment of child care rebate has been suspended under paragraph 200(1)(i).
Note 2:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219EA(2) amended by No 25 of 2011, s 3 and Sch 2 item 6, by substituting "The" for "Subject to subsection (5), the", applicable in relation to recalculations done under section 65EAAD of the Family Assistance Administration Act on or after 26 July 2011 in respect of weeks beginning before, on or after 26 July 2011.
219EA(3)
An approved child care service commits an offence if the service contravenes subsection (2).
Penalty: 60 penalty units.
219EA(4)
Subsection (3) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
219EA(5)
(Repealed by No 25 of 2011)
History
S 219EA(5) repealed by No 25 of 2011, s 3 and Sch 2 item 7, applicable in relation to recalculations done under section 65EAAD of the Family Assistance Administration Act on or after 26 July 2011 in respect of weeks beginning before, on or after 26 July 2011.
S 219EA(5) formerly read:
219EA(5)
If:
(a)
the Secretary, on recalculating under section 65EAAD the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week, reduces the amount; and
(b)
the amount is reduced for a reason other than the substitution or withdrawal by the service of a report given under section 219N;
the service must pass on to the individual the amount as calculated, or recalculated, immediately before the last recalculation, rather than the amount last recalculated.
219EA(6)
If:
(a)
the service reduces the amount by which it charges an individual in respect of care in anticipation of the Secretary's calculation of the amount of child care rebate applicable for the service in respect of the individual and a child for a week; and
(b)
the service was an approved child care service at the time the care was provided;
the service is taken to have passed on to the individual an amount equal to the anticipated child care rebate.
219EA(7)
The amount is taken to have been passed on to the individual on the day on which the Secretary notified the service of the amount in accordance with subsection 65EAAB(2) or 65EAAE(2).
History
S 219EA inserted by No 25 of 2011, s 3 and Sch 1 item 62, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Former s 219EA inserted by No 118 of 2007, s 3 and Sch 2 item 6, applicable in relation to obligations to provide information that arise after 29 June 2007 (regardless of whether the information relates to a period starting before or after that date); repealed by No 50 of 2009, Sch 4 item 11, effective 24 December 2009. S 219EA formerly read:
SECTION 219EA Obligation to provide information relating to child care places
219EA(1)
This section applies if, under rules determined under subsection 205(1), an approved child care service is required to provide, by a particular time, information as to:
(a)
the number of child care places provided during a particular period; and
(b)
the number of child care places likely to be available during a particular period.
219EA(2)
The service must provide the information by that time in the form, manner or way specified in the request that resulted in that requirement.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219EA(2) amended by No 53 of 2008, s 3 and Sch 4 item 28, by inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219EA(3)
(Repealed by No 53 of 2008)
History
S 219EA(3) repealed by No 53 of 2008, s 3 and Sch 4 item 29, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219EA(3) formerly read:
219EA(3)
Subsection (2) is a
civil penalty provision
.
Note:
Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
SECTION 219EB Obligation to provide additional material in section 219E statements
219EB
If:
(a)
an approved child care service is required to pass on an amount under section 219EA to an individual in respect of care provided for a child by the service in a week; and
(b)
the care is provided in a statement period for the service described in subsection 219E(4) or set out in rules made under paragraph 219E(6)(c);
the service must set out the additional matters specified in subsection (4) in relation to the care in the statement given to the individual or another person under section 219E for the statement period.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
219EB(2)
An approved child care service commits an offence if:
(a)
the approved child care service is required to pass on an amount under section 219EA to an individual in respect of care provided for a child by the service in a week; and
(b)
the care is provided in a statement period for the service described in subsection 219E(4) or set out in rules made under paragraph 219E(6)(c); and
(c)
the service does not set out the additional matters specified in subsection (4) in relation to the care in the statement given to the individual or another person under section 219E for the statement period.
Penalty: 60 penalty units.
219EB(3)
Subsection (2) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
219EB(4)
The additional matters required to be set out in the statement given under section 219E for the statement period are:
(a)
the amount of the fees for which the individual to whom the amount is passed on would have been liable for the care if any fee reduction under section 219B had been passed on but no amount of child care rebate had been passed on under section 219EA for the care; and
(b)
the amount of child care rebate required to be passed on under section 219EA.
291EB(5)
If:
(a)
an approved child care service has, under subsection (1), included a matter in a statement (the
earlier statement
) given to an individual or other person under section 219E in relation to care provided by the service during a statement period; and
(b)
under subsection 65EAAE(2), the service is notified on a day (the
notification day
) of a recalculated amount in respect of the care;
the service must, before the end of the first statement period starting after the notification day, give the individual or other person either a statement setting out the additional matters specified in subsection (4) taking account of the recalculation or a statement amending the earlier statement so as to take account of the recalculation.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
219EB(6)
An approved child care service commits an offence if:
(a)
an approved child care service has, under subsection (1), included a matter in a statement (the
earlier statement
) given to an individual or other person under section 219E in relation to care provided by the service during a statement period; and
(b)
under subsection 65EAAE(2), the service is notified on a day (the
notification day
) of a recalculated amount in respect of the care; and
(c)
the service does not, before the end of the first statement period starting after the notification day, give the individual or other person either a statement setting out the additional matters specified in subsection (4) taking account of the recalculation or a statement amending the earlier statement so as to take account of the recalculation.
Penalty: 60 penalty units.
219EB(7)
Subsection (6) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219EB inserted by No 25 of 2011, s 3 and Sch 1 item 62, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Subdivision D - Obligations relating to records
History
Subdiv D heading inserted by No 25 of 2011, s 3 and Sch 1 item 62, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219F Obligation to keep records
Records must be kept
219F(1)
An approved child care service must keep records as provided for in rules made under subsection (3) of information and events relating to the following matters:
(a)
an individual's eligibility for payment of child care benefit under this Act;
(b)
the service's eligibility for payment of child care benefit under this Act in respect of a child at risk;
(c)
the service's compliance with the conditions for the continued approval of approved child care services;
(d)
any other matter the Secretary specifies in the record keeping rules made under paragraph (3)(b).
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219F(1) amended by No 53 of 2008, s 3 and Sch 4 items 30 and 31, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
,
219F(1A)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219F(1A) inserted by No 53 of 2008, s 3 and Sch 4 item 32, applicable in relation to conduct happening wholly after 26 June 2008, where conduct means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219F(1B)
Subsection (1A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219F(1B) inserted by No 53 of 2008, s 3 and Sch 4 item 32, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Records to be kept for at least 36 months - civil penalty
219F(2)
An approved child care service contravenes this subsection if the service stops keeping the records referred to in subsection (1) before the later of the following times:
(a)
the end of the period of 36 months starting at the end of the year in which the care was provided to which the information or event related;
(b)
a time ordered by a court during proceedings for an offence against this Act, or for the contravention of a civil penalty provision, if an application for the order is made during:
(i)
the period mentioned in paragraph (a); or
(ii)
proceedings relevant to a previous application of this paragraph.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219F(2), (2A) and (2B) substituted for s 219F(2) and (2A) by No 53 of 2008, s 3 and Sch 4 item 33, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. No 53 of 2008, s 3 and Sch 4 item 87 also contains the following further application provision:
Application of amendments about keeping records
(1)
This item applies if:
(a)
immediately before 26 June 2008, subsection 219F(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 required an approved child care service to keep records for a period; and
(b)
but for the repeal of that subsection, that period would have ended at a time (the
retention time
) after that commencement.
Note:
Different records will have different retention times depending on when the period for keeping them started (see subsections 219F(1) and (2) of the A New Tax System (Family Assistance) (Administration) Act 1999 as in force immediately before 26 June 2008.
Application of civil penalty provision
(2)
Subsection 219F(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (as amended) applies in relation to the service and those records as if the period mentioned in paragraph (a) of that subsection were the period:
(a)
starting at 26 June 2008; and
(b)
ending at the retention time.
Application of offence provision
219F(3)
Subsection 219F(2A) of the New Tax System (Family Assistance) (Administration) Act 1999 (as amended) applies in relation to the service and those records as if the period mentioned in paragraph (a) of that subsection were the period:
(a)
starting at 26 June 2008; and
(b)
ending at the retention time.
S 219F(2) formerly read:
Records to be kept for 36 months
219F(2)
The records must be kept by the service for 36 months from the end of the year in which the care was provided to which the information or event related.
Penalty: 60 penalty units.
Records to be kept for at least 36 months - offence
219F(2A)
An approved child care service commits an offence if the service stops keeping the records referred to in subsection (1) before the later of the following times:
(a)
the end of the period of 36 months starting at the end of the year in which the care was provided to which the information or event related;
(b)
a time ordered by a court during proceedings for an offence against this Act, or for the contravention of a civil penalty provision, if an application for the order is made during:
(i)
the period mentioned in paragraph (a); or
(ii)
proceedings relevant to a previous application of this paragraph.
Penalty: 60 penalty units.
History
S 219F(2), (2A) and (2B) substituted for s 219F(2) and (2A) by No 53 of 2008, s 3 and Sch 4 item 33, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219F(2A) formerly read:
219F(2A)
Subsections (1) and (2) are offences of strict liability.
S 219F(2A) inserted by No 137 of 2001, s 3 and Sch 1 item 39, effective 1 October 2001.
219F(2B)
Subsection (2A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the
History
S 219F(2), (2A) and (2B) substituted for s 219F(2) and (2A) by No 53 of 2008, s 3 and Sch 4 item 33, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Secretary must make rules
219F(3)
The Secretary must, by legislative instrument, make rules relating to the keeping of records specifying:
(a)
the kinds of records an approved child care service must keep in relation to a matter listed in subsection (1); and
(b)
other matters (if any) in respect of which an approved child care service must keep records.
History
S 219F(3) amended by No 108 of 2006, s 3 and Sch 8 item 74, by inserting ", by legislative instrument," after "Secretary must", effective 27 September 2006.
219F(4)
(Repealed by No 108 of 2006)
History
S 219F(4) repealed by No 108 of 2006, s 3 and Sch 8 item 75, effective 27 September 2006. S 219F(4) formerly read:
Rules are a disallowable instrument
219F(4)
Rules made under subsection (3) are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Meaning of
offence against this Act
219F(4)
In this section:
offence against this Act
includes an offence against Chapter 7 of the Criminal Code that relates to this Act.
History
S 219F(4) inserted by No 53 of 2008, s 3 and Sch 4 item 34, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
History
S 219F inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219G Former approved child care service to keep records
Obligation to keep records
219G(1)
A person who operates an approved child care service, immediately before the service ceases to be an approved child care service, must keep a record referred to in subsection (2) for the period for which the service would have been required, under section 219F, to keep the record if the service had not ceased to be an approved child care service.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219G(1) amended by No 53 of 2008, s 3 and Sch 4 items 35 and 36, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219G(1A)
A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219G(1A) and (1B) substituted for s 219G(1A) by No 53 of 2008, s 3 and Sch 4 item 37, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219G(1A) formerly read:
21G(1A)
Subsection (1) is an offence of strict liability.
S 219G(1A) inserted by No 137 of 2001, s 3 and Sch 1 item 40, effective 1 October 2001.
219G(1B)
Subsection (1A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219G(1A) and (1B) substituted for s 219G(1A) by No 53 of 2008, s 3 and Sch 4 item 37, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Type of records to be kept
219G(2)
The records the person is required to keep are the records that the service was required to keep under section 219F immediately before the service ceased to be an approved child care service.
Notification of premises at which records are kept
219G(3)
The persons must notify the Secretary in writing, within the period of 14 days beginning on the day after the cessation day, of the premises at which the records are kept on the day after the cessation day.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219G(3) amended by No 53 of 2008, s 3 and Sch 4 items 38 and 39, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
S 219G(3) inserted by No 118 of 2007, s 3 and Sch 3 item 33, applicable in relation to services that cease to be approved child care services after 29 June 2007.
219G(3A)
A person commits an offence if the person contravenes subsection (3).
Penalty: 60 penalty units.
History
S 219G(3A) inserted by No 53 of 2008, s 3 and Sch 4 item 40, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219G(3B)
Subsection (3A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219G(3B) inserted by No 53 of 2008, s 3 and Sch 4 item 40, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to performan act or a state of affairs. For further application provisions see note under subsection 219F(2).
Notification if premises changes
219G(4)
If the premises at which the records are kept changes during the period:
(a)
beginning on the day after the cessation day; and
(b)
ending on the last day the person is required to keep the records under subsection (1);the person must notify the Secretary in writing of the new premises within the period of 14 days beginning on the day the records begin to be kept at the new premises.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219(4) amended by No 53 of 2008, s 3 and Sch 4 items 41 and 42, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
S 219G(4) inserted by No 118 of 2007, s 3 and Sch 3 item 33, applicable in relation to services that cease to be approved child care services after 29 June 2007.
219G(4A)
A person commits an offence if the person contravenes subsection (4).
Penalty: 60 penalty units.
History
S 219G(4A) inserted by No 53 of 2008, s 3 and Sch 4 item 43, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219G(4B)
Subsection (4A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219G(4B) inserted by No 53 of 2008, s 3 and Sch 4 item 43, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219G(5)
In subsections (3) and (4):
cessation day
means the day the service ceased to be an approved child care service.
History
S 219G(5) inserted by No 118 of 2007, s 3 and Sch 3 item 33, applicable in relation to services that cease to be approved child care services after 29 June 2007.
219G(6)
(Repealed by No 53 of 2008)
History
S 219G(6) repealed by No 53 of 2008, s 3 and Sch 4 item 44, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219G(6) formerly read:
219G(6)
Subsections (3) and (4) are offences of strict liability.
S 219G(6) inserted by No 118 of 2007, s 3 and Sch 3 item 33, applicable in relation to services that cease to be approved child care services after 29 June 2007.
History
S 219G inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219GA Secretary may require financial information relating to large long day care centre operators
219GA(1)
For the purposes of determining whether a large long day care centre operator is financially viable, and likely to remain so, the Secretary may, by notice in writing, require a person mentioned in subsection (2) to provide financial information in relation to a financial year if the Secretary has reason to believe that the person is capable of giving the information.
219GA(2)
For the purposes of subsection (1), the Secretary may give a notice to the following persons:
(a)
the operator;
(b)
a person who, at any time during the financial year, owns 15% or more of:
(i)
the operator; or
(ii)
if the operator consists of more than one person - any of those persons;
(c)
a person who, at any time during the financial year, is entitled to receive 15% or more of the dividends paid by:
(i)
the operator; or
(ii)
if the operator consists of more than one person-any of those persons;
(d)
a person who, at any time during the financial year, is owed a debt by the operator;
(e)
a person who:
(i)
acts, or is accustomed to act; or
(ii)
under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with:
(iii)
the operator; or
(iv)
if the operator consists of more than one person - any of those persons;
(f)
a person who directs or instructs:
(i)
the operator; or
(ii)
if the operator consists of more than one person - any of those persons;
to act inaccordance with those directions or instructions;
(g)
a person, if:
(i)
the operator; or
(ii)
if the operator consists of more than one person - any of those persons;
acts, or is accustomed to act, so as to give effect to the first-mentioned person's wishes;
(h)
a person with whom:
(i)
the operator; or
(ii)
if the operator consists of more than one person - any of those persons;
acts, or is accustomed to act, in concert;
(i)
a person, if:
(i)
the operator; or
(ii)
if the operator consists of more than one person - any of those persons;
is intended or expected to act under a contract or an arrangement or understanding (whether formal or informal) so as to give effect to the first-mentioned person's directions, instructions or wishes;
(j)
a person with whom:
(i)
the operator; or
(ii)
if the operator consists of more than one person - any of those persons;
is intended or expected to act in concert under a contract or an arrangement or understanding (whether formal or informal).
219GA(3)
The Secretary's notice must specify:
(a)
the financial information required; and
(b)
the period within which, and the manner in which, the person must comply with the notice.
219GA(4)
The Secretary may only require financial information that relates to any of the 5 financial years immediately preceding the date of the notice.
219GA(5)
The period specified under paragraph (3)(b) must be reasonable in all the circumstances.
219GA(6)
A person who is given a notice under this section must comply with the notice.
Note 1:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
Note 2:
Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
219GA(6A)
However, a person that is registered under the Australian Charities and Not-for-profits Commission Act 2012 need not comply with a notice given to the person under this section to the extent that:
(a)
the notice requires the person to provide particular financial information to the Secretary; and
(b)
the person has provided, or provides, that particular financial information to the Commissioner of the ACNC under that Act before the end of the period specified under paragraph (3)(b).
History
S 219GA(6A) inserted by 169 of 2012, s 3 and Sch 2 item 148, effective 3 December 2012.
219GA(7)
For the purposes of:
(a)
paragraph 6.2(b) of Australian Privacy Principle 6; and
(b)
(Repealed by No 197 of 2012)
(c)
a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;
the disclosure of personal information by a person in response to a notice given under this section is taken to be a disclosure that is authorised by this Act.
History
S 219GA(7) amended by No 197 of 2012, s 3 and Sch 5 items 6 and 7, by substituting para (a) for para (a) and (b), and substituting "that is authorised by this Act" for "that is authorised by law", effective 12 March 2014. Para (a) and (b) formerly read:
(a)
paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988; and
(b)
paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the Privacy Act 1988; and
History
S 219GA inserted by No 120 of 2011, s 3 and Sch 1 item 15, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 219GB Audit of operator of approved child care service
219GB(1)
If, on the basis of information received under section 219GA, the Secretary has concerns about the financial viability of an operator of an approved child care service, the Secretary may engage an appropriately qualified and experienced expert to carry out an independent audit of the operator.
219GB(2)
The expert may be assisted by members of an audit team.
History
S 219GB inserted by No 120 of 2011, s 3 and Sch 1 item 15, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 219H
SECTION 219H Appointment of authorised officers
219H
The Secretary may, in writing, appoint an appropriately qualified officer to be an authorised officer for the purposes of the exercise of the powers referred to in section 219K and/or section 219KA.
History
S 219H amended by No 120 of 2011, s 3 and Sch 1 item 17, by inserting "and/or section 219KA", effective 15 October 2011. For application provision see note under s 3(4B).
S 219H inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219J Identity cards
219J(1)
The Secretary must issue an identity card to an authorised officer.
Form of identity card
219J(2)
The identity card must:
(a)
be in the form approved by the Secretary; and
(b)
contain a recent photograph of the authorised officer.
Offence
219J(3)
A person commits an offence if:
(a)
the person has been issued with an identity card; and
(b)
the person ceases to be an authorised officer; and
(c)
the person does not, as soon as practicable after so ceasing, return the identity card tothe Secretary.
Penalty: 1 penalty unit.
219J(4)
Subsection (3) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
Defence: card lost or destroyed
219J(5)
Subsection (3) does not apply if the identity card was lost or destroyed.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
Authorised officer must carry card
219J(6)
An authorised officer must carry his or her identity card at all times when exercising powers as an authorised officer.
History
S 219J substituted by No 53 of 2008, s 3 and Sch 4 item 45, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219J formerly read:
SECTION 219J Identity cards
219J
The Secretary may issue an identity card to an authorised officer in the form approved by the Secretary. The identity card must contain a recent photograph of the authorised officer.
S 219J inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219K Power to enter premises to inspect records
Access to inspect records
219K(1)
For the purposes of inspecting records referred to in section 219F or 219G, an authorised officer may enter:
(a)
in the case of records referred to in subsection 219F(1) - the premises of the approved child care service in respect of which the records are kept at any time during the service's hours of operation; or
(b)
in the case of records referred to in subsection 219G(2) - the premises last notified under section 219G in respect of the records at any reasonable time of a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
History
S 219K(1) amended by No 118 of 2007, s 3 and Sch 3 item 34, by substituting para (b), applicable in relation to services that cease to be approved child care services after 29 June 2007. Para (b) formerly read:
(b)
in the case of records referred to in subsection 219G(2) - the premises of the former operator of an approved child care service at any time during business hours.
Access to monitor compliance
219K(1A)
An authorised officer may enter the premises of an approved child care service, at any time during the service's hours of operation, for the purposes of monitoring the service's compliance with a condition for the continued approval of the service.
Note:
The authorised officer could also inspect certain records while on the premises (see paragraph (1)(a)).
History
S 219K(1A) inserted by No 53 of 2008, s 3 and Sch 4 item 46, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219K(2)
(Repealed by No 120 of 2011)
History
S 219K(2) repealed by No 120 of 2011, s 3 and Sch 1 item 18, effective 15 October 2011. For application provision see note under s 3(4B). S 219K(3) formerly read:
Access must be by consent
219K(2)
An authorised officer is not authorised to enter premises under subsection (1) or (1A) unless the occupier of the premises, or another person who apparently represents the occupier, has consented to the entry and the officer has shown his or her identity card to that occupier or person.
S 219K(2), (3), (3A), (3B), (3C) and (3D) substituted for s 219K(2) and (3) by No 53 of 2008, s 3 and Sch 4 item 47, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219K(2) formerly read:
219K(2)
An authorised officer is not authorised to enter premises under subsection (1) unless the occupier of the premises, or another person who apparently represents the occupier, has consented to the entry and the officer has shown his or her identity card if required by the occupier.
219K(3)
(Repealed by No 120 of 2011)
History
S 219K(3) repealed by No 120 of 2011, s 3 and Sch 1 item 18, effective 15 October 2011. For application provisions see note under s 3(4B). S 219K(3) formerly read:
219K(3)
An authorised officer must, before obtaining the consent of the occupier or another person in accordance with subsection (2), inform that occupier or person that he or she may refuse consent.
S 219K(2), (3), (3A), (3B), (3C) and (3D) substituted for s 219K(2) and (3) by No 53 of 2008, s 3 and Sch 4 item 47, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219K(3) formerly read:
219K(3)
The authorised officer must leave premises entered under this section if the occupier, or another person who apparently represents the occupier, asks the authorised officer to do so.
219K(3A)
(Repealed by No 120 of 2011)
History
S 219K(3A) repealed by No 120 of 2011, s 3 and Sch 1 item 18, effective 15 October 2011. For application provision see note under s 3(4B). S 219K(3A) formerly read:
219K(3A)
A consent has no effect unless the consent is voluntary.
S 219K(2), (3), (3A), (3B), (3C) and (3D) substituted for s 219K(2) and (3) by No 53 of 2008, s 3 and Sch 4 item 47, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219K(3B)
(Repealed by No 120 of 2011)
History
S 219K(3B) repealed by No 120 of 2011, s 3 and Sch 1 item 18, effective 15 October 2011. For application provision see note under s 3(4B). S 219K(3B) formerly read:
219K(3B)
A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
S 219K(2), (3), (3A), (3B), (3C) and (3D) substituted for s 219K(2) and (3) by No 53 of 2008, s 3 and Sch 4 item 47, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219K(3C)
(Repealed by No 120 of 2011)
History
S 219K(3C) repealed by No 120 of 2011, s 3 and Sch 1 item 18, effective 15 October 2011. For application provisions see note under s 3(4B). S 219K(3C) formerly read:
219K(3C)
A consent that is not limited as mentioned in subsection (3B) has effect until the consent is withdrawn.
S 219K(2), (3), (3A), (3B), (3C) and (3D) substituted for s 219K(2) and (3) by No 53 of 2008, s 3 and Sch 4 item 47, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219K(3D)
(Repealed by No 120 of 2011)
History
S 219K(3D) repealed by No 120 of 2011, s 3 and Sch 1 item 18, effective 15 October 2011. For application provisions see note under s 3(4B). S 219K(3D) formerly read:
219K(3D)
The authorised officer must leave the premises if the consent ceases to have effect.
S 219K(2), (3), (3A), (3B), (3C) and (3D) substituted for s 219K(2) and (3) by No 53 of 2008, s 3 and Sch 4 item 47, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see noteunder subsection 219F(2).
219K(4)
(Repealed by No 120 of 2011)
History
S 219K(4) repealed by No 120 of 2011, s 3 and Sch 1 item 18, effective 15 October 2011. For application provision see note under s 3(4B). S 219K(4) formerly read:
Services must cooperate with authorised officers
219K(4)
Approved child care services have a responsibility under subsection 196(2A) to cooperate with a person exercising powers under this section. An approved child care service that refuses:
(a)
to consent to the entry of a person (after showing the person's identity card in the case of an authorised officer); or
(b)
withdraws consent for the person to enter the premises;
is not complying with the responsibility. Failure to comply with the responsibility can result in a sanction being imposed under section 200.
History
S 219K inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219KA Power to enter premises to carry out an audit
219KA(1)
For the purposes of carrying out an audit of an operator of an approved child care service, a member of an audit team may enter:
(a)
the premises of the approved child care service at any time during the service's hours of operation; or
(b)
any premises of the operator at any reasonable time of a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
219KA(2)
A member of an audit team must be accompanied by an authorised officer.
History
S 219KA inserted by No 120 of 2011, s 3 and Sch 1 item 19, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 219KB Report relating to an audit
219KB(1)
An expert who audits an operator of an approved child care service must prepare and give to the Secretary a report about the affairs of the operator.
219KB(2)
The expert's report must deal with the following:
(a)
whether the operator's financial statements are based on proper accounts and records;
(b)
whether the statements are in agreement with the accounts and records and show fairly the financial transactions and the state of the operator;
(c)
any matter specified by the expert's terms of engagement;
(d)
such other matters arising out of the statements as the expert considers should be reported;
(e)
any recommendationsrelating to maintaining or improving the financial viability of the operator that the expert considers desirable.
History
S 219KB inserted by No 120 of 2011, s 3 and Sch 1 item 19, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 219KC Responsibilities of authorised officers
219KC(1)
Entering premises under subsection 219K(1) or (1A) or section 219KA is not authorised unless:
(a)
the occupier of the premises, or another person who apparently represents the occupier, has consented to the entry; and
(b)
the authorised officer concerned has shown his or her identity card to the occupier or person.
219KC(2)
An authorised officer must, before obtaining the consent of the occupier or another person in accordance with subsection (1), inform that occupier or person that he or she may refuse consent.
219KC(3)
A consent has no effect unless the consent is voluntary.
219KC(4)
A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
219KC(5)
A consent that is not limited as mentioned in subsection (4) has effect until the consent is withdrawn.
219KC(6)
The authorised officer must leave the premises if the consent ceases to have effect.
Cooperation
219KC(7)
Approved child care services have a responsibility under subsection 196(2A) to cooperate with a person exercising powers under section 219K or 219KA. An approved child care service that:
(a)
refuses to consent to the entry of a person (after the person shows his or her identity card in the case of an authorised officer); or
(b)
withdraws consent for the person to enter the premises;
is not complying with the responsibility.
219KC(8)
Operators of approved child care services have a responsibility under subsection 196(2B) to cooperate with a person exercising powers under section 219KA. An operator of an approved child care service that:
(a)
refuses to consent to the entry of a person (after the person shows his or her identity card in the case of an authorised officer); or
(b)
withdraws consent for the person to enter the premises;
is not complying with the responsibility.
219KC(9)
Failure to comply with the responsibility mentioned in subsection (7) or (8) can result in a sanction being imposed under section 200.
History
S 219KC inserted by No 120 of 2011, s 3 and Sch 1 item 19, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 219L Occupier to provide authorised officer with access to records and assistance
Obligation to produce records referred to in subsection 219F(1)
219L(1)
The occupier of premises referred to in paragraph 219K(1)(a), or another person who apparently represents the occupier, must produce to an authorised officer, or any other person assisting the officer, who has entered premises under subsection 219F(1).
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219L(1) amended by No 53 of 2008, s 3 and Sch 4 items 48 and 49, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219L(1A)
A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219L(1A) inserted by No 53 of 2008, s 3 and Sch 4 item 50, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219L(1B)
Subsection (1A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219L(1B) inserted by No 53 of 2008, s 3 and Sch 4 item 50, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Obligation to produce records referred to in subsection 219G(2)
219L(2)
The occupier of premises referred to in paragraph 219K(1)(b), or another person who apparently represents the occupier, must produce to an authorised officer, or any other person assisting the officer, who has entered premises under section 219K, the records referred to in subsection 219G(2).
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219L(2) amended by No 53 of 2008, s 3 and Sch 4 items 51 and 52, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219L(2A)
A person commits an offence if the person contravenes subsection (2).
Penalty: 60 penalty units.
History
S 219L(2A) inserted by No 53 of 2008, s 3 and Sch 4 item 53, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219L(2B)
Subsection (2A) is an offence of strict liability.
History
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219L(2B) inserted by No 53 of 2008, s 3 and Sch 4 item 53, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Obligation to provide reasonable facilities and assistance
219L(3)
The occupier, or another person who apparently represents the occupier, must assist the officer with all reasonable facilities and assistance for the effective exercise of the officer's powers under section 219K.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219L(3) amended by No 53 of 2008, s 3 and Sch 4 items 54 to 56, by substituting "powers under section 219K" for "power to inspect the records", repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 10 penalty units.
219L(3A)
A person commits an offence if the person contravenes subsection (3).
Penalty: 10 penalty units.
History
S 219L(3A) inserted by No 53 of 2008, s 3 and Sch 4 item 57, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219L(3B)
Subsection (3A) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 219L(3B) inserted by No 53 of 2008, s 3 and Sch 4 item 57, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219L(3A)
(Repealed by No 53 of 2008)
History
S 219L(3A) repealed by No 53 of 2008, s 3 and Sch 4 item 58, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219L(3A) formerly read:
219L(3A)
Subsections (1), (2) and (3) are offences of strict liability.
S 219L(3A) inserted by No 137 of 2001, s 3 and Sch 1 item 41, effective 1 October 2001.
219L(4)
Approved child care services have a responsibility under subsection 196(2A) to cooperate with a person exercising powers under subsection (1) or (3). An approved child care service that does not produce records or assist as provided for in those subsections is not complying with the responsibility. Failure to comply with the responsibility can result in a sanction being imposed under section 200.
History
S 219L inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219LA Occupier to provide audit team with access to records and assistance
219LA(1)
This section applies if a member of an audit team enters premises to carry out an audit.
219LA(2)
The occupier of premises referred to in section 219KA, or another person who apparently represents the occupier,must produce to a member of the audit team, or an authorised officer accompanying the member, any documents, records or things required by the expert of the audit team for the purposes of the audit.
Note 1:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
Note 2:
Section 137.2 of the Criminal Code creates an offence for providing false or misleading documents.
219LA(3)
A person commits an offence if the person contravenes subsection (2).
Penalty: 60 penalty units.
219LA(4)
Subsection (3) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
219LA(5)
The occupier of premises referred to in section 219KA, or another person who apparently represents the occupier, must provide a member of the audit team, and an authorised officer accompanying the member, with all reasonable facilities and assistance for the effective exercise of powers under section 219KA.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
219LA(6)
A person commits an offence if the person contravenes subsection (5).
Penalty: 10 penalty units.
219LA(7)
Subsection (6) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
219LA(8)
Approved child care services have a responsibility under subsection 196(2A) to cooperate with a member of an audit team and an authorised officer accompanying a member. An approved child care service that does not produce documents, records or things, or provide facilities and assistance, as provided for in subsections (2) and (5) is not complying with the responsibility.
219LA(9)
Operators of approved child care services have a responsibility under subsection 196(2B) to cooperate with a member of an audit team and an authorised officer accompanying a member. An operator of an approved child care service that does not produce documents, records or things, or provide facilities and assistance, as provided for in subsections (2) and (5) is not complying with the responsibility.
219LA(10)
Failure to comply with the responsibility mentioned in subsection (8) or (9) can result in a sanction being imposed under section 200.
History
S 219LA inserted by No 120 of 2011, s 3 and Sch 1 item 20, effective 15 October 2011. For application provision see note under s 3(4B).
Subdivision E - Obligations to provide information and reports
History
Subdiv E heading substituted and relocated by No 120 of 2011, s 3 and Sch 1 items 16 and 20, effective 15 October 2011. For application provision see note under s 3(4B). The heading formerly read:
Subdivision E - Reporting and other obligations
Subdiv E heading inserted by No 25 of 2011, s 3 and Sch 1 item 63, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219M Obligations if operator decides to stop operating an approved child care service
Obligation to notify Secretary
219M(1)
If a person who operates an approved child care service decides to cease operating the service, the operator must, in the manner provided for in subsection (2), notify the Secretary of that decision:
(a)
unless paragraph (b) applies - at least 42 days before the operator ceases to operate the service; or
(b)
if the operator decides to cease operating the service:
(i)
to avoid being in breach of a law of the Commonwealth, a State or a Territory; or
(ii)
due to circumstances beyond the operator's control;
as soon as possible after that decision.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219M(1) substituted by No 34 of 2010, s 3 and Sch 4 item 1, applicable in relation to decisions made on or after 11 May 2010. S 219M(1) formerly read:
Obligation to notify Secretary
219M(1)
If a person who operates an approved child care service intends to cease operating the service, the operator must, in the manner provided for in subsection (2), notify the Secretary of that intention 30 days or more before the operator ceases to operate the service.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
S 219M(1) amended by No 53 of 2008, s 3 and Sch 4 items 59 and 60, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219M(2)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
History
S 219M(2) substituted by No 50 of 2009, s 3 and Sch 5 item 14, applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009. S 219M(2) formerly read:
219M92)
The notice must be given in the manner set out in a written notice given to the service by the Secretary.
219M(3)
A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219M(3) amended by No 50 of 2009, s 3 and Sch 5 item 15, by omitting "for an offence against subsection (3)" after "Penalty" in the penalty, applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009.
S 219M(3) inserted by No 53 of 2008, s 3 and Sch 4 item 61, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Obligation to give further information on request
219M(4)
An operator of an approved child care service contravenes this subsection if:
(a)
the operator notifies the Secretary under subsection (1) of the operator's decision to cease operating the service; and
(b)
the Secretary requests the operator, in writing, to give the Secretary specified information about the decision; and
(c)
the operator fails to comply with the request in accordance with subsection (6).
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219M(4) amended by No 34 of 2010, s 3 and Sch 4 items 2 and 3, by substituting "decision" for "intention" in para (a) and for "intended cessation of the service" in para (b), applicable in relation to decisions made on or after 11 May 2010.
S 219M(4) inserted by No 50 of 2009, s 3 and Sch 5 item 16, applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009.
219M(5)
A person commits an offence if the person contravenes subsection (4).
Penalty: 60 penalty units.
History
S 219M(5) inserted by No 50 of 2009, s 3 and Sch 5 item 16, applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009.
219M(6)
Information requested under subsection (4) must be given:
(a)
in the form, and in the manner or way, approved by the Secretary; and
(b)
within:
(i)
if paragraph (1)(a) applies - 7 days after the day on which the request was given; or
(ii)
otherwise - the period specified in the request.
History
S 219M(6) amended by No 34 of 2010, s 3 and Sch 4 item 4, by substituting para (b), applicable in relation to decisions made on or after 11 May 2010. Para (b) formerly read:
(b)
within 7 days after the day on which the request was given.
S 219M(6) inserted by No 50 of 2009, s 3 and Sch 5 item 16, applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009.
History
S 219M inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219N Obligation to give reports to Secretary
219N(1)
For each week in which a session of care is provided by an approved child care service to a child in relation to whom an enrolment has been:
(a)
notified to the Secretary in accordance with sections 219A and 219AB; and
(b)
confirmed by the Secretary in accordance with section 219AE;
the service must give the Secretary a report in accordance with this section.
219N(2)
For each week in which a session of care is provided by an approved child care service to a child in relation to whom an enrolment has been:
(a)
notified to the Secretary in accordance with sections 219AA and 219AB;
(b)
confirmed by the Secretary in accordance with section 219AE;
the service must give the Secretary a report in accordance with this section.
219N(3)
The report must be made in the form, and in the manner or way, approved by the Secretary.
219N(4)
The report must include:
(a)
any information required by the Secretary that is relevant to:
(i)
determining whether a fee reduction is applicable in relation to the care and, if so, the rate and amount of that fee reduction; or
(ii)
making a determination of entitlement, or no entitlement, in relation to the care under Division 4 of Part 3; and
(aa)
any information required by the Secretary that is relevant to:
(i)
determining whether an individual is eligible to receive child care rebate; or
(ii)
determining the amount in which child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week, a quarter or an income year; or
(iii)
making a determination of entitlement in relation to the care under Division 4AA of Part 3; or
(iv)
determining any other matter in relation to the payment of child care rebate to an individual; and
(b)
any other information required by the Secretary.
History
S 219N(4) amended by No 25 of 2011, s 3 and Sch 1 item 64, by inserting para (aa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
219N(5)
Subject to subsection (5AA), the report must be given no later than:
(a)
if the week in which the session of care was provided fell wholly before the day on which the enrolment was confirmed - the period of 7 days after the day on which the enrolment was confirmed; and
(b)
otherwise - the end of the second week immediately following the week.
History
S 219N(5) amended by No 34 of 2010, s 3 and Sch 1 item 21, by substituting "Subject to subsection (5AA), the" for "The", effective 13 April 2010.
219N(5AA)
If:
(a)
a payment is made to the service under section 219RD in relation to a period (the
initial period
) notified to the service under subsection 219RD(4); and
(b)
the payment is made because of the service's failure to give a report under subsection (1) or (2) of this section within the period applicable under subsection (5) of this section;
the report must be given no later than:
(c)
7 days after the end of the initial period; or
(d)
if one or more other periods (that are consecutive with the initial period) are notified to the service under subsection 219RD(4) - 7 days after the end of the last of those periods.
History
S 219N(5AA) inserted by No 34 of 2010, s 3 and Sch 1 item 22, effective 13 April 2010.
219N(5A)
An approved child care service contravenes this subsection if:
(a)
the service is required to give a report under subsection (1) or (2); and
(b)
the service does not give the report in accordance with this section.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219N(5A) inserted by No 53 of 2008, s 3 and Sch 4 item 62, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219N(6)
An approved child care service commits an offence if:
(a)
the service is required to give a report under subsection (1) or (2); and
(b)
the service does not give the report in accordance with this section.
Penalty: 60 penalty units.
219N(7)
An approved child care service may:
(a)
substitute the report with an updated report at any time; or
(b)
if the report was given in circumstances where it was not required to be given - withdraw the report.
219N(8)
Subsection (7) does not prevent rules under paragraph 205(1)(b) making provision for, and in relation to, child care services doing either or both of the following:
(a)
substituting reports given by the services under this section;
(b)
withdrawing reports given by the services under this section.
History
S 219N(8) inserted by No 79 of 2011, s 3 and Sch 2 item 4, effective 22 August 2011.
History
S 219N substituted by No 118 of 2007, s 3 and Sch 1 item 87, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 219N formerly read:
SECTION 219N Obligation to give reports to Secretary
Approved child care service must give reports
219N(1)
If, during an approved child care service's reporting period, the service provides care to a child, the service must give the Secretary a report in the manner provided for in subsection (2), containing the information set out in subsection (3), (4) or (5), depending on the circumstances of the child.
Penalty: 60 penalty units.
When and how report must be given
219N(2)
The report under subsection (1) must be given:
(a)
to the Secretary at some time during the next following reporting period whether or not the next following reporting period is the final reporting period (as defined in subsection 219P(4)) in respect of the service; and
(b)
in the form and manner approved by the Secretary.
Information to be provided on child if individual conditionally eligible
219N(3)
If:
(a)
a determination under section 50F is made in respect of a claimant who is an individual that the claimant is conditionally eligible for child care benefit by fee reduction for care provided to a child; and
(b)
the service provides care to the child while the determination is in force;
the report must state the following matters in respect of the child and each week of the reporting period:
(c)
the number of hours of care in the sessions of care in respect of which the service is required, under section 219A, to reduce the claimant's fees, if the service has charged for those hours of care;
(d)
the individual's rate of fee reductions in respect of the sessions of care charged for;
(e)
the amount of the fee reductions made in respect of the sessions of care charged for;
(f)
any other information required by the Secretary in the form.
Information to be provided on child if service eligible in respect of child
219N(4)
If the service is eligible under section 47 of the Family Assistance Act for payment of child care benefit by fee reduction for care the service provides to a child, the report must state the following matters in respect of the child and each week of the reporting period:
(a)
the number of hours of care in the sessions of care in respect of which the service is required, under section 219B, to reduce an individual's fees, if the service has charged for those hours of care;
(b)
the rate of fee reductions in respect of the sessions of care charged for;
(c)
the amount of the fee reductions made in respect of the sessions of care charged for;
(d)
any other information required by the Secretary in the form.
Information to be provided on child if no individual is conditionally eligible and the service is not eligible in respect of the child
219N(5)
If, in respect of a child to whom the service provides care:
(a)
a determination under section 50F that an individual is conditionally eligible for child care benefit by fee reduction for care provided to the child is not in force in respect of any individual and that child when the service provides the care; and
(b)
the service is not eligible under section 47 of the Family Assistance Act for payment of child care benefit by fee reduction for the care;
the report must state the following matters in respect of the child and each week of the reporting period:
(c)
the name of the child;
(d)
the number of hours of care in the sessions of care in respect of which the service would be required, under section 219A in item 1 of the table, to reduce fees if a determination of conditional eligibility under section 50F was in force in respect of an individual and the child when the care was provided, if the service has charged for those hours of care;
(e)
any other information required by the Secretary in the form .
Corrections of reports
219N(6)
A report provided by the service may be corrected by the service at any time.
S 219N inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219NA OBLIGATION TO PROVIDE INFORMATION TO SECRETARY ABOUT NUMBER OF CHILD CARE PLACES
219NA(1)
The Secretary may give an approved child care service a written notice requiring the service to provide information required in order for the Secretary to determine whether to reduce the number of child care places allocated to the service.
219NA(2)
The notice must specify all of these:
(a)
the information required by the Secretary;
(b)
the period, or each of the periods, in relation to which the information is required;
(c)
when the information in relation to the period, or each of the periods, is required.
219NA(3)
The notice may specify either or both of these:
(a)
the form and manner in which the information is to be provided to the Secretary;
(b)
the length of time for which the service must continue to comply with the notice.
219NA(4)
The service must provide the required information to the Secretary, in relation to the period, or each of the periods, specified in the notice, at the time specified in the notice and in the form and manner (if any) specified in the notice.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219NA(4) amended by No 53 of 2008, s 3 and Sch 4 item 63, by inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219NA(5)
The Secretary may give the service a written notice terminating the effect of the notice under subsection (1).
History
S 219NA inserted by No 36 of 2006, s 3 and Sch 5 item 5, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 4 May 2006.
SECTION 219NB OBLIGATION TO PROVIDE FURTHER INFORMATION TO SECRETARY ABOUT ENROLLED CHILDREN
219NB(1)
If the Secretary, by notice under section 57G, requires an approved child care service to provide further information to the Secretary (further information in relation to aspects of the care provided to children enrolled for care by the service), the service must comply with the notice.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
219NB(2)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219NB amended by No 53 of 2008, s 3 and Sch 4 items 64 to 66, by repealing the penalty and inserting the note and s 219NB(2) at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
S 219NB inserted by No 118 of 2007, s 3 and Sch 1 item 88, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219P Obligations of operators of former approved child care services
219P(1)
If the approval of a child care service is suspended or cancelled, the person who operated the child care service immediately before the service's approval was suspended or cancelled must fulfil the obligations under the following provisions in respect of sessions of care that occurred before the approval was suspended or cancelled as if it had not been:
(a)
section 219A;
(b)
section 219AA;
(c)
section 219AF;
(d)
section 219B;
(e)
section 219BA;
(f)
section 219BB;
(g)
section 219BC;
(h)
section 219BD;
(i)
section 219E;
(j)
section 219N;
(k)
section 219QB.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
219P(1A)
If the approval of a child care service is suspended or cancelled, the person who operated the child care service immediately before the service's approval was suspended or cancelled must fulfil the obligations under the following provisions in respect of care that occurred before the approval was suspended or cancelled as if it had not been:
(a)
section 219EA;
(b)
section 219QE.
History
S 219P(1A) inserted by No 25 of 2011, s 3 and Sch 1 item 65, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
219P(2)
A person commits an offence if the person contravenes subsection (1) or (1A).
Penalty: 60 penalty units.
History
S 219P(2) amended by No 25 of 2011, s 3 and Sch 1 item 66, by inserting "or (1A)", applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
History
S 219P amended by No 53 of 2008, s 3 and Sch 4 items 67 to 69, by repealing the penalty and inserting the note and s 219P(2) at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
S 219P substituted by No 118 of 2007, s 3 and Sch 1 item 89, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. S 219P formerly read:
SECTION 219P Former operator of an approved child care service to report
Obligation to report
219P(1)
A person who operated an approved child care service, immediately before the service ceased to be an approved child care service, must report to the Secretary as provided for in this section in respect of the service's final reporting period.
Penalty: 60 penalty units.
Contents of report
219P(2)
The information that the person is required to provide in the report is the information that the service would have been required to provide under section 219N, in respect of the service's final reporting period, if the service had not ceased to be an approved child care service during that period.
When and how report must be given
219P(3)
The report under subsection (1) must be given:
(a)
to the Secretary within 90 days of the service ceasing to be an approved child care service; and
(b)
in the form and manner approved by the Secretary.
219P(4)
In this section:
final reporting period
, in respect of an approved child care service that ceased to be an approved child care service, means the reporting period in which the service ceased to be an approved child care service.
S 219P inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Subdivision F - Miscellaneous
History
Subdiv F inserted by No 120 of 2011, s 3 and Sch 1 item 21, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 219PA
SECTION 219PA Collection, use or disclosure of personal information for financial viability purposes - the
Privacy Act 1988
219PA
The collection, use or disclosure of personal information about an individual is taken to be authorised by this Act for the purposes of the Privacy Act 1988 if the collection, use or disclosure is reasonably necessary for the purposes of determining whether a large long day care centre operator is financially viable, and likely to remain so.
History
S 219PA amended by No 197 of 2012, s 3 and Sch 5 item 8, by substituting "this Act" for "law", effective 12 March 2014.
S 219PA inserted by No 120 of 2011, s 3 and Sch 1 item 21, effective 15 October 2011. For application provision see note under s 3(4B).
Division 2 - Weekly payments in respect of fee reduction to approved child care services
History
Div 2 and Div 3 substituted for Div 2 by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Div 2 formerly read:
Division 2 - Advances to approved child care services
SECTION 219Q Secretary may determine advances to be paid to approved child care services
219Q(1)
The Secretary may, in respect of an approved child care service and a reporting period, make one or more determinations that the service is to be paid a specified amount by way of advance to reimburse the service the amount of the fee reductions made by the service during the reporting period to:
(a)
the children of individuals in respect of whom determinations of conditional eligibility are in force; and
(b)
the children in respect of whom the service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction.
219Q(2)
In respect of each determination, the Secretary may also determine:
(a)
if the amount is to be paid in one payment only or in instalments; and
(b)
if the amount is to be paid in one payment only, the date on which the payment will be made; and
(c)
if the amount is to be paid in instalments, the dates on which each of the instalments will be paid and the amount of each instalment.
History
S 219Q inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219R Payment of advances
219R(1)
If the Secretary has made a determination under section 219Q in respect of an approved child care service, the Secretary must pay to the service:
(a)
if an amount of the difference referred to in subsection 219S(2) is required to be offset against an advance - the amount of the advance determined by the Secretary under section 219Q reduced by the amount referred to in subsection 219S(2); or
(b)
if an amount of the difference referred to in subsection 219S(4) is required to be paid to the service in an advance - the sum of the amount of the advance determined by the Secretary under section 219Q and the amount referred to in subsection 219S(4); or
(c)
if neither paragraph (a) nor (b) applies - the amount of the advance determined by the Secretary under section 219Q.
219R(2)
This section is subject to Part 4 (Overpayments and debt recovery).
History
S 219R inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219S Acquittal of advances paid to approved child care services
219S(1)
When a report for a reporting period is received from an approved child care service under section 219N or 219P, the Secretary must compare the amount of the advance determined by the Secretary under section 219Q in respect of the service and the reporting period with the amount passed on by the service in reduced fees (see sections 219A and 219B) during the reporting period. (The amount of fee reduction is the amount reported by the service to the Secretary under section 219N.)
219S(2)
If the amount of the advance is more than the amount of the reduced fees, the Secretary may determine that the difference in the amounts is to be offset against an advance amount determined by the Secretary under section 219Q in respect of the service.
219S(3)
If the Secretary makes a determination under subsection (2), the difference must be offset as provided for in that subsection.
219S(4)
If the amount of the advance is less than the amount of the reduced fees, the Secretary may determine that the difference in the amounts is to be paid to the service in an advance amount determined in respect of the service under section 219Q.
219S(5)
If the Secretary makes a determination under subsection (4), the difference must be paid as provided for in that subsection.
History
S 219S inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219T Notice of determinations to pay and acquit advances
219T(1)
The Secretary must give notice of a determination under section 219Q to pay an advance to an approved child care service to the service concerned stating:
(a)
the amount of the advance determined under section 219Q in respect of the service; and
(b)
if an amount of a difference referred to in subsection 219S(2) is offset against the advance, the amount of the offset; and
(c)
if an amount of a difference referred to in subsection 219S(4) is paid to the service in addition to this advance, the amount that is in addition; and
(d)
the total amount that is to be paid after the amounts (if any) referred to in subsections 219S(2) and (4) have been taken account of; and
(e)
the period in respect of which the amount is paid; and
(f)
if the amount is to be paid in one payment only or in instalments; and
(g)
if the amount is to be paid in one payment only, the date on which payment will be made; and
(h)
if the amount is to be paid in instalments, the dates on which each of the instalments will be paid and the amount of each instalment.
219T(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
History
S 219T inserted by No 45 of 2000, s3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Div 2 inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219Q Weekly payments in respect of fee reduction to approved child care services
219Q(1)
If the Secretary, under section 50Z or 50ZB, calculates the amount in which the Secretary considers fee reduction is applicable in respect of a session or sessions of care provided by an approved child care service to a child in a week, the Secretary must pay the amount calculated to the credit of a bank account nominated and maintained by the service.
219Q(2)
If the Secretary, on recalculating under section 50ZA or 50ZC the amount in which the Secretary considers fee reduction is applicable in respect of a session or sessions of care provided by an approved child care service to a child in a week, increases the amount, the Secretary must pay to the credit of a bank account nominated and maintained by the service an amount equal to the increase.
219Q(3)
This section is subject to:
(a)
Part 4 (overpayments and debt recovery); and
(b)
section 219QA (set off where amount of applicable fee reduction reduced on recalculation); and
(ba)
section 219QD (set off where amount of applicable child care rebate reduced on recalculation); and
(c)
section 219RC (set off where enrolment ceases, where notification of decision to cease operating service or where enrolment began 4 years ago); and
(ca)
section 219RE (set off where a payment under section 219RD is made); and
(d)
paragraph 200(1)(h) (suspending payment in respect of fee reduction).
History
S 219Q(3) amended by No 22 of 2017, s 3 and Sch 3 item 11, by substituting para (c), effective 1 July 2017. Para (c) formerly read:
(c)
section 219RC (set off where enrolment ceases or where notification of decision to cease operating service); and
S 219Q(3) amended by No 79 of 2011, s 3 and Sch 1 item 22, by inserting "or where notification of decision to cease operating service" in para (c), effective 26 July 2011.
S 219Q(3) amended by No 25 of 2011, s 3 and Sch 1 item 67, by inserting para (ba), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 219Q(3) amended by No 34 of 2010, s 3 and Sch 1 item 23, by inserting para (ca), effective 13 April 2010.
History
S 219Q substituted by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. For former wording of s 219Q, see note under Div 2 heading.
S 219Q inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219QA Payment and set offs where recalculation results in reduced fee reduction
219QA(1)
This section applies if the Secretary, on recalculating under section 50ZA or 50ZC the amount in which the Secretary considers fee reduction is applicable in respect of a session or sessions of care provided by an approved child care service to a child in a week, reduces the amount (including to nil).
History
S 219QA(1) substituted by No 79 of 2011, s 3 and Sch 5 item 18, applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after the commencement of those items in respect of weeks beginning before, on or after 26 July 2011.
S 219QA(1) formerly read:
219QA(1)
This section applies if:
(a)
the Secretary, on recalculating under section 50Z or 50ZC the amount in which the Secretary considers fee reduction is applicable in respect of a session or sessions of care provided by an approved child care service to a child in a week, reduces the amount; and
(b)
the amount is reduced because of the substitution or withdrawal by the service of a report given under section 219N.
219QA(2)
The Secretary must pay the amount (if any) as last recalculated to the credit of a bank account nominated and maintained by the service.
History
S 219QA(2) amended by No 79 of 2011, s 3 and Sch 5 item 19, by inserting "(if any)", applicable in relation to recalculations done under section 50ZA or 50ZC of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after the commencement of those items in respect of weeks beginning before, on or after 26 July 2011.
219QA(3)
The amount as calculated, or recalculated, immediately before the last recalculation must be set off against one or more child care service payments that are to be made to the service (the
first service
) or to another approved child care service operated by the person who operates the first service.
Note:
For child care service payment see subsection 3(1).
History
S 219QA(3) amended by No 79 of 2011, s 3 and Sch 1 item 23, by substituting all words after "against", applicable in relation to payments that are to be made on or after 26 July 2011. The substituted words formerly read:
a later payment to the service of an amount in respect of:
(a)
one or more payments under section 219Q or subsection (2) of this section in respect of fee reduction; or
(aa)
one or more payments under section 219QC or subsection 219QD(2) in respect of child care rebate; or
(b)
one or more enrolment advances under section 219RA.
S 219QA(3) amended by No 25 of 2011, s 3 and Sch 1 items 68 and 69, by substituting "subsection (2) of this section" for "subsection 219QA(2)" in para (a) and inserting para (aa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
History
S 219QA inserted by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219QB Remitting amounts that cannot be passed on
219QB(1)
If:
(a)
either:
(i)
an amount is paid to an approved child care service under section 219Q or subsection 219QA(2) in relation to a session of care provided by an approved child care service to a child in a week; or
(ii)
such an amount would be paid, but for a set off under subsection 82(2) or section 219QA, section 219QD, section 219RC or section 219RE, or the imposition of a sanction under paragraph 200(1)(h); and
(b)
it is not reasonably practicable for the service to pass on to the claimant or the service itself within the time required under subsection 219B(2) or 219BA(2) the fee reduction in respect of which the amount was or would have been paid;
the service must immediately remit to the Secretary an amount equal to the amount that could not be passed on.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219QB(1) amended by No 79 of 2011, s 3 and Sch 5 item 20, by inserting "or subsection 219QA(2)" in para (a)(i), applicable in relation to amounts paid on or after 26 July 2011.
S 219QB(1) amended by No 25 of 2011, s 3 and Sch 1 item 70, by substituting para (a)(ii), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1). Para (a)(ii) formerly read:
(ii)
such an amount would be paid, but for a set off under subsection 82(2) or section 219QA, 219RC or 219RE or the imposition of a sanction under paragraph 200(1)(h); and
S 219QB(1) amended by No 34 of 2010, s 3 and Sch 1 item 24, by substituting ", 219RC or 219RE" for "or 219RC" in para (a)(ii), effective 13 April 2010.
S 219QB(1) amended by No 53 of 2008, s 3 and Sch 4 items 70 and 71, by repealing the penalty and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where conduct means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 60 penalty units.
219QB(1A)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
History
S 219QB(1A) inserted by No 53 of 2008, s 3 and Sch 4 item 72, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219QB(2)
The amount must be remitted in the manner or way approved by the Secretary.
219QB(3)
The service must notify the Secretary of the remittal of the amount.
219QB(4)
The notice must:
(a)
be given in the form, and in the manner or way, approved by the Secretary; and
(b)
include any information required by the Secretary.
History
S 219QB inserted by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Division 2A - Weekly payments in respect of child care rebate to approved child care services
History
Div 2A inserted by No 25 of 2011, s 3 and Sch 1 item 71, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219QC Weekly payments of child care rebate
219QC(1)
If:
(a)
the Secretary, under section 65EAAA, calculates the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and
(b)
the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service;
the Secretary must pay the amount calculated to the credit of a bank account nominated and maintained by the service.
219QC(2)
If:
(a)
the Secretary, on recalculating under section 65EAAD the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week, increases the amount; and
(b)
the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service;
the Secretary must pay to the credit of a bank account nominated and maintained by the service an amount equal to the increase.
Relationship with other provisions
219QC(3)
This section is subject to:
(a)
Part 4 (overpayments and debt recovery); and
(b)
section 219QA (set off where amount of applicable fee reduction reduced on recalculation); and
(c)
section 219QD (set off where amount of applicable child care rebate reduced on recalculation); and
(d)
section 219RC (set off where enrolment ceases, where notification of decision to cease operating service or where enrolment began 4 years ago); and
(e)
section 219RE (set off where a payment under section 219RD is made); and
(f)
paragraph 200(1)(i) (suspending payment in respect of child care rebate).
History
S 219QC(3) amended by No 22 of 2017, s 3 and Sch 3 item 12, by substituting para (d), effective 1 July 2017. Para (d) formerly read:
(d)
section 219RC (set off where enrolment ceases or where notification of decision to cease operating service); and
History
S 219QC amended by No 25 of 2011, s 3 and Sch 2 item 8, by inserting "or where notification of decision to cease operating service" in para (d), effective 26 July 2011.
S 219QC inserted by No 25 of 2011, s 3 and Sch 1 item 71, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219QD Payments and set offs where recalculation results in reduced weekly child care rebate
219QD(1)
This section applies if:
(a)
the Secretary, on recalculating under section 65EAAD the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week, reduces the amount (including to nil); and
(b)
the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service.
History
S 219QD(1) substituted by No 25 of 2011, s 3 and Sch 2 item 9, applicable in relation to recalculations done under section 65EAAD of the Family Assistance Administration Act on or after 26 July 2011 in respect of weeks beginning before, on or after 26 July 2011.
S 219QD(1) formerly read:
219QD(1)
This section applies if:
(a)
the Secretary, on recalculating under section 65EAAD the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week, reduces the amount; and
(b)
the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service; and
(c)
the amount is reduced because of the substitution or withdrawal by the service of a report given under section 219N.
219QD(2)
The Secretary must pay the amount (if any) as last recalculated to the credit of a bank account nominated and maintained by the service.
History
S 219QD(2) amended by No 25 of 2011, s 3 and Sch 2 item 10, by inserting "(if any)", applicable in relation to recalculations done under section 65EAAD of the Family Assistance Administration Act on or after 26 July 2011 in respect of weeks beginning before, on or after 26 July 2011.
219QD(3)
The amount as calculated, or recalculated, immediately before the last recalculation must be set off against one or more child care service payments that are to be made to the service (the first service) or to another approved child care service operated by the person who operates the first service.
Note:
For child care service payment see subsection 3(1).
History
S 219QD(3) amended by No 25 of 2011, s 3 and Sch 2 item 11, by substituting "one or more child care service payments that are to be made to the service (the first service) or to another approved child care service operated by the person who operates the first service." and the note at the end for "a later payment to the service of an amount in respect of: (a) one or more payments under section 219Q or subsection 219QA(2) in respect of fee reduction; or (b) one or more payments under section 219QC or subsection (2) of this section in respect of child care rebate; or (c) one or more enrolment advances under section 219RA.", applicable in relation to payments that are to be made on or after 26 July 2011.
History
S 219QD inserted by No 25 of 2011, s 3 and Sch 1 item 71, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 219QE Remitting amounts that cannot be passed on
219QE(1)
If:
(a)
either:
(i)
an amount is paid to an approved child care service under section 219QC or subsection 219QD(2) for a week; or
(ii)
such an amount would be paid, but for a set off under subsection 82(2), section 219QA, section 219QD, section 219RC or section 219RE, or the imposition of a sanction under paragraph 200(1)(i); and
(b)
it is not reasonably practicable for the service to pass on to the individual within the time required under subsection 219EA(2) the child care rebate in respect of which the amount was or would have been paid;
the service must immediately remit to the Secretary an amount equal to the amount that could not be passed on.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breach of civil penalty provisions.
219QE(2)
An approved child care service commits an offence if the service contravenes subsection (1).
Penalty: 60 penalty units.
219QE(3)
The amount must be remitted in the manner or way approved by the Secretary.
219QE(4)
The service must notify the Secretary of the remittal of the amount.
219QE(5)
The notice must:
(a)
be given in the form, and in the manner or way, approved by the Secretary; and
(b)
include any information required by the Secretary.
History
S 219QE inserted by No 25 of 2011, s 3 and Sch 1 item 71, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Division 3 - Enrolment advances
History
Div 2 and Div 3 substituted for Div 2 by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219R Election to receive enrolment advance
219R(1)
An approved child care service, other than an approved occasional care service, may, when giving notice in accordance with section 219A before 1 July 2017, elect to receive the payment of an enrolment advance in relation to an enrolment for sessions of care the first of which is to take place before 1 July 2017.
History
S 219R(1) substituted by No 22 of 2017, s 3 and Sch 3 item 13, effective 1 July 2017. S 219R(1) formerly read:
219R(1)
An approved child care service, other than an approved occasional care service, may, when giving notice in accordance with section 219A, elect to receive the payment of an enrolment advance in relation to the enrolment.
219R(2)
The election must:
(a)
be given in the form, and in the manner or way, approved by the Secretary; and
(b)
include any information required by the Secretary.
219R(3)
If notice in accordance with section 219A is given on or after 1 July 2017:
(a)
subsection (1) does not apply (so that an election cannot be made when giving the notice); and
(b)
no payment of enrolment advance may be made in relation to the Secretary's confirmation of the notified enrolment.
History
S 219R(3) inserted by No 22 of 2017, s 3 and Sch 3 item 14, effective 1 July 2017.
History
S 219R substituted by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. For former wording of s 219R, see note under Div 2 heading.
S 219R inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219RA Payment of enrolment advance
219RA(1)
If an approved child care service, other than an approved occasional care service:
(a)
makes an election in accordance with section 219R in respect of an enrolment; and
(b)
the Secretary confirms the enrolment under section 219AE;
the Secretary must pay the amount of the advance to the credit of a bank account nominated and maintained by the service.
Effect of notification of decision to cease operating service
219RA(1A)
However, the Secretary may decide not to pay the advance to the service under subsection (1) if:
(a)
before the day the Secretary proposes to pay the advance, the operator of the service notified the Secretary under subsection 219M(1) of the operator's decision to cease operating the service; and
(b)
before that day, the operator has not notified the Secretary (in the form, and in the manner or way, approved by the Secretary) of a decision by the operator to continue operating the service.
History
S 219RA(1A) inserted by No 79 of 2011, s 3 and Sch 1 item 24, applicable in relation to notices given under subsection 219M(1) of that Act on or after 26 July 2011.
219RA(1B)
If:
(a)
the Secretary does not pay the advance to the service because of subsection (1A); and
(b)
the operator of the service notifies the Secretary (in the form, and in the manner or way, approved by the Secretary) of a decision by the operator to continue operating the service; and
(c)
the enrolment concerned has not ceased before that notification;
the Secretary must pay the amount of the advance to the credit of a bank account nominated and maintained by the service.
History
S 219RA(1B) inserted by No 79 of 2011, s 3 and Sch 1 item 24, effective 26 July 2011.
219RA(1C)
If:
(a)
in respect of an enrolment, the Secretary sets off an amount under subsection 219RC(3) against a payment to an approved child care service; and
(b)
after the set off, the operator of the applicable service (within the meaning of that subsection) notifies the Secretary (in the form, and in the manner or way, approved by the Secretary) of a decision by the operator to continue operating the service; and
(c)
the enrolment has not ceased before that notification;
then the Secretary may pay an enrolment advance (in respect of the enrolment) equal to the amount worked out in accordance with section 219RB to the credit of a bank account nominated and maintained by that applicable service.
History
S 219RA(1C) inserted by No 79 of 2011, s 3 and Sch 1 item 24, effective 26 July 2011.
Interpretation
219RA(2)
This section is subject to:
(a)
Part 4 (overpayments and debt recovery); and
(b)
section 219QA (set off where amount of applicable fee reduction reduced on recalculation); and
(ba)
section 219QD (set off where amount of applicable child care rebate reduced on recalculation); and
(c)
section 219RC (set off where enrolment ceases, where notification of decision to cease operating service or where enrolment began 4 years ago); and
(ca)
section 219RE (set off where a payment under section 219RD is made); and
(d)
paragraph 200(1)(f) (withholding enrolment advances).
History
S 219RA(2) amended by No 22 of 2017, s 3 and Sch 3 item 15, by substituting para (c), effective 1 July 2017. Para (c) formerly read:
(c)
section 219RC (set off where enrolment ceases or where notification of decision to cease operating service); and
S 219RA(2) amended by No 79 of 2011, s 3 and Sch 1 item 25, by inserting "or where notification of decision to cease operating service" in para (c), effective 26 July 2011.
S 219RA(2) amended by No 25 of 2011, s 3 and Sch 1 item 71, by inserting para (ba), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 219RA(2) amended by No 34 of 2010, s 3 and Sch 1 item 25, by inserting para (ca), effective 13 April 2010.
Notice of payment
219RA(3)
The Secretary must give the service notice of a payment under this section.
History
S 219RA(3) amended by No 79 of 2011, s 3 and Sch 1 item 26, by substituting "a payment under this section" for "the payment", effective 26 July 2011.
219RA(4)
Notice of the payment must be given in the form, and in the manner or way, approved by the Secretary.
History
S 219RA inserted by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219RB Amount of enrolment advances
219RB(1)
The Secretary may, by legislative instrument, determine the amount of the enrolment advance that may be paid in respect of enrolments of a specified class.
219RB(2)
Without limiting subsection (1), the Secretary may provide for the indexation of enrolment advances.
History
S 219RB inserted by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 219RC Setting off enrolment advance
Enrolment ceases
219RC(1)
If an enrolment of a child for care by an approved child care service (the
first service
) ceases in respect of which:
(a)
an enrolment advance was paid; or
(b)
an enrolment advance would have been paid but for a set off under subsection 82(2), section 219QA or section 219QD, this section or section 219RE or the imposition of a sanction under paragraph 200(1)(f);
the Secretary must set off an amount equal to the amount of the enrolment advance against one or more child care service payments that are to be made to the first service or to another approved child care service operated by the person who operates the first service.
Note:
For
child care service payment
see subsection 3(1).
History
S 219RC(1) amended by No 79 of 2011, s 3 and Sch 1 item 29, by substituting all words after "amount of the enrolment advance", applicable in relation to payments that are to be made on or after 26 July 2011. The substituted words formerly read:
against:
(c)
any other enrolment advance that is to be paid to the service; or
(d)
any fee reduction that is to be paid to the service in relation to that or another enrolment; or
(e)
any weekly payment of child care rebate that is to be paid to the service in relation to that or another enrolment.
S 219RC(1) renumbered from 219RC and amended by No 79 of 2011, s 3 and Sch 1 items 27 and 28, by inserting "(1)" before "If" and inserting "of a child for care by an approved child care service (the
first service
)", effective 26 July 2011.
S 219RC amended by No 25 of 2011, s 3 and Sch 1 items 73 and 74, by substituting ", section 219QA or section 219QD" for "or section 219QA" in para (b) and inserting para (e), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 219RC amended by No 34 of 2010, s 3 and Sch 1 item 26, by substituting ", this section or section 219RE" for "or 219RC" in para (b), effective 13 April 2010.
S 219RC inserted by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
219RC(2)
(Repealed by No 22 of 2017)
History
S 219RC(2) repealed by No 22 of 2017, s 3 and Sch 3 item 17, applicable in relation to enrolments beginning before, on or after 1 July 2017. S 219RC(2) formerly read:
219RC(2)
Subsection (1) does not apply in relation to an enrolment advance if subsection (3) has applied in relation to the advance.
219RC(2) inserted by No 79 of 2011, s 3 and Sch 1 item 30, effective 26 July 2011.
Notification of decision to cease operating service
219RC(3)
If:
(a)
an operator of an approved child care service (the
applicable service
) notifies the Secretary under subsection 219M(1) of the operator's decision to cease operating the applicable service; and
(b)
either:
(i)
an enrolment advance was paid to the applicable service in respect of an enrolment; or
(ii)
an enrolment advance would have been so paid but for a set off under subsection 82(2), section 219QA section 219QD, this section or section 219RE or the imposition of a sanction under paragraph 200(1)(f); and
(c)
(Repealed by No 22 of 2017
(d)
the operator has not notified the Secretary (in the form, and in the manner or way, approved by the Secretary) of a decision by the operator to continue operating the applicable service;
the Secretary must set offan amount equal to the amount of the advance against one or more child care service payments that are to be made to the applicable service or to another approved child care service operated by the person who operates the applicable service.
Note:
For
child care service payment
see subsection 3(1).
History
S 219RC(3) amended by No 22 of 2017, s 3 and Sch 3 item 18, by repealing para (c), applicable in relation to enrolments beginning before, on or after 1 July 2017. Para (c) formerly read:
(c)
subsection (1) has not applied in relation to the advance; and
S 219RC(3) amended by No 25 of 2011, s 3 and Sch 2 item 12, by inserting "section 219QD" in para (b)(ii), effective 26 July 2011.
S 219RC(3) inserted by No 79 of 2011, s 3 and Sch 1 item 30, applicable in relation to notices given under subsection 219M(1) of that Act on or after 26 July 2011.
Enrolment began at least 4 years ago
219RC(4)
If:
(a)
on a day, at least 4 years have passed since the day an enrolment of a child for care by an approved child care service (the
first service
) began; and
(b)
either of the following occurred in respect of the enrolment:
(i)
an enrolment advance was paid;
(ii)
an enrolment advance would have been paid but for a set-off under subsection 82(2), section 219QA or section 219QD, this section or section 219RE or the imposition of a sanction under paragraph 200(1)(f);
the Secretary must set off an amount equal to the amount of the enrolment advance against one or more child care service payments that are to be made to the first service or to another approved child care service operated by the person who operates the first service.
Note:
For
child care service payment
see subsection 3(1).
History
S 219RC(4) inserted by No 22 of 2017, s 3 and Sch 3 item 19, applicable in relation to enrolments beginning before, on or after 1 July 2017.
One set-off per amount
219RC(5)
Despite subsection (1), (3) or (4), the Secretary must not set off, under the subsection, an amount equal to the amount of a particular enrolment advance if the Secretary has already set off that amount in relation to the enrolment advance under another subsection of this section.
History
S 219RC(5) inserted by No 22 of 2017, s 3 and Sch 3 item 19, applicable in relation to enrolments beginning before, on or after 1 July 2017.
Division 4 - Business continuity payments
History
Div 4 inserted by No 34 of 2010, s 3 and Sch 1 item 27, effective 13 April 2010.
SECTION 219RD Business continuity payments
219RD(1)
The Secretary may determine that a payment is to be made to an approved child care service in relation to a period if:
(a)
the service is required to give a report under subsection 219N(1) or (2) for a week in respect of one or more enrolments; and
(b)
the service does not give the report for the week within the period applicable under subsection 219N(5); and
(c)
the Secretary is satisfied that the failure to give the report is due to circumstances specified in a determination under subsection (2).
Note:
Section 219RE deals with the setting off of payments made under this section.
219RD(2)
The Minister must, by legislative instrument, make a determination:
(a)
specifying circumstances for the purposes of paragraph (1)(c); and
(b)
setting out the method of determining the amounts of payments under this section.
The determination may set out any other matters relating to the making of payments under this section that the Minister thinks appropriate.
219RD(3)
The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved child care service.
219RD(4)
The Secretary must give the approved child care service notice of the payment and of the period to which the payment relates.
219RD(5)
Notice of the payment must be given in the form, and in the manner or way, approved by the Secretary.
History
S 219RD inserted by No 34 of 2010, s 3 and Sch 1 item 27, effective 13 April 2010. No 34 of 2010, s 3 and Sch 1 item 28 contains the following application provision:
Application
28
Paragraph 219RD(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, applies in relation to:
(a)
a report required to be given under subsection 219N(1) or (2) of that Act on or after 13 April 2010; and
(b)
a report required to be given under that subsection before 13 April 2010, where the period under subsection 219N(5) of that Act relating to the report ends on or after 13 April 2010.
SECTION 219RE
SECTION 219RE Setting off business continuity payments
219RE
If a payment is made to an approved child care service (the
first service
) under section 219RD, the Secretary must set off an amount equal to the payment against one or more child care service payments that are to be made to the first service or to another approved child care service operated by the person who operates the first service.
Note:
For
child care service payment
see subsection 3(1).
History
S 219RE amended by No 79 of 2011, s 3 and Sch 1 item 32, by substituting all the words after "amount equal to the payment", applicable in relation to payments that are to be made on or after 26 July 2011. The substituted words formerly read:
against:
(a)
any amount that is to be paid to the service in respect of fee reduction; or
(aa)
any amount that is to be paid to the service in respect of weekly child care rebate; or
(b)
any enrolment advance that is to be paid to the service; or
(c)
any payment that is to be made to the service under:
(i)
subitem 97(5) of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007; or
(ii)
subitem 97A(5) of that Schedule (as modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009).
S 219RE amended by No 79 of 2011, s 3 and Sch 1 items 31, by inserting "(the
first service
)", effective 26 July 2011.
S 219RE amended by No 25 of 2011, s 3 and Sch 1 item 75, by inserting para (aa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 219RE inserted by No 34 of 2010, s 3 and Sch 1 item 27, effective 13 April 2010.
Pt 8A (heading) substituted by No 50 of 2009, s 3 and Sch 5 item 11, effective 24 June 2009. The heading formerly read:
PART 8A - OBLIGATIONS OF, AND ADVANCES TO, APPROVED CHILD CARE SERVICES
[
CCH Note:
The Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 (No 118 of 2007), s 3 and Sch 1 Pt 2, contains the following provisions.
Part 2 - Application and transitional provisions
91 Application day
(1)
In this Part:
application day
means:
(a)
1 July 2009, unless an earlier or later day is determined by the Secretary under subitem (2) or (3); or
(b)
if an earlier day is determined by the Secretary under subitem (2) for an approved child care service, then for that service - the earlier day; or
(c)
if a later day is determined by the Secretary under subitem (3) for an approved child care service, then for that service - the later day.
(2)
The Secretary may determine a day that falls on or after 1 July 2007 but before 1 July 2009 as the
application day
for a specified approved child care service.
(3)
The Secretary may determine a day that falls after 1 July 2009 as the application day for a specified approved child care service, if the Secretary is satisfied that the service will be unable to satisfy the requirements imposed under the amendments made by this Schedule on 1 July 2009 because of technical difficulties, that are beyond the control of the service, in accessing the electronic interface by which those requirements are to be met.
92 Electronic communications
For the purposes of section 4 of the A New Tax System (Family Assistance) (Administration) Act 1999, this Part is taken to form part of the family assistance law.
93 Application
The amendments made by this Schedule apply:
(a)
to the extent that the amendments relate to the enrolment of a child for care by an approved child care service, or enrolment advances - to enrolments that occur on or after the application day for the service; or
(b)
otherwise - to a session or sessions of care provided by an approved child care service to a child during a week falling wholly after the application day for the service.
Note:
The A New Tax System (Family Assistance) Act 1999 and the A New Tax System (Family Assistance) (Administration) Act 1999, as they were in force immediately before the commencement of this Schedule, continue to apply to sessions of care provided by an approved child care service in a week starting before or on that application day.
History
S 93 amended by No 34 of 2010, s 3 and Sch 5 item 1, by inserting the note, effective 29 June 2007.
94 Children already enrolled on application day
If a child is already enrolled for care by an approved child care service on the application day for the service:
(a)
it is a condition for the continued approval of the service that the service give the Secretary notice of the enrolment in accordance with sections 219A to 219AB, inserted by item 82, within 7 days after the application day; and
(b)
the amendments made by this Schedule otherwise apply in relation to the enrolment in the same way as they would apply if it had taken place after the application day.
History
S 94 amended by SLI No 82 of 2009, reg 2.1, by substituting "it is a condition for the continued approval of the service that the service give the Secretary notice" for "the service must give the Secretary notice", effective 16 May 2009.
95 Notification of email address
(1)
It is a condition for the continued approval of an approved child care service that the service notify the Secretary of the service's email address within 7 days after the application day for the service.
(2)
The service is taken to have complied with subitem (1) if the service notifies the Secretary of its email address before the application day, and the service's email address does not change between notification and the application day.
(3)
Notice must be given in the form, and in the manner or way, approved by the Secretary.
96 Obligation to give reports to Secretary for sessions of care before application day
If the application day for an approved child care service falls within a reporting period for the service, it is a condition for the continued approval of the service that the service comply with section 219N of the Family Assistance Administration Act, as in force immediately before the commencement of this Schedule, in respect of that reporting period as if:
(a)
subsection 219N(1) referred to subsection (3) or (4), and not subsection (3), (4) or (5); and
(b)
the reference in paragraph 219N(2)(a) to subsection 219P(4) of that Act were a reference to that subsection as in force immediately before the commencement of this Schedule; and
(c)
the reference in paragraph 219N(3)(c) to section 219A of that Act were a reference to that section as in force immediately before the commencement of this Schedule; and
(d)
the reference in paragraph 219N(4)(a) to section 219B of that Act were a reference to that section as in force immediately before the commencement of this Schedule; and
(e)
the reference in subsections 219N(3) and (4) to "each week of the reporting period" were a reference to "each session of care in the reporting period that falls before the service's application day under Part 2 of Schedule 1 of the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007"; and
(f)
subsection 219N(5) were repealed.
History
S 96 amended by SLI No 82 of 2009, reg 2.2, by substituting "it is a condition for the continued approval of the service that the service comply with section 219N" for "the service must comply with section 219N", effective 16 May 2009.
96A Recovering excess advances paid to approved child care service but not fully recouped before application day
(1)
This item applies if:
(a)
under section 219S of the Family Assistance Administration Act, as in force before the commencement of this Schedule, a comparison is or has been made of the following amounts relating to an approved child care service and a reporting period ending before the application day for the service:
(i)
the amount of the advance determined by the Secretary under section 219Q of that Act, as in force before the commencement of this Schedule, in respect of the service and the period;
(ii)
the amount passed on by the service in reduced fees during the period; and
(b)
the amount of the advance exceeds the amount passed on.
(2)
So much of the excess as is not offset as required by section 219S of the Family Assistance Administration Act, as in force before the commencement of this Schedule, before the application day for the service becomes a debt due to the Commonwealth by the service on:
(a)
the application day for the service; or
(b)
if the comparison is made after the application day for the service - the day the comparison is made.
(3)
Subsection 82(2) of the Family Assistance Administration Act (as amended by this Schedule) applies in respect of the recovery of the debt (as if it were a debt as defined in subsection 82(3) of that Act).
(4)
Division 4 (Non-recovery of debts) of Part 4 of the Family Assistance Administration Act applies in relation to the debt as if it were a debt recoverable by the Commonwealth under Division 2 of that Part.
(5)
The debt is discharged if:
(a)
item 97A applies because of the comparison; and
(b)
another comparison is made under that item in relation to the same approved child care service and the same period.
Note:
A new debt may be created by item 97A as a result of the comparison under that item.
History
S 96A(5) inserted by No 34 of 2010, s 3 and Sch 5 item 4, effective 16 May 2009.
(6)
In this item:
item 97A
means item 97A of this Schedule as modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009 as in force at the commencement of this definition.
History
S 96A(6) inserted by No 34 of 2010, s 3 and Sch 5 item 4, effective 16 May 2009.
History
S 96A inserted by No 34 of 2010, s 3 and Sch 5 item 2, effective 29 June 2007.
97 Acquittal of advances paid to approved child care service before application day
(1)
This item applies to each of the following periods (a
relevant period
) in relation to an approved child care service:
(a)
a reporting period ending before the application day for the service, if at the closing day there has not been an acquittal under section 219S of the Family Assistance Administration Act, as in force immediately before the commencement of this Schedule, of advances paid in respect of the period; and
(b)
for the reporting period in which the application day for the service falls - so much of the reporting period as falls before the application day.
History
S 97(1) substituted by SLI No 82 of 2009, reg 2.3, effective 16 May 2009. S 97(1) formerly read:
(1)
This item applies in relation to:
(a)
each approved child care service in respect of which there has been no acquittal under section 219S of the Family Assistance Administration Act, as in force immediately before the commencement of this Schedule, of advances paid during a reporting period before the closing day (a
relevant period
); and
(b)
for the reporting period in which the application day for an approved child care service falls - so much of the reporting period as falls before the application day (a relevant period).
(2)
The Secretary must compare the amount of the advance determined by the Secretary under section 219Q of the Family Assistance Administration Act, as in force immediately before the commencement of this Schedule, in respect of the service and each relevant period with the amount passed on by the service in reduced fees during that period, in compliance with sections 219A and 219B of that Act, as in force immediately before commencement of this Schedule.
(3)
In comparing the 2 amounts, the Secretary may assume that an approved child care service that does not comply with:
(a)
subsection 219N(1), paragraph 219N(2)(b), and subsections 219N(3) and (4), as in force immediately before the commencement of this Schedule, in relation to a relevant period mentioned in paragraph (1)(a) of this item; or
(b)
item 96 in relation to a relevant period mentioned in paragraph (1)(b) of this item;
has not passed on any amount in reduced fees during the period.
(4)
If the amount of the advance is more than the amount of the reduced fees:
(a)
the difference in the amounts is a debt due to the Commonwealth by the service; and
(b)
the debt is taken to meet the definitions of
debt
in subsection 82(3) and section 94 of the Family Assistance Administration Act.
History
S 97(4)(b) substituted by SLI No 82 of 2009, reg 2.3, effective 16 May 2009. Para (b) formerly read:
(b)
subsection 82(2) of the Family Assistance Administration Act applies in respect of the recovery of that debt.
(5)
If the amount of the advance is less than the amount of the reduced fees, the difference in the amounts is to be paid to the credit of a bank account nominated and maintained by the service.
(5A)
A payment under subitem (5) is a family assistance payment for the purposes of section 93A of the Family Assistance Administration Act.
History
S 97(5A) inserted by SLI No 82 of 2009, reg 2.3, effective 16 May 2009.
(6)
The Secretary must give notice of any debt arising under subitem (4), or any payment made under subitem (5), to the service.
(7)
The notice must be given in the form, and in the manner or way, approved by the Secretary.
(8)
In this item:
closing day
, in relation to an approved child care service, means the last day of the second reporting period immediately following the reporting period in which the service's application day falls.
97A Adjustment of the acquittal of advances
(1)
This item applies to a period (a
relevant period
) in relation to an approved child care service if:
(a)
there has been an acquittal in respect of the period under:
(i)
section 219S of the Family Assistance Administration Act as in force immediately before the commencement of this Schedule; or
(ii)
item 97; and
(b)
any of the following then happens within 2 years after the application day for the approved child care service:
(i)
the service provides a report for the period under subsection 219N(1) of the Family Assistance Administration Act, as in force before the commencement of this Schedule;
(ii)
the service corrects a report for the period under subsection 219N(6) of that Act, as in force immediately before the commencement of this Schedule;
(iii)
the service provides or corrects a report for the period under item 96;
(iv)
the Secretary otherwise believes that the difference between the amount of the advance paid in respect of the period and the amount passed on by the service in reduced fees during the period may have been worked out incorrectly.
Note:
An acquittal may have occurred under item 97 before the service provided a report for the period, if the Secretary made an assumption mentioned in subitem 97(3).
(2)
The Secretary may compare the amount of the advance determined by the Secretary under section 219Q of the Family Assistance Administration Act, as in force immediately before the commencement of this Schedule, in respect of the service and the relevant period with the amount passed on by the service in reduced fees during that period, in compliance with sections 219A and 219B of that Act, as in force immediately before commencement of this Schedule.
(3)
If the Secretary decides to compare the 2 amounts in respect of the relevant period, the comparison replaces any previous comparison under item 97 or this item in respect of that period for all purposes.
(4)
If the amount of the advance is more than the amount of the reduced fees:
(a)
the difference in the amounts is a debt due to the Commonwealth by the service; and
(b)
the debt is taken to meet the definitions of
debt
in subsection 82(3) and section 94 of the Family Assistance Administration Act.
(5)
If the amount of the advance is less than the amount of the reduced fees:
(a)
the difference in the amounts is to be paid to the credit of a bank account nominated and maintained by the service; and
(b)
the payment is a family assistance payment for the purposes of section 93A of the Family Assistance Administration Act.
(6)
The Secretary must give notice of any debt arising under subitem (4), or any payment made under subitem (5), to the service.
(7)
The noticemust be in the form, and in the manner or way, approved by the Secretary.
History
S 97A inserted by SLI No 82 of 2009, reg 2.4, effective 16 May 2009.
[
CCH Note:
Act No 34 of 2010, s 3 and Sch 5 item 8, contains the following provision, effective 13 April 2010:
8 Comparisons of amounts of advances and amounts passed on
(1)
This item applies if, before the commencement of this item, an officer (within the meaning of the Family Assistance Administration Act) did either or both of the following without authority from the Secretary:
(a)
compared the amounts described in subitem (2) of item 97, or of item 97A, of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007;
(b)
gave notice purporting to be notice of:
(i)
a debt arising under subitem (4) of item 97, or of item 97A, of that Schedule; or
(ii)
a payment under subitem (5) of item 97, or of item 97A, of that Schedule.
(2)
Whichever of those items is relevant applies, and is taken always to have applied, in relation to what the officer did as if it had been done by the Secretary.
(3)
In this item:
item 97A
of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 means item 97A of that Schedule as modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009 as in force at the commencement of this definition.
]
97B Debts arising under this Part may be set off against payments required by this Part
(1)
A debt arising under item 96A, item 97 or item 97A may be recovered (wholly or partly) by setting the debt off against a payment required by:
(a)
item 97 or item 97A; or
(b)
section 219S of the Family Assistance Administration Act as in force before the commencement of this Schedule.
History
S 97B(1) amended by No 34 of 2010 (as amended by No 79 of 2011), s 3 and Sch 5 items 5 and 6, by substituting ", item 97 or item 97A" for "or 97" and by inserting "or item 97A" after "item 97" in para (a), effective 16 May 2009.
(2)
This item does not limit, and is not limited by, subsection 82(2) of the Family Assistance Administration Act as in force after the commencement of this Schedule.
(3)
In this item:
item 97A
means item 97A of this Schedule as modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009.
History
S 97B(3) inserted by No 34 of 2010, s 3 and Sch 5 item 7, effective 16 May 2009.
History
S 97B inserted by No 34 of 2010, s 3 and Sch 5 item 3, effective 29 June 2007.
97C Payments under items 97 and 97A subject to set off
(1)
Subitem 97(5) and subitem 97A(5) are subject to:
(a)
paragraph 82(2)(a) of the Family Assistance Administration Act (about set off of debts); and
(b)
subsection 219QA(3) of that Act (about set off where amount of applicable fee reduction reduced on recalculation); and
(ba)
subsection 219QD(3) of that Act (about set off where amount of weekly child care rebate reduced on recalculation); and
(c)
section 219RC of that Act (about set off of enrolment advances); and
(d)
section 219RE of that Act (about set off of business continuity payments).
History
S 97C(1) amended by No 25 of 2011, s 3 and Sch 2 item 15, by inserting para (ba), effective 26 July 2011.
S 97C(1) substituted by No 79 of 2011, s 3 and Sch 1 item 33, effective 26 July 2011. S 97C(1) formerly read:
(1)
Subitem 97(5) and subitem 97A(5) are subject to section 219RE of the Family Assistance Administration Act (about setting off business continuity payments).
(2)
In this item:
subitem 97A(5)
means subitem 97A(5) of this Schedule as modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009.
History
S 97C inserted by No 34 of 2010, s 3 and Sch 1 item 29, effective 13 April 2010.
98 Notice where individual not conditionally eligible and approved child care service not eligible
(1)
This item applies:
(a)
in relation to each of the following periods:
(i)
for the reporting period in which the application day for an approved child care service falls - so much of the reporting period as falls before the application day (a
relevant period
);
(ii)
each earlier reporting period determined by the Secretary for the approved child care service (a
relevant period
); and
(b)
if, in respect of a child to whom the service provides care during the relevant period:
(i)
a determination under section 50F that an individual is conditionally eligible for child care benefit by fee reduction for care provided to the child is not in force in respect of any individual and that child when the service provides the care; and
(ii)
the service is not eligible under section 47 of the Family Assistance Act for payment of child care benefit by fee reduction for the care.
(2)
The service must give the Secretary a report in the manner provided in subitem (3), stating the following matters in respect of the child and each week, or part of a week, that falls within the relevant period:
(a)
the name of the child;
(b)
the number of hours of care in the sessions of care in respect of which the service would be required, under section 219A of the Family Assistance Administration Act in item 1 of the table, as in force immediately before the commencement of this Schedule, to reduce fees if a determination of conditional eligibility under section 50F was in force in respect of an individual and the child when the care was provided, if the service has charged for those hours of care;
(c)
any other information required by the Secretary in the form.
(3)
The report must be given:
(a)
to the Secretary either:
(i)
by the end of the second financial year immediately following the financial year in which the application day falls; or
(ii)
if the Secretary requests the service to give the report earlier - within 30 days after that request is made; and
(b)
in the form, and in the manner or way, approved by the Secretary under paragraph 219N(2)(b), as in force immediately before the commencement of this Schedule.
(4)
The request must be made in the form, or in the manner or way, approved by the Secretary.
(5)
If an approved child care service is required to give a report under this item for a relevant period, it is not required to give a report under section 219N, as in force immediately before the commencement of this Schedule, containing the information set out in subsection (5) of that section, for that period. However, it is a condition for the continued approval of the service that the service comply with this item.
99 Information other than protected information obtained for the purposes of the Child Care Management System Pilot
(1)
A person may obtain information other than protected information for the purposes of the Child Care Management System Pilot.
(2)
A person must not:
(a)
make a record of information, other than protected information, obtained for the purposes of the Child Care Management System Pilot; or
(b)
disclose such information to any person; or
(c)
otherwise use such information;
unless that action:
(d)
is done for the purposes of the Child Care Management System Pilot; or
(e)
is otherwise authorised by law.
Penalty: 2 years imprisonment.
(3)
Despite any other law, an approved child care service, or a person engaged in the conduct of an approved child care service, may:
(a)
make a record of personal information held in the records of the service or person, in relation to a child to whom the service provides care, or an individual who has enrolled a child for care by the service; or
(b)
disclose such information to any person; or
(c)
otherwise use such information;
for the purposes of the Child Care Management System Pilot.
(4)
In this item:
personal information
has the same meaning as in the Privacy Act 1988.
100 Saving provision in relation to item 2
A determination in force immediately before the commencement of item 2 specifying circumstances as permitted circumstances for the purposes of subparagraph 10(2)(b)(iv) of the Family Assistance Act continues in force on and after the application day in respect of an approved child care service, as if it were a determination specifying those circumstances as permitted circumstances for the purposes of subparagraph 10(3)(c)(iv) of that Act.
100A Delegation
(1)
Subject to subsection (2), the Secretary may delegate to an officer all or any of the powers of the Secretary under this Schedule.
(2)
The Secretary must not delegate such a power to an officer of an agency other than the Department, unless the head of the agency has agreed to the delegation.
History
S 100A inserted by SLI No 82 of 2009, reg 2.5, effective 16 May 2009.
101 Transitional regulations
The Governor General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions, and prescribing any modification or adaptation of this Act, the Family Assistance Act or the Family Assistance Administration Act) relating to the amendments made by this Act.
102 Appropriation
The Consolidated Revenue Fund is appropriated for the purposes of making payments under this Part.
History
S 102 inserted by No 34 of 2010, s 3 and Sch 6 item 1, applicable in relation to payments made on or after 14 April 2010.
]
History
Part 8A inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Division 1 - Requirements in relation to enrolments and relevant arrangements
History
Div 1 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8A heading.
Div 1 (heading) substituted by No 50 of 2009, s 3 and Sch 5 item 12, effective 24 June 2009. The heading formerly read:
Division 1 - Obligations of approved child care services
Div 1 inserted by No 45 of 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 200A
Enrolment notices
Notice if a child starts to be enrolled
200A(1)
An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if a child starts to be enrolled for care by the service.
Notice if a child starts to be enrolled before approval given or during suspension ofapproval
200A(2)
An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if:
(a)
on the day a child starts to be enrolled for care by the service:
(i)
the provider is not approved, or not approved in respect of the service; or
(ii)
the provider's approval, or approval in respect of the service, is suspended; and
(b)
after that day, the Secretary gives the provider notice:
(i)
that the provider has been approved, or approved in respect of the service; or
(ii)
that the suspension has been revoked; and
(c)
the child is enrolled for care by the service on any day on or after the day the approval or revocation takes effect.
Notice if relevant arrangement entered into
200A(3)
An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if the provider and a person enter into an arrangement (a
relevant arrangement
) other than a complying written arrangement for the service to provide care to a child.
History
S 200A(3) amended by No 125 of 2019, s 3 and Sch 1 item 67, by substituting "a person" for "an individual", effective 16 December 2019.
Content and timing of notices
200A(4)
A notice is given in accordance with this subsection if:
(a)
it is given in a form and manner approved by the Secretary; and
(b)
it contains the information required by the Secretary; and
(c)
for a notice under subsection (1) - it is given by the later of:
(i)
7 days after the end of the week in which the child started to be enrolled; or
(ii)
if the child started to be enrolled in a period, or a series of consecutive periods, to which a payment under section 205A relates - 7 days after the end of the period, or the last such period; and
(d)
for a notice under subsection (2) - it is given no later than 7 days after the end of the week in which the Secretary gave the notice referred to in paragraph (2)(b); and
(e)
for a notice under subsection (3) - it is given no later than 7 days after the end of the week in which the relevant arrangement is entered into.
200A(4A)
If an approved provider of an approved child care service fails to give a notice under subsection (1), (2) or (3) by the day required under paragraph (4)(c), (d) or (e) (as the case requires):
(a)
the failure does not affect the validity of a notice given after that day; and
(b)
the notice is taken to have been given on the last day the notice was required to be given under paragraph (4)(c), (d) or (e) (as the case requires), other than for the purposes of subsections (5) and (6).
History
S 200A(4A) inserted by No 125 of 2019, s 3 and Sch 1 item 68, effective 16 December 2019.
Offence
200A(5)
A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).
Penalty: 60 penalty units.
Civil penalty
200A(6)
A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).
Civil penalty: 30 penalty units.
History
S 200A inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 200B
When a child is
enrolled
200B(1)
A child:
(a)
starts to be enrolled
for care by a child care service of a provider if:
(i)
the provider and an individual enter into a complying written arrangement for the service to provide care to the child; or
(ii)
the service provides care to the child in the circumstances referred to in subsection (4); and
(b)
ceases to be enrolled
for care by that service when the earliest of the following events happens:
(i)
for an enrolment that started as referred to in subparagraph (a)(i) - the arrangement ends;
(ii)
for an enrolment that started as referred to in subparagraph (a)(ii) - the care ceases to be provided in those circumstances;
(iii)
14 weeks have passed since the child last attended any of the service's sessions of care;
(iv)
an event prescribed by the Minister's rules.
History
S 200B(1) amended by No 125 of 2019, s 3 and Sch 1 item 88, by substituting "14 weeks" for "8 weeks" in para (b)(iii), effective 13 January 2020.
200B(1A)
The Minister's rules may prescribe circumstances in which one or more weeks covered wholly or partly by a period of emergency or disaster are to be disregarded for the purposes of subparagraph (1)(b)(iii).
History
S 200B(1A) inserted by No 26 of 2021, s 3 and Sch 1 item 14, effective 27 March 2021. For application provisions, see note under s 205C.
200B(2)
A child is
enrolled
for care by a service from the day the child starts to be enrolled until the child ceases to be enrolled. To avoid doubt, a child who ceases to be enrolled for care by a service is not enrolled for care by that service until the child starts to be
enrolled
for care by that service again.
200B(3)
A written arrangement between a provider and an individual is a
complying written arrangement
if the arrangement complies with the requirements prescribed by the Secretary's rules.
200B(4)
A service provides care to a child in the circumstances referred to in this subsection if:
(a)
immediately before the service starts to provide the care, the child is not enrolled for care by the service; and
(b)
any of the following applies in relation to the week in which the service starts to provide the care:
(i)
a certificate given by the approved provider of the service under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;
(ii)
a determination made by the Secretary under section 85CE (determination for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;
(iii)
the approved provider of the service has applied for a determination under section 85CE of the Family Assistance Act and the application has not been refused; and
(c)
the provider gives the Secretary a declaration referred to in paragraph 67CH(1)(c) in relation to sessions of care provided by the service to the child.
History
S 200B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 200C
200C
Variation of complying written arrangements
An approved provider must ensure that a variation of a complying written arrangement to which the provider is a party is done in writing, if the variation:
(a)
has the effect that information in the enrolment notice given by the provider for the child to whom the arrangement relates becomes incorrect; or
(b)
relates to a matter prescribed by the Minister's rules.
Civil penalty: 30 penalty units.
History
S 200C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 200D
Notice of change in circumstances - providers
200D(1)
An approved provider must give the Secretary notice in accordance with subsection (3) of the following events in relation to complying written arrangements or relevant arrangements to which the provider is a party and enrolment notices given by the provider:
(a)
a complying written arrangement is varied in a way that:
(i)
has the effect that information in the enrolment notice given in relation to a child becomes incorrect; or
(ii)
relates to a matter prescribed by the Minister's rules for the purposes of paragraph 200C(b);
(b)
information in an enrolment notice otherwise becomes incorrect;
(c)
information becomes available that, had it been available when an enrolment notice was given, should have been included in the notice;
(d)
information becomes available that, had it been available when an enrolment notice was given, would have required the notice to be given in a different form;
(e)
a child for whom an enrolment notice has been given ceases to be enrolled for care by the service for the reason mentioned in subparagraph 200B(1)(b)(i) (complying written arrangement ends);
(f)
a relevant arrangement in relation to a child has ended.
200D(2)
An approved provider must give the Secretary a notice in accordance with subsection (3) if:
(a)
on the day an event referred to in subsection (1) happens, the provider's approval, or approval in respect of the service, is suspended; and
(b)
after that day, the Secretary gives the provider notice that the suspension has been revoked; and
(c)
the child is enrolled for care by the service on any day on or after the day the revocation takes effect.
200D(3)
A notice under subsection (1) or (2) is given in accordance with this subsection if it is given:
(a)
in a form and manner approved by the Secretary; and
(b)
for a notice under subsection (1) - no later than the later of:
(i)
7 days after the day the event happened; and
(ii)
if the event happened in a period, or a series of consecutive periods, to which a payment under section 205A relates - 7 days after the end of the period, or the last such period; and
(c)
for a notice under subsection (2) - no later than 7 days after the Secretary gave the notice referred to in paragraph (2)(b).
200D(3A)
If an approved provider of an approved child care service fails to give a notice under subsection (1) or (2) by the day required under paragraph (3)(b) or (c) (as the case requires):
(a)
the failure does not affect the validity of a notice given after that day; and
(b)
the notice is taken to have been given on the last day the notice was required to be given under paragraph (3)(b) or (c) (as the case requires), other than for the purposes of subsections (4) and (5).
History
S 200D(3A) inserted by No 125 of 2019, s 3 and Sch 1 item 70, effective 16 December 2019.
Offence
200D(4)
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
200D(5)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 30 penalty units.
History
S 200D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 2 - Requirements in relation to CCS and ACCS by fee reduction
History
Div 2 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8A heading.
Div 2 and Div 3 substituted for Div 2 by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading. Div 2 formerly read:
Division 2 - Advances to approved child care services
SECTION 219Q Secretary may determine advances to be paid to approved child care services
219Q(1)
The Secretary may, in respect of an approved child care service and a reporting period, make one or more determinations that the service is to be paid a specified amount by way of advance to reimburse the service the amount of the fee reductions made by the service during the reporting period to:
(a)
the children of individuals in respect of whom determinations of conditional eligibility are in force; and
(b)
the children in respect of whom the service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction.
219Q(2)
In respect of each determination, the Secretary may also determine:
(a)
if the amount is to be paid in one payment only or in instalments; and
(b)
if the amount is to be paid in one payment only, the date on which the payment will be made; and
(c)
if the amount is to be paid in instalments, the dates on which each of the instalments will be paid and the amount of each instalment.
History
S 219Q inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219R Payment of advances
219R(1)
If the Secretary has made a determination under section 219Q in respect of an approved child care service, the Secretary must pay to the service:
(a)
if an amount of the difference referred to in subsection 219S(2) is required to be offset against an advance - the amount of the advance determined by the Secretary under section 219Q reduced by the amount referred to in subsection 219S(2); or
(b)
if an amount of the difference referred to in subsection 219S(4) is required to be paid to the service in an advance - the sum of the amount of the advance determined by the Secretary under section 219Q and the amount referred to in subsection 219S(4); or
(c)
if neither paragraph (a) nor (b) applies - the amount of the advance determined by the Secretary under section 219Q.
219R(2)
This section is subject to Part 4 (Overpayments and debt recovery).
History
S 219R inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219S Acquittal of advances paid to approved child care services
219S(1)
When a report for a reporting period is received from an approved child care service under section 219N or 219P, the Secretary must compare the amount of the advance determined by the Secretary under section 219Q in respect of the service and the reporting period with the amount passed on by the service in reduced fees (see sections 219A and 219B) during the reporting period. (The amount of fee reduction is the amount reported by the service to the Secretary under section 219N.)
219S(2)
If the amount of the advance is more than the amount of the reduced fees, the Secretary may determine that the difference in the amounts is to be offset against an advance amount determined by the Secretary under section 219Q in respect of the service.
219S(3)
If the Secretary makes a determination under subsection (2), the difference must be offset as provided for in that subsection.
219S(4)
If the amount of the advance is less than the amount of the reduced fees, the Secretary may determine that the difference in the amounts is to be paid to the service in an advance amount determined in respect of the service under section 219Q.
219S(5)
If the Secretary makes a determination under subsection (4), the difference must be paid as provided for in that subsection.
History
S 219S inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 219T Notice of determinations to pay and acquit advances
219T(1)
The Secretary must give notice of a determination under section 219Q to pay an advance to an approved child care service to the service concerned stating:
(a)
the amount of the advance determined under section 219Q in respect of the service; and
(b)
if an amount of a difference referred to in subsection 219S(2) is offset against the advance, the amount of the offset; and
(c)
if an amount of a difference referred to in subsection 219S(4) is paid to the service in addition to this advance, the amount that is in addition; and
(d)
the total amount that is to be paid after the amounts (if any) referred to in subsections 219S(2) and (4) have been taken account of; and
(e)
the period in respect of which the amount is paid; and
(f)
if the amount is to be paid in one payment only or in instalments; and
(g)
if the amount is to be paid in one payment only, the date on which payment will be made; and
(h)
if the amount is to be paid in instalments, the dates on which each of the instalments will be paid and the amount of each instalment.
219T(2)
The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.
History
S 219T inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
Div 2 inserted by No 45 of 2000, s 3 Sch 2 item 61, effective 1 July 2000. For transitional provisions see note under Pt 3 Div 4 heading.
SECTION 201A
Requirement to pass on fee reduction amount to individual entitled to be paid CCS or ACCS
Requirement to pass on or remit to Secretary fee reduction amount
201A(1)
A provider to whom a notice is given of a fee reduction decision for an individual must, no later than 14 days after the notice is given:
(a)
pass on the fee reduction amount for the decision to the individual; or
(b)
if it is not reasonably practicable to do so - remit the fee reduction amount to the Secretary, in a manner approved by the Secretary.
201A(2)
Subsection (1) does not apply in relation to a notice that includes a statement to the effect that the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2).
Note 1:
See subsections 67CE(6), 106A(3), 109B(2B) and 136(3).
Note 2:
In a prosecution for an offence under subsection (3), a defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
201A(2A)
If the Secretary is satisfied that there might be an adverse impact on the individual if the fee reduction amount for the decision is passed on or remitted within the period of 14 days referred to in subsection (1), the Secretary may direct that the period of 14 days is extended by such period as the Secretary considers appropriate.
History
S 201A(2A) inserted by No 66 of 2022, s 3 and Sch 8 item 3, effective 30 November 2022 and applicable in relation to fee reduction decisions that are made on or after 30 November 2022.
201A(2B)
If the Secretary gives a direction under subsection (2A) extending the period of 14 days referred to in subsection (1), subsection (1) has effect as if the reference to 14 days were a reference to the extended period.
History
S 201A(2B) inserted by No 66 of 2022, s 3 and Sch 8 item 3, effective 30 November 2022 and applicable in relation to fee reduction decisions that are made on or after 30 November 2022.
201A(2C)
The Secretary may give more than one direction under subsection (2A) extending the period referred to in subsection (1).
History
S 201A(2C) inserted by No 66 of 2022, s 3 and Sch 8 item 3, effective 30 November 2022 and applicable in relation to fee reduction decisions that are made on or after 30 November 2022.
Offence
201A(3)
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 80 penalty units.
Civil penalty
201A(4)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 60 penalty units.
Passing on
201A(5)
A provider may pass on a fee reduction amount by reducing fees or in any other way. As long as the individual receives the benefit of the fee reduction amount from the provider:
(a)
the provider is taken to have passed on the fee reduction amount; and
(b)
the individual is taken to have been paid an amount of CCS or ACCS equal to the amount of the fee reduction amount.
Notice of remittance
201A(6)
A provider that remits an amount in accordance with paragraph (1)(b) must give the Secretary written notice of the remittance:
(a)
in a form and manner approved by the Secretary; and
(b)
including any information required by the Secretary.
History
S 201A(6) amended by No 66 of 2022, s 3 and Sch 8 item 5, by omitting "The provider's notice must be given no later than 14 days after the notice of the fee reduction decision is given." after "by the Secretary.", effective 30 November 2022 and applicable in relation to fee reduction decisions that are made on or after 30 November 2022.
201A(7)
The provider must give the notice under subsection (6):
(a)
no later than 14 days after the notice of the fee reduction decision was given; or
(b)
if the Secretary has given a direction under subsection (2A) extending the period of 14 days referred to in subsection (1) - no later than the end of the extended period.
History
S 201A(7) inserted by No 66 of 2022, s 3 and Sch 8 item 6, effective 30 November 2022 and applicable in relation to fee reduction decisions that are made on or after 30 November 2022.
History
S 201A substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 201A formerly read:
SECTION 201A Immediate suspension for certain breaches
201A(1)
The Secretary may, by notice given to an approved child care service, suspend the approval of the service if the Secretary reasonably believes that:
(a)
the service is not complying with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the service is situated, relating to child care; or
(b)
there is an imminent threat to the health or safety of a child, or children, because of the care provided by the service to the child or children; or
(c)
due to urgent circumstances, it is no longer appropriate for the service to provide child care.
201A(2)
The Secretary must, in the notice:
(a)
specify a day, not earlier than the day on which the notice is given, on which the suspension is to take effect; and
(b)
specify the grounds upon which the Secretary has suspended the service's approval; and
(c)
inform the service of its rights under this Act to seek a review of the decision to suspend the service's approval.
201A(3)
If the Secretary suspends the approval of an approved child care service, the Secretary may at any time, by notice to the service, revoke the suspension with effect from the day specified in the notice.
S 201A inserted by No 118 of 2007, s 3 and Sch 3 item 24, effective 29 June 2007.
SECTION 201B
Enforcing payment of hourly session fees
Duty to enforce payment of hourly session fees
201B(1)
A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a service to a child in a week, must, subject to subsections (1A) and (1B), take all reasonable steps to ensure that the individual pays the provider, using an electronic funds transfer system, the difference between:
(a)
the total of the hourly session fees for all sessions of care provided by the service to the child in the week to which the decision relates; and
(b)
the sum of:
(i)
the fee reduction amount for the decision; and
(ii)
the amount of any payment prescribed by the Minister's rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of the sessions of care.
Note 1:
If, under subsection 201BA(1), the provider allows the individual, or the individual's partner, a permissible staff discount for the week, the amount of the discount is not recoverable from the individual or the individual's partner: see subsection 201BA(3).
Note 2:
If, under subsection 201BB(1), the provider allows the individual, or the individual's partner, a discount in relation to a session of care provided to the child in the week, the amount of the discount is not recoverable from the individual or the individual's partner: see subsection 201BB(3).
History
S 201B(1) amended by No 66 of 2022, s 3 and Sch 4 items 5 and 6, by substituting "must, subject to subsections (1A) and (1B), take" for "must take" and inserting ", using an electronic funds transfer system,", effective 1 July 2023.
S 201B(1) amended by No 66 of 2022, s 3 and Sch 6 items 9 and 10, by substituting "Note 1" for "Note" in the note and inserting note 2, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
S 201B(1) amended by No 66 of 2022, s 3 and Sch 5 item 4, by inserting the note, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
S 201B(1) amended by No 125 of 2019, s 3 and Sch 1 item 71, by substituting para (b), effective 16 December 2019. Para (b) formerly read:
(b)
the fee reduction amount for the decision.
Exceptions to requirement to pay fees using an electronic funds transfer system
201B(1A)
The Secretary may decide that a particular individual is not to be required to pay the provider an amount required under subsection (1) using an electronic funds transfer system if the Secretary is satisfied that circumstances prescribed by the Minister's rules exist in relation to the individual.
History
S 201B(1A) inserted by No 66 of 2022, s 3 and Sch 4 item 7, effective 1 July 2023.
S 201B(1A) repealed by No 66 of 2022, s 3 and Sch 6 item 1, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023. S 201B(1A) formerly read:
Exception because of prescribed event or circumstance
201B(1A)
The provider is not required to take reasonable steps in relation to a session of care provided by the service to the child if:
(a)
the Minister's rules prescribe a particular event or circumstance; and
(b)
the session of care is provided during the period prescribed by the Minister's rules for that event or circumstance; and
(c)
any other conditions prescribed by the Minister's rules for that event or circumstance are met.
Note:
A defendant bears an evidential burden in relation to the matters mentioned in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
S 201B(1A) inserted by No 22 of 2020, s 3 and Sch 9 item 8, effective 25 March 2020.
201B(1B)
If the Secretary is satisfied that exceptional circumstances exist in relation to a particular child care service, the Secretary may direct that all, or a part, of the amount that is to be paid by an individual to the provider of the service under subsection (1) is not required to be paid using an electronic funds transfer system.
History
S 201B(1B) inserted by No 66 of 2022, s 3 and Sch 4 item 7, effective 1 July 2023.
201B(1C)
A direction under subsection (1B) is not a legislative instrument.
History
S 201B(1C) inserted by No 66 of 2022, s 3 and Sch 4 item 7, effective 1 July 2023.
Offence
201B(2)
A person commits an offence if the person contravenes subsection (1).
Penalty: 80 penalty units.
Civil penalty
201B(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 60 penalty units.
History
S 201B substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 201B formerly read:
SECTION 201B Publicising sanctions or suspensions
201B(1)
If the Secretary:
(a)
does one or more of the things mentioned in paragraphs 200(1)(a) to (i); or
(b)
suspends the approval of a service under subsection 201A(1);the Secretary may publicise this in any way the Secretary thinks appropriate.
History
S 201B(1) amended by No 25 of 2011, s 3 and Sch 1 item 59, by substituting "paragraphs 200(1)(a) to (i)" for ""paragraphs 200(1)(a) to (h)" in para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
201B(2)
Without limiting subsection (1), the Secretary may publicise information that includes the following:
(a)
the name and address of the service;
(b)
the name of the operator of the service;
(c)
if the information relates to the doing of one or more of the things mentioned in paragraphs 200(1)(a) to (i):
(i)
the day when each thing done starts to have effect; and
(ii)
the things done; and
(iii)
each condition for the continued approval of the service that the service has not complied, or is not complying, with; and
(iv)
the day (if any) when each thing done ceases to have effect;
(d)
if the information relates to a suspension under subsection 201A(1):
(i)
the day when the suspension starts to have effect; and
(ii)
the grounds for the suspension; and
(iii)
the day (if any) when the suspension ceases to have effect.
History
S 201B(2) amended by No 25 of 2011, s 3 and Sch 1 item 59, by substituting "paragraphs 200(1)(a) to (i)" for "paragraphs 200(1)(a) to (h)" in para (c), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 201B inserted by No 53 of 2008, s 3 and Sch 5 item 20, applicable in relation to:
(a) a thing done under subsection 200(1) of the A New Tax System (Family Assistance) Administration) Act 1999 after 25 June 2008 (whether or not the thing is done in relation to non-compliance happening before that commencement); and
(b) a decision to suspend under subsection 201A(1) of that Act made after that commencement (whether or not the grounds for the suspension happen before that commencement).
SECTION 201BA
Provider may allow discount for care provided to child of educator or cook engaged by provider
201BA(1)
A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a child care service to a child in a week, may allow the individual, or the individual's partner, a discount (a
permissible staff discount
) on the pre-discount fee for the week for the individual, or the individual's partner, if:
(a)
the individual, or the individual's partner, is employed, contracted or otherwise engaged at a child care service by the provider, for any period during that week, as an educator (within the meaning of the Education and Care Services National Law) or a cook; and
(b)
the child care service referred to in paragraph (a) is not a family day care service or an in home care service.
Note:
For
pre-discount fee
, see subsection (4).
201BA(2)
The permissible staff discount that may be allowed to the individual, or the individual's partner, for the week under subsection (1) must not be more than 95% of the pre-discount fee for that week for the individual or the individual's partner.
201BA(3)
If the provider allows the individual, or the individual's partner, a permissible staff discount under subsection (1), the amount of the discount is not recoverable from the individual or the individual's partner.
Note:
Providing care of a child in a child care facility to a current employee at a discount may not attract fringe benefits tax in some circumstances: see subsection 47(2) of the Fringe Benefits Tax Assessment Act 1986.
Meaning of
pre-discount fee
201BA(4)
For the purposes of this section, the
pre-discount fee
for the week for the individual, or the individual's partner, is the difference between:
(a)
the total of the hourly session fees for all sessions of care provided by the child care service to the child in the week; and
(b)
the sum of:
(i)
the fee reduction amount for the fee reduction decision for the individual in relation to those sessions of care; and
(ii)
the amount of any payment prescribed by the Minister's rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of those sessions of care.
History
S 201BA inserted by No 66 of 2022, s 3 and Sch 5 item 5, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
SECTION 201BB
Provider may allow discount for session of care because of prescribed event or circumstance
201BB(1)
A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a child care service to a child in a week, may allow the individual, or the individual's partner, a discount (a
prescribed circumstances discount
) on the pre-discount fee for the week for the individual, or the individual's partner, that is attributable to one or more sessions of care provided by the service to the child in the week if:
(a)
the Minister's rules prescribe a particular event or circumstance; and
(b)
each session of care to which the discount relates is provided during the period prescribed by the Minister's rules for that event or circumstance; and
(c)
any other conditions prescribed by the Minister's rules for that event or circumstance are met.
Note:
For
pre-discount fee
, see subsection (4).
201BB(2)
The prescribed circumstances discount that may be allowed to the individual, or the individual's partner, under subsection (1) in relation to a session of care provided in the week may be the whole, or a part, of the pre-discount fee for the week for the individual, or the individual's partner, that is attributable to the session of care.
201BB(3)
If the provider allows the individual, or the individual's partner, a prescribed circumstances discount under subsection (1), the amount of the discount is not recoverable from the individual or the individual's partner.
Meaning of
pre-discount fee
201BB(4)
For the purposes of this section, the
pre-discount fee
for the week for the individual, or the individual's partner, is the difference between:
(a)
the total of the hourly session fees for all sessions of care provided by the child care service to the child in the week; and
(b)
the sum of:
(i)
the fee reduction amount for the fee reduction decision for the individual in relation to those sessions of care; and
(ii)
the amount of any payment prescribed by the Minister's rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of those sessions of care; and
(iii)
the amount of permissible staff discount (if any) allowed to the individual, or the individual's partner, for the week under subsection 201BA(1).
History
S 201BB inserted by No 66 of 2022, s 3 and Sch 6 item 2, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
SECTION 201C
Charging no more than usual hourly session fee
Duty to charge no more than usual hourly session fee
201C(1)
The approved provider of a child care service must not charge an individual who is eligible for ACCS for a session of care provided by the service an hourly session fee that exceeds the hourly session fee that:
(a)
the provider would ordinarily charge an individual who is eligible for CCS for the session of care; or
(b)
if the provider has, under subsection 201BB(1), allowed the individual, or the individual's partner, a discount in relation to the session of care - the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
History
S 201C(1) amended by No 66 of 2022, s 3 and Sch 6 item 3, by substituting para (b), applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023. Para (b) formerly read:
(b)
if the provider is not taking reasonable steps in relation to the session of care because of subsection 201B(1A) - the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201B(1A)(b).
S 201C(1) substituted by No 22 of 2020, s 3 and Sch 9 item 9, effective 25 March 2020. S 201C(1) formerly read:
201C(1)
The approved provider of a child care service must not charge an individual who is eligible for ACCS for a session of care provided by the service an hourly session fee that exceeds the hourly session fee the provider would ordinarily charge an individual who is eligible for CCS for the session of care.
201C(1A)
The approved provider of a child care service must not charge an individual who benefits from a payment prescribed by the Minister's rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act (a
prescribed payment
) in respect of a session of care provided by the service an hourly session fee that exceeds the hourly session fee that:
(a)
the provider would ordinarily charge an individual who does not receive a prescribed payment; or
(b)
if the provider has, under subsection 201BB(1), allowed the individual, or the individual's partner, a discount in relation to the session of care - the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
History
S 201C(1A) amended by No 66 of 2022, s 3 and Sch 6 item 4, by substituting para (b), applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023. Para (b) formerly read:
(b)
if the provider is not taking reasonable steps in relation to the session of care because of subsection 201B(1A) - the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201B(1A)(b).
S 201C(1A) substituted by No 22 of 2020, s 3 and Sch 9 item 9, effective 25 March 2020. S 201C(1A) formerly read:
201C(1A)
The approved provider of a child care service must not charge an individual who benefits from a payment prescribed by the Minister's rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act (a
prescribed payment
) in respect of a session of care provided by the service an hourly session fee that exceeds the hourly session fee the provider would ordinarily charge an individual who does not receive a prescribed payment.
S 201C(1A) inserted by No 125 of 2019, s 3 and Sch 1 item 72, effective 16 December 2019.
201C(1B)
The approved provider of a child care service must not charge an individual to whom, or to whose partner, a permissible staff discount is allowed for a week under subsection 201BA(1), an hourly session fee for a session of care provided by the service that exceeds the hourly session fee that:
(a)
the provider would ordinarily charge an individual to whom a permissible staff discount is not allowed under subsection 201BA(1) for the week; or
(b)
if the provider has, under subsection 201BB(1), allowed the individual, or the individual's partner, a discount in relation to the session of care - the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
History
S 201C(1B) substituted by No 66 of 2022, s 3 and Sch 6 item 5, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023. S 201C(1B) formerly read:
201C(1B)
If the approved provider of a child care service is not taking reasonable steps in relation to a session of care provided by the service to a child because of subsection 201B(1A), the provider must not charge an individual who is eligible for CCS for the session of care an hourly session fee that exceeds the hourly session fee that the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201B(1A)(b).
S 201C(1B) inserted by No 22 of 2020, s 3 and Sch 9 item 9, effective 25 March 2020.
201C(1C)
If:
(a)
an individual is eligible for CCS for a session of care provided by a child care service to a child; and
(b)
the approved provider of the service has, under subsection 201BB(1), allowed the individual, or the individual's partner, a discount in relation to the session of care;
the provider must not charge the individual, for the session of care, an hourly session fee that exceeds the hourly session fee that the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
History
S 201C(1C) inserted by No 66 of 2022, s 3 and Sch 6 item 5, applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
Offence
201C(2)
A person commits an offence of strict liability if the person contravenes subsection (1), (1A), (1B) or (1C).
Penalty: 80 penalty units.
History
S 201C(2) amended by No 66 of 2022, s 3 and Sch 6 item 6, by substituting "(1A), (1B) or (1C)" for "(1A) or (1B)", applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
S 201C(2) amended by No 22 of 2020, s 3 and Sch 9 item 10, by substituting ", (1A) or (1B)" for "or (1A)", effective 25 March 2020.
S 201C(2) amended by No 125 of 2019, s 3 and Sch 1 item 73, by inserting "or (1A)", effective 16 December 2019.
Civil penalty
201C(3)
A person is liable to a civil penalty if the person contravenes subsection, (1A), (1B) or (1C).
Civil penalty: 60 penalty units.
History
S 201C(3) amended by No 66 of 2022, s 3 and Sch 6 item 6, by substituting "(1A), (1B) or (1C)" for "(1A) or (1B)", applicable in relation to sessions of care provided to a child in a week that starts on or after 1 January 2023.
S 201C(3) amended by No 22 of 2020, s 3 and Sch 9 item 10, by substituting ", (1A) or (1B)" for "or (1A)", effective 25 March 2020.
S 201C(3) amended by No 125 of 2019, s 3 and Sch 1 item 73, by inserting "or (1A)", effective 16 December 2019.
History
S 201C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 201D
Requirement to give individuals statements of entitlement
201D(1)
This section applies if a provider is given a notice under subsection 67CE(4) of a determination made under section 67CD for an individual for a week, in relation to sessions of care provided to a child by an approved child care service of the provider.
201D(2)
The provider must give the individual a written statement in accordance with subsection (3) for the statement period that includes the week.
201D(3)
A statement is given in accordance with this subsection if:
(a)
it includes the following:
(i)
the start and end dates of the statement period;
(ii)
the hourly session fee for each session of care provided by the service to the child in the statement period;
(iii)
the total of the fee reduction amounts for the fee reduction decisions for the individual of which the provider was given notice for the weeks in the statement period;
(iv)
any other information prescribed by the Secretary's rules; and
(b)
it is given no later than 7 days after the day the provider is required to give a report under section 204B (requirement to report about children for whom care is provided) for the last week in the statement period.
201D(4)
If the Secretary's rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary's rules, by the time prescribed by the Secretary's rules.
Offence
201D(5)
A person commits an offence of strict liability if the person contravenes subsection (2) or (4).
Penalty: 60 penalty units.
Civil penalty
201D(6)
A person is liable to a civil penalty if the person contravenes subsection (2) or (4).
Civil penalty: 30 penalty units.
201D(7)
A
statement period
is:
(a)
a CCS fortnight; or
(b)
if the Secretary's rules prescribe a different period - the prescribed period.
History
S 201D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 201E
Statements following changes of entitlement
201E(1)
This section applies if a provider is given notice under subsection 106A(2) or 109B(2A) of a decision on review that varies, or substitutes a new determination for, a determination made under section 67CD for an individual for a week.
201E(2)
The provider must:
(a)
if it is reasonably practicable to do so - give the individual a written statement in accordance with subsection (3); and
(b)
otherwise - notify the Secretary that it is not reasonably practicable for the provider to do so and comply with any requirements prescribed by the Secretary's rules in the circumstances.
201E(3)
A statement is given in accordance with this subsection if:
(a)
it does either of the following:
(i)
it is given in accordance with subsection 201D(3) taking into account the effect of the decision on review;
(ii)
it identifies the statement given under subsection 201D(2) in relation to the determination to which the review related and updates it to take into account the effect of the decision on review; and
(b)
it is given no later than the end of the statement period immediately after the statement period in which the provider was given the notice referred to in subsection (1).
201E(4)
If the Secretary's rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary's rules, by the time specified in the Secretary's rules.
Offence
201E(5)
A person commits an offence of strict liability if the person contravenes subsection (2) or (4).
Penalty: 60 penalty units.
Civil penalty
201E(6)
A person is liable to a civil penalty if the person contravenes subsection (2) or (4).
Civil penalty: 30 penalty units.
History
S 201E inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 3 - Requirements in relation to records
History
Div 3 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8A heading.
Div 2 and Div 3 substituted for Div 2 by No 118 of 2007, s 3 and Sch 1 item 90, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
SECTION 202A
Requirement to make records
202A(1)
An approved provider must make a written record of information or an event of which it becomes aware if:
(a)
the provider would not otherwise have a written record of the information or event; and
(b)
the information or event relates to any of the following:
(i)
an individual's eligibility for CCS or ACCS;
(ii)
the eligibility of an approved child care service of the provider for ACCS (child wellbeing);
(iii)
the provider's compliance with the conditions for continued approval of the provider;
(iv)
any other matter prescribed by the Secretary's rules.
Offence
202A(2)
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
202A(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
History
S 202A inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 202B
Requirement to keep records
Requirement to keep records
202B(1)
An approved provider must keep records, in accordance with the Secretary's rules, of information and events in relation to the following matters:
(a)
an individual's eligibility for CCS or ACCS;
(b)
the eligibility of an approved child care service of the provider for ACCS (child wellbeing);
(c)
the provider's compliance with the conditions for continued approval of the provider;
(d)
any other matter prescribed by the Secretary's rules.
Duration of record-keeping
202B(2)
An approved provider must keep the records referred to in subsection (1) until at least:
(a)
the end of the period of 7 years starting at the end of the financial year in which the care to which the information or event relates was provided; or
(b)
the later time ordered by a court during proceedings for an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act) or for the contravention of a civil penalty provision, if an application for the order was made during:
(i)
the period referred to in paragraph (a); or
(ii)
proceedings relevant to a previous application of this paragraph.
Offence
202B(3)
A person commits an offence of strict liability if the person contravenes subsection (1) or (2).
Penalty: 60 penalty units.
Civil penalty
202B(4)
A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 50 penalty units.
History
S 202B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 202C
Requirement to keep records in relation to certification for ACCS (child wellbeing)
If a certificate is given
202C(1)
If an approved provider gives the Secretary a certificate under section 85CB of the Family Assistance Act, the provider must:
(a)
no later than 6 weeks after the day the certificate takes effect, obtain and make a record of:
(i)
evidence to support the provider's view that the child concerned is or was at risk of serious abuse or neglect; and
(ii)
evidence that the provider has given an appropriate State/Territory support agency notice in accordance with section 204K; and
(b)
keep those records for at least the period of 7 years starting at the end of the financial year in which the certificate ceases to have effect.
History
S 202C(1) amended by No 125 of 2019, s 3 and Sch 1 item 74, by substituting "appropriate State/Territory support agency" for "appropriate State/Territory body" in para (a)(ii), effective 16 December 2019.
If certificate is cancelled
202C(2)
If an approved provider:
(a)
cancels a certificate under section 85CC of the Family Assistance Act (whether or not the provider gives a replacement certificate within the meaning of that section); or
(b)
gives the Secretary a notice under section 67FC (child not at risk of serious abuse or neglect);
the provider must:
(c)
no later than 6 weeks after the day the provider cancels the certificate or gives the notice, obtain and make a record of evidence to support the provider's view that the child is not at risk of serious abuse or neglect for the period concerned; and
(d)
keep those records for at least the period of 7 years starting at the end of the financial year in which the provider cancelled the certificate or gave the notice.
Offence
202C(3)
A person commits an offence of strict liability if the person contravenes subsection (1) or (2).
Penalty: 80 penalty units.
Civil penalty
202C(4)
A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 60 penalty units.
History
S 202C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 202D
Requirement to keep Secretary informed about location of records after suspension or cancellation
Notice of location at which records are kept
202D(1)
If, with effect from a particular day (the
effective day
), the approval of a provider is:
(a)
cancelled or suspended; or
(b)
varied to remove a child care service from the approval; or
(c)
suspended in respect of a child care service;
the provider must keep the Secretary informed, in accordance with subsection (2), of the location at which the provider's records, or the provider's records for the service, are kept.
202D(2)
The provider must keep the Secretary informed by giving the Secretary written notice of the location:
(a)
no later than 14 days after the effective day; and
(b)
if the records are moved from the notified location - no later than 14 days after the move.
202D(3)
If a suspension of a provider's approval is revoked, subsection (1) ceases to apply to the provider from the day the revocation takes effect.
202D(4)
If a suspension of a provider's approval in respect of a child care service is revoked, subsection (1) ceases to apply to the provider in relation to the service from the day the revocation takes effect.
Offence
202D(5)
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
202D(6)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
History
S 202D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 4 - Requirements relating to large child care providers
History
Div 4 heading amended by No 66 of 2022, s 3 and Sch 2 item 6, by substituting "
large child care providers
" for "
large centre-based day care providers
", effective 1 July 2023.
Div 4 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8A heading.
Div 4 inserted by No 34 of 2010, s 3 and Sch 1 item 27, effective 13 April 2010.
SECTION 203A
Secretary may require financial information relating to large child care providers
Notice requiring financial information
203A(1)
The Secretary may, by written notice given in accordance with subsection (2), require a person referred to in section 203B to provide financial information in relation to the financial year in which the notice is given or any one or more of the 4 previous financial years, if:
(a)
the information is for the purposes of determining whether a large child care provider is financially viable and likely to remain so; and
(b)
the Secretary reasonably believes that the person is capable of giving the information.
Note:
Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
History
S 203A(1) amended by No 66 of 2022, s 3 and Sch 2 item 8, by substituting "large child care provider" for "large centre-based day care provider" in para (a), effective 1 July 2023.
203A(2)
A notice is given in accordance with this subsection if:
(a)
it specifies the financial information required; and
(b)
it specifies the period by which and the manner in which the person must comply with the notice.
Civil penalty for non-compliance
203A(3)
A person must comply with a notice given to the person under subsection (1).
Civil penalty: 60 penalty units.
203A(4)
Subsection (3) does not apply to a person registered under the Australian Charities and Not-for-profits Commission Act 2012 to the extent that:
(a)
the notice under subsection (1) requires the person to provide particular financial information to the Secretary; and
(b)
the person has provided, or provides, that particular financial information to the Commissioner within the meaning of that Act before the end of the period specified under paragraph (2)(b).
Disclosure of personal information
203A(5)
For the purposes of:
(a)
paragraph 6.2(b) of Australian Privacy Principle 6; and
(b)
a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;
the disclosure of personal information by a person in response to a notice given under this section is taken to be a disclosure that is authorised by this Act.
History
S 203A inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 203B
203B
Persons to whom a financial information notice may be given
The persons to whom a notice under subsection 203A(1) in relation to a large child care provider may be given are the following:
(a)
the provider;
(b)
a person who, at any time during the financial year, owns 15% or more of:
(i)
the provider; or
(ii)
if the provider consists of more than one person - any of those persons;
(c)
a person who, at any time during the financial year, is entitled to receive 15% or more of the dividends paid by:
(i)
the provider; or
(ii)
if the provider consists of more than one person - any of those persons;
(d)
a person who, at any time during the financial year, is owed a debt by the provider;
(e)
a person who:
(i)
acts, or is accustomed to act; or
(ii)
under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with:
(iii)
the provider; or
(iv)
if the provider consists of more than one person - any of those persons;
(f)
a person who directs or instructs:
(i)
the provider; or
(ii)
if the provider consists of more than one person - any of those persons;
to act in accordance with those directions or instructions;
(g)
a person, if:
(i)
the provider; or
(ii)
if the provider consists of more than one person - any of those persons;
acts, or is accustomed to act, so as to give effect to the first-mentioned person's wishes;
(h)
a person with whom:
(i)
the provider; or
(ii)
if the provider consists of more than one person - any of those persons;
acts, or is accustomed to act, in concert;
(i)
a person, if:
(i)
the provider; or
(ii)
if the provider consists of more than one person - any of those persons;
is intended or expected to act under a contract or an arrangement or understanding (whether formal or informal) so as to give effect to the first-mentioned person's directions, instructions or wishes;
(j)
a person with whom:
(i)
the provider; or
(ii)
if the provider consists of more than one person - any of those persons;
is intended or expected to act in concert under a contract or an arrangement or understanding (whether formal or informal).
History
S 203B amended by No 66 of 2022, s 3 and Sch 2 item 9, by substituting "large child care provider" for "large centre-based day care provider", effective 1 July 2023.
S 203B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 203BA
Requirement for large child care provider to report financial information
203BA(1)
A provider that is a large child care provider for a financial year must give the Secretary a report in accordance with subsection (2).
203BA(2)
A report under subsection (1) must:
(a)
be given in a form and manner approved by the Secretary; and
(b)
include financial information of a kind prescribed by the Minister's rules relating to:
(i)
a financial year; or
(ii)
if a different period is prescribed by the Minister's rules - the prescribed period; and
(c)
be given:
(i)
within 3 months after the end of the period that applies under paragraph (b); or
(ii)
if a different period for giving the report is prescribed by the Minister's rules - within the prescribed period.
Civil penalty
203BA(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 60 penalty units.
Constitutional basis - additional operation of this section
203BA(4)
In addition to section 85AB of the Family Assistance Act, this section also has the effect it would have if a reference to a large child care provider were expressly confined to a large child care provider that is a corporation to which paragraph 51(xx) of the Constitution applies.
Note:
Section 85AB of the Family Assistance Act sets out the constitutional basis of the provisions of this Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers).
History
S 203BA inserted by No 66 of 2022, s 3 and Sch 2 item 10, effective 1 July 2023.
SECTION 203C
203C
Audit of approved provider
If, on the basis of information received under section 203A or a report received under section 203BA, the Secretary has concerns about the financial viability of an approved provider, the Secretary may engage an appropriately qualified and experienced expert to carry out an independent audit of the provider.
History
S 203C amended by No 66 of 2022, s 3 and Sch 2 item 11, by inserting "or a report received under section 203BA", effective 1 July 2023.
S 203C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 203D
Report relating to an audit
203D(1)
An expert who audits a provider under section 203C must prepare and give to the Secretary a report about the affairs of the provider.
203D(2)
The expert's report must deal with the following:
(a)
whether the provider's financial statements are based on proper accounts and records;
(b)
whether the financial statements are in agreement with the accounts and records and show fairly the financial transactions and the state of the provider;
(c)
any matter specified by the expert's terms of engagement;
(d)
such other matters arising out of the financial statements as the expert considers should be reported;
(e)
any recommendations relating to maintaining or improving the financial viability of the provider that the expert considers desirable.
History
S 203D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 5 - Requirements in relation to information and reports
History
Div 5 inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204A
Requirements if approved provider stops operating an approved child care service
Notice if approved provider stops operating service
204A(1)
At least 42 days before an approved provider stops operating a child care service in respect of which the provider is approved, the provider must notify the Secretary, in a form and manner approved by the Secretary, of the provider's intention to stop operating the service.
204A(2)
Subsection (1) does not apply if the provider stops operating the service for either of the following reasons:
(a)
to avoid being in breach of a law of the Commonwealth, a State or a Territory;
(b)
due to circumstances beyond the provider's control.
204A(3)
If the provider stops operating a child care service in respect of which the provider is approved for either of the reasons in subsection (2), the provider must notify the Secretary, in a form and manner approved by the Secretary, as soon as possible.
Offence
204A(4)
A person commits an offence if the person contravenes subsection (1) or (3).
Penalty: 100 penalty units.
Civil penalty
204A(5)
A person is liable to a civil penalty if the person contravenes subsection (1) or (3).
Civil penalty: 80 penalty units.
Requirement to give further information on request
204A(6)
If:
(a)
an approved provider notifies the Secretary in accordance with subsection (1) or (3); and
(b)
the Secretary requests the provider in writing to give the Secretary specified information in relation to the provider's notice;
the provider must give the Secretary the specified information in a form and manner approved by the Secretary and by the time specified in the Secretary's request (which must be at least 14 days after the request is made).
Offence
204A(7)
A person commits an offence if the person contravenes subsection (6).
Penalty: 100 penalty units.
Civil penalty
204A(8)
A person is liable to a civil penalty if the person contravenes subsection (6).
Civil penalty: 80 penalty units.
History
S 204A substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 204A formerly read:
SECTION 204A Notifying individuals about effect on entitlement to child care benefit of actions by approved child care services
Breach of conditions by approved child care service
204A(1)
If the Secretary is satisfied that an approved child care service:
(a)
has not complied with a condition for the continued approval of the service; or
(b)
is not complying with a condition for the continued approval of the service;the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected if the Secretary were to suspend or cancel the service's approval because of the Secretary being so satisfied.
204A(2)
A notice under subsection (1) must:
(a)
state that the Secretary is satisfied that the service has not complied, or is not complying, with a condition for the continued approval of the service; and
(b)
set out the effect on that entitlement if the Secretary were to suspend or cancel the service's approval because of the Secretary being so satisfied.A notice under subsection (1) may set out any other information that the Secretary thinks relevant.
Suspension or cancellation of approved child care service's approval
204A(3)
If the Secretary suspends or cancels an approved child care service's approval, the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected because of the suspension or cancellation.
204A(4)
A notice under subsection (3) must:
(a)
state that the Secretary has suspended or cancelled the service's approval; and
(b)
set out the effect on that entitlement because of the suspension or cancellation.A notice under subsection (3) may set out any other information that the Secretary thinks relevant.
Form and manner or way of notice
204A(5)
A notice under this section must be in the form, and in the manner or way, approved by the Secretary.
History
S 204A inserted by No 118 of 2007, s 3 and Sch 3 item 25, effective 29 June 2007. No 118 of 2007, s 3 and Sch 3 item 43 contains the following application provision:
Application of item 25
(1)
Subsection 204A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, applies in relation to suspensions or cancellations that occur before or after 29 June 2007.
(2)
Subsection 204A(3) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted, applies in relation to suspensions or cancellations that occur before or after 29 June 2007.
SECTION 204B
Requirement to report about children for whom care is provided
204B(1)
An approved provider of an approved child care service must give the Secretary a report in accordance with subsection (2) for a week if:
(a)
the provider has given the Secretary an enrolment notice for a child; and
(b)
care was provided to the child by the service on a day in the week.
Note:
The provider must give enrolment notices to the Secretary relating to all children for whom care is provided, including both enrolled children (for whom complying written arrangements are made) and others for whom a relevant arrangement is made (see section 200A).
History
S 204B(1) substituted by No 125 of 2019, s 3 and Sch 1 item 75, effective 16 December 2019. S 204B(1) formerly read:
204B(1)
An approved provider of an approved child care service must give the Secretary a report in accordance with subsection (2) for each week in which a session of care is provided to a child, if:
(a)
the provider has given the Secretary an enrolment notice; and
(b)
care was provided to the child by the service on a day in the week.
Note:
The provider must give enrolment notices to the Secretary relating to all children for whom care is provided, including both enrolled children (for whom complying written arrangements are made) and others for whom a relevant arrangement is made (see section 200A).
204B(1A)
For the purposes of paragraph (1)(b), the care may be a session of care.
History
S 204B(1A) inserted by No 125 of 2019, s 3 and Sch 1 item 75, effective 16 December 2019.
204B(2)
A report is given in accordance with this subsection if:
(a)
it is given in a form and manner approved by the Secretary; and
(b)
if the child was enrolled for care on a day in the week - it includes the information required by the Secretary relevant to determining whether an individual is eligible for or entitled to be paid CCS or ACCS in relation to the session of care and, if so, the amount; and
(c)
it includes any other information prescribed by the Secretary's rules; and
(d)
it is given no later than:
(i)
14 days after the end of the week in which the session of care was provided; or
(ii)
if the week is in a period, or a series of consecutive periods, to which a payment under section 205A relates - 14 days after the end of the period, or the last such period; or
(iii)
if the enrolment notice is given under subsection 200A(2) - the day the enrolment notice is required to be given under that subsection.
History
S 204B(2) amended by No 66 of 2022, s 3 and Sch 4 item 8, by substituting "prescribed by the Secretary's rules" for "required by the Secretary" in para (c), effective 1 July 2023 and applicable in relation to a report that is required to be given under that section for a week that starts on or after 1 July 2023.
204B(3)
For the purposes of paragraphs (2)(b) and (c), and to avoid doubt, a report is not given in accordance with subsection (2) unless the information included as required by those paragraphs is accurate and complete.
Offence
204B(4)
A person commits an offence of strict liability if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).
Penalty: 70 penalty units.
Civil penalty
204B(5)
A person is liable to a civil penalty if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).
Civil penalty: 50 penalty units.
Updating and withdrawing reports
204B(6)
An approved provider may:
(a)
vary the report or substitute it with an updated report; or
(b)
if the report was not required to be given - withdraw the report;
as long as the provider does so no later than:
(c)
the earlier of the following days:
(i)
the 28th day after the start of the week to which the report relates or;
(ii)
the last day of the financial year in which the CCS fortnight to which the report relates starts; or
(d)
if the Secretary agrees to a later day - the later day agreed by the Secretary.
204B(6A)
For the purposes of subsection (6), a reference to a report includes a report that is given after the last day the report was required to be given under paragraph (2)(d).
History
S 204B(6A) inserted by No 125 of 2019, s 3 and Sch 1 item 76, effective 16 December 2019.
204B(7)
Subsection (6) does not prevent the Minister's rules under section 195E making provision for or in relation to approved providers varying, substituting or withdrawing reports given under this section.
History
S 204B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204C
Dealing with inaccurate reports
Requiring provider to withdraw report or substitute accurate report
204C(1)
If the Secretary considers that a detail contained in a report given by an approved provider under subsection 204B(1) (requirement to report about children for whom care is provided) might not be accurate, the Secretary may, by written notice given to the provider, require the provider to withdraw the report, to vary it so that it becomes accurate or substitute it with an accurate report.
204C(1A)
For the purposes of subsection (1), a report is taken to have been given by an approved provider under subsection 204B(1) even if the report is not given by the day required under paragraph 204B(2)(d).
Note:
The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).
History
S 204C(1A) inserted by No 125 of 2019, s 3 and Sch 1 item 77, effective 16 December 2019.
204C(2)
A person must comply with a notice given to the person under subsection (1), no later than:
(a)
14 days after the notice was given; or
(b)
if the notice specifies a longer period - the end of that period.
Offence
204C(3)
A person commits an offence of strict liability if the person contravenes subsection (2).
Penalty: 70 penalty units.
Civil penalty
204C(4)
A person is liable to a civil penalty if the person contravenes subsection (2).
Civil penalty: 50 penalty units.
Correction of report by Secretary
204C(5)
If the Secretary:
(a)
knows that a detail contained in a report given by an approved provider under subsection 204B(1) is not accurate; and
(b)
knows what the correct detail is; and
(c)
has (if practicable) given the provider at least 14 days written notice of the Secretary's intended correction of the report;
the Secretary may correct the report accordingly.
History
S 204C inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204D
Requirement to give information about number of child care places
Notice to give information
204D(1)
The Secretary may give an approved provider of an approved child care service a written notice requiring the provider to give the Secretary information the Secretary requires in order to determine whether to reduce the number of child care places allocated to the service.
204D(2)
The notice must specify the following:
(a)
the information the Secretary requires;
(b)
the period, or each of the periods, in relation to which the information is required;
(c)
the time by which the information in relation to the period, or each of the periods, is required.
204D(3)
The notice may specify either or both of the following:
(a)
the form and manner in which the information is to be provided to the Secretary;
(b)
the length of time for which the provider must continue to comply with the notice.
Requirement to comply with notice
204D(4)
The provider must comply with the notice in relation to the period, or each of the periods, specified in the notice.
Civil penalty
204D(5)
A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 30 penalty units.
204D(6)
The Secretary may, by written notice given to a provider, terminate the effect of a notice given to the provider under subsection (1).
History
S 204D inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204E
Requirement to give information about care provided
204E(1)
If the Secretary requires an approved provider to give the Secretary information under section 67FH (information about care provided), the provider must comply with the notice.
History
S 204E(1) amended by No 125 of 2019, s 3 and Sch 1 item 79, by substituting "information under section 67FH (information about care provided)" for "further information under section 67FH (information about children enrolled in child care)", effective 16 December 2019.
Offence
204E(2)
A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
204E(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 40 penalty units.
History
S 204E inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204F
Requirement to notify Secretary of certain matters
204F(1)
The approved provider of an approved child care service must give the Secretary written notice of a matter prescribed by the Minister's rules:
(a)
in a form and manner approved by the Secretary; and
(b)
by the time prescribed for the matter in the Minister's rules.
Offence
204F(2)
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
204F(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
History
S 204F inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204G
Requirements prescribed by Minister's rules in relation to children who are members of a prescribed class
204G(1)
The Minister's rules may impose requirements on approved providers for the purposes of monitoring or investigating whether an approved child care service of the provider:
(a)
is providing care in circumstances prescribed by the Minister's rules for the purposes of subparagraph 85BA(1)(c)(iii) of the Family Assistance Act; or
(b)
is providing care to a child who is a member of a class prescribed by the Minister's rules for the purposes of paragraph 85ED(1)(b) of the Family Assistance Act.
204G(2)
The requirements may relate to any of the following:
(a)
making and keeping records;
(b)
giving information to the Secretary;
(c)
any other matter the Minister considers appropriate for the purposes referred to in subsection (1).
204G(3)
To avoid doubt, this section is subject to subsection 85GB(3) of the Family Assistance Act.
History
S 204G inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204H
Requirements that continue after provider's approval is suspended, cancelled or varied
204H(1)
If, with effect from a particular day (the
effective day
), the approval of a provider is:
(a)
cancelled or suspended; or
(b)
varied so as to remove a child care service from the approval; or
(c)
suspended in respect of a child care service;
the provider must continue to comply with a provision specified in an item of the following table, in relation to the matters specified in that item for the provision, on and after the effective day as if the cancellation, variation or suspension had not happened.
Requirements that continue after cancellation, variation or suspension
|
Item
|
Provider must continue to comply with this provision:
|
In relation to these matters:
|
1 |
section 200A |
a child who started to be enrolled before the effective day, or for whom a relevant arrangement is entered into before the effective day |
2 |
section 200C |
a variation made before the effective day |
3 |
section 200D |
events mentioned in that section that occur before the effective day |
4 |
section 201A |
any notice given under subsection 67CE(4), whether given before, on or after the effective day |
5 |
section 201B |
sessions of care provided before the effective day, whether the notice under subsection 67CE(4) is given before, on or after the effective day |
6 |
section 201C |
sessions of care provided before the effective day |
7 |
section 201D |
any notice given under subsection 67CE(4), whether given before, on or after the effective day |
8 |
section 201E |
any notice given under subsection 106A(2) or 109B(2A), whether given before, on or after the effective day |
9 |
section 202B |
matters mentioned in subsection 202B(1) in relation to sessions of care provided before the effective day |
10 |
section 202C |
certificates given or cancelled, and notices given under section 67FC, before the effective day |
11 |
section 204B |
sessions of care provided before the effective day |
12 |
section 204C |
report given under subsection 204B(1) or that subsection as it applies because of this section |
13 |
section 204E |
notices given to the provider:
(a) before the effective day; or
(b) on or after the effective day in relation to a period before the effective day |
Note:
For item 12, a report is taken to have been given under subsection 204B(1) for the purposes of subsection 204C(1) even if the report is given late (see subsection 204C(1A)).
History
S 204H(1) amended by No 125 of 2019, s 3 and Sch 1 item 80, by inserting the note, effective 16 December 2019.
Offence
204H(2)
A person commits an offence if the person contravenes subsection (1).
Penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.
Civil penalty
204H(3)
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.
History
S 204H inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204J
204J
Collection, use or disclosure of information for financial viability purposes
The collection, use or disclosure of personal information about an individual is taken to be authorised by this Act for the purposes of the Privacy Act 1988 if the collection, use or disclosure is reasonably necessary for the purposes of determining whether a large child care provider is financially viable and likely to remain so.
History
S 204J amended by No 66 of 2022, s 3 and Sch 2 item 12, by substituting "large child care provider" for "large centre-based day care provider", effective 1 July 2023.
S 204J inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 204K
Notice to appropriate State/Territory support agency of child at risk of serious abuse or neglect
Certification for ACCS (child wellbeing)
204K(1)
An approved provider that gives the Secretary a certificate under section 85CB of the Family Assistance Act must, no later than the later of the following days, give an appropriate State/Territory body notice that the provider considers the child to whom the certificate relates is or was at risk of serious abuse or neglect:
(a)
the day that is 6 weeks after the day the certificate takes effect;
(b)
if the Secretary decides under subsection 85CB(2A) of that Act to extend for the provider the period of 28 days referred to in paragraph 85CB(2)(c) of that Act - the day that decision is made.
Note:
A certificate cannot take effect on a day more than 28 days before the certificate is given unless that period is extended by the Secretary under subsection 85CB(2A) of the Family Assistance Act.
History
S 204K(1) (not including the heading) substituted by No 26 of 2021, s 3 and Sch 1 item 31, effective 1 July 2021. S 204K(1) formerly read:
204K(1)
An approved provider that gives the Secretary a certificate under section 85CB of the Family Assistance Act must, no later than 6 weeks after the day the certificate takes effect, give an appropriate State/Territory support agency notice that the provider considers the child to whom the certificate relates is or was at risk of serious abuse or neglect.
204K(2)
Subsection (1) does not apply if:
(a)
the certificate is cancelled under section 85CC of the Family Assistance Act and a replacement certificate (within the meaning of paragraph (4)(b) of that section) is not given; or
(b)
the certificate is cancelled under section 85CD of the Family Assistance Act; or
(c)
the provider was notified of the risk by an appropriate State/Territory support agency.
Determination for ACCS (child wellbeing)
204K(3)
Before making an application for a determination under section 85CE of the Family Assistance Act, an approved provider must give an appropriate State/Territory support agency notice that the provider considers the child to whom the application relates is or was at risk of serious abuse or neglect.
204K(4)
Subsection (3) does not apply if:
(a)
the provider gave an appropriate State/Territory support agency a notice in relation to the child under subsection (1) less than 6 weeks ago; or
(b)
the provider was notified of the risk by an appropriate State/Territory support agency.
Offence
204K(5)
A person commits an offence of strict liability if the person contravenes subsection (1) or (3).
Penalty: 60 penalty units.
Civil penalty
204K(6)
A person is liable to a civil penalty if the person contravenes subsection (1) or (3).
Civil penalty: 50 penalty units.
History
S 204K(6) amended by No 84 of 2020, s 3 and Sch 1 item 8, by inserting the penalty, effective 16 December 2019.
Meaning of
appropriate State/Territory support agency
204K(7)
Any of the following is an
appropriate State/Territory support agency
for the State or Territory where care is provided to the child to whom a certificate relates:
(a)
a department or agency of the State or Territory that is responsible for dealing with matters relating to the welfare of children;
(b)
an organisation dealing with such matters on behalf of such a department or agency in accordance with an agreement between the department or agency and the organisation.
History
S 204K substituted by No 125 of 2019, s 3 and Sch 1 item 81, effective 16 December 2019. S 204K formerly read:
SECTION 204K Notice to State/Territory body of child at risk of serious abuse or neglect
Certification for ACCS (child wellbeing)
204K(1)
An approved provider that gives the Secretary a certificate under section 85CB of the Family Assistance Act must, no later than 6 weeks after the day the certificate takes effect, give an appropriate State/Territory body notice that the provider considers the child to whom the certificate relates is or was at risk of serious abuse or neglect.
204K(2)
Subsection (1) does not apply if:
(a)
the certificate is cancelled under section 85CC of the Family Assistance Act and a replacement certificate (within the meaning of paragraph (4)(b) of that section) is not given; or
(b)
the certificate is cancelled under section 85CD of the Family Assistance Act; or
(c)
the provider was notified of the risk by an appropriate State/Territory body.
Determination for ACCS (child wellbeing)
204K(3)
Before making an application for a determination under section 85CE of the Family Assistance Act, an approved provider must give an appropriate State/Territory body notice that the provider considers the child to whom the application relates is or was at risk of serious abuse or neglect.
204K(4)
Subsection (3) does not apply if:
(a)
the provider gave an appropriate State/Territory body a notice in relation to the child under subsection (1) less than 6 weeks ago; or
(b)
the provider was notified of the risk by an appropriate State/Territory body.
Offence
204K(5)
A person commits an offence of strict liability if the person contravenes subsection (1) or (3).
Penalty: 60 penalty units.
Civil penalty
204K(6)
A person is liable to a civil penalty if the person contravenes subsection (1) or (3).
Civil penalty: 50 penalty units.
Meaning of
appropriate State/Territory body
204K(7)
Any of the following is an
appropriate State/Territory body
for the State or Territory where care is provided to the child to whom a certificate relates:
(a)
a department or agency of the State or Territory that is responsible for dealing with matters relating to the welfare of children;
(b)
an organisation dealing with such matters on behalf of such a department or agency in accordance with an agreement between the department or agency and the organisation.
S 204K inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 6 - Business continuity payments
History
Div 6 inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 205A
Business continuity payments - reports not given
205A(1)
The Secretary may determine that a payment is to be made to an approved provider in relation to a period if all of the following apply:
(a)
the provider is required to give a report under subsection 204B(1) (requirement to report about children for whom care is provided) for a week in respect of one or more enrolments;
(b)
the provider does not give the report for the week by the time required for that report under section 204B;
(c)
the Secretary is satisfied that the failure to give the report is due to circumstances prescribed by the Minister's rules.
Note:
Section 205B deals with the setting off of payments made under this section.
205A(2)
The Minister's rules:
(a)
must prescribe a method of determining the amounts of payments under this section; and
(b)
may prescribe any other matters relating to the making of payments under this section.
205A(3)
The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved provider.
205A(4)
The Secretary must give the approved provider written notice of the payment and of the period to which the payment relates.
History
S 205A inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 205B
Setting off business continuity payments made under section 205A
205B(1)
This section applies if a payment is made under section 205A to an approved provider in respect of the enrolment of a child for care by an approved child care service (the
first service
) of the provider.
205B(2)
The Secretary must set off an amount equal to the payment against one or more child care service payments that are to be made in respect of an enrolment of a child for care:
(a)
by the first service; or
(b)
by any other approved child care service of the provider.
Note:
For
child care service payment
see subsection 3(1).
History
S 205B inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 205C
Business continuity payments - emergency or disaster
205C(1)
The Secretary may determine that a payment is to be made to an approved provider in relation to a period if the Secretary is satisfied that:
(a)
an approved child care service of the provider has been adversely affected by an emergency or disaster; and
(b)
the adverse effect on the service has, or is likely to have, a material adverse financial effect on the provider; and
(c)
the provider and the service meet the eligibility criteria (if any) specified in the Minister's rules; and
(d)
the period is prescribed by the Minister's rules; and
(e)
the amount of the payment is:
(i)
prescribed by the Minister's rules; or
(ii)
determined by a method prescribed by the Minister's rules.
205C(2)
An
emergency or disaster
is:
(a)
an emergency or disaster prescribed by the Minister's rules for the purposes of this paragraph; or
(b)
a major disaster (within the meaning of the Social Security Act 1991); or
(c)
a Part 2.23B major disaster (within the meaning of the Social Security Act 1991).
205C(3)
The Minister's rules may prescribe any other matters relating to the making of payments under this section.
205C(4)
The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved provider.
205C(5)
The Secretary must give the approved provider written notice of the payment and of the period to which the payment relates.
History
S 205C inserted by No 26 of 2021, s 3 and Sch 1 item 17, effective 27 March 2021. No 26 of 2021, s 3 and Sch 1 items 33-39 contains the following application provisions:
PART 6 - ARRANGEMENTS RELATING TO CORONAVIRUS RESPONSE MEASURES
33 Definitions
33
In this Part:
Family Assistance Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
relevant period
means the period beginning on 6 April 2020 and ending on 12 July 2020.
34 Relevant period not included in determining cessation of enrolment
34
Subparagraph 200B(1)(b)(iii) of the Family Assistance Administration Act applies as if the period of 14 weeks mentioned in that subparagraph did not include a week that occurred in the relevant period.
35 No requirement to report provision of care to children during relevant period
(1)
An approved provider is not required under section 204B of the Family Assistance Administration Act to give a report for a week if the week occurred in the relevant period.
(2)
However, for the purposes of the operation of subsection 205A(1) of the Family Assistance Administration Act, the approved provider is taken to have been required to give the report.
36 Recovery of business continuity payments during relevant period
(1)
This item applies in relation to an amount paid under section 205A of the Family Assistance Administration Act to an approved provider in relation to a period that occurred in the relevant period.
(2)
The Minister may, by legislative instrument, make rules determining circumstances in which the whole or part of the amount is taken to be a debt due to the Commonwealth by the provider under Part 4 of the Family Assistance Administration Act.
(3)
Subitem (2) applies despite section 70 of the Family Assistance Administration Act.
37 No set-off of business continuity payments during relevant period
37
Section 205B of the Family Assistance Administration Act does not apply in relation to a payment made under section 205A of that Act to an approved provider if the payment was made in relation to a period that occurred in the relevant period.
38 Certain Minister's rules taken to be valid
38
The following, as in force at the commencement of this Schedule, are for all purposes taken to be, and always to have been, valid exercises of the power to make Minister's rules under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999:
(a)
paragraphs 8(1)(h) and (i) of the Child Care Subsidy Minister's Rules 2017;
(b)
section 47AA of the Child Care Subsidy Minister's Rules 2017.
39 Compensation for acquisition of property
(1)
If the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2)
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:
(a)
the Federal Court of Australia; or
(b)
the Supreme Court of a State or Territory;
for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
PART 8B - NOMINEES
History
Part 8B inserted by No 95 of 2002, s 3 and Sch 2 item 12, effective 1 July 2003.
Division 1 - Preliminary
SECTION 219TA
219TA
Definitions
In this Part:
correspondence nominee
means a person who, by virtue of an appointment in force under section 219TC, is the correspondence nominee of another person.
nominee
means a correspondence nominee or a payment nominee.
payment nominee
means a person who, by virtue of an appointment in force under section 219TB, is the payment nominee of another person.
principal
, in relation to a nominee, means the person in relation to whom the nominee was appointed.
relevant benefit
means:
(a)
family tax benefit by instalment; or
(b)
family tax benefit for a past period; or
(c)
family tax benefit by single payment/in substitution because of the death of another individual; or
(caa)
family tax benefit under section 58AA of the Family Assistance Act; or
(ca)
(Repealed by No 96 of 2014)
(d)
stillborn baby payment; or
(e)
(Repealed by No 49 of 2012)
(f)
CCS by fee reduction; or
(g)
ACCS by fee reduction; or
(h)
CCS or ACCS in substitution for an individual who has died; or
(ha)
(Repealed by No 22 of 2017)
(hb)
single income family supplement; or
(i)
one-off payment to families; or
(j)
economic security strategy payment to families; or
(k)
back to school bonus or single income family bonus; or
(l)
clean energy advance; or
(m)
ETR payment; or
(n)
2020 economic support payment; or
(o)
additional economic support payment 2020; or
(p)
additional economic support payment 2021.
History
Definition of "relevant benefit" amended by No 97 of 2020, s 3 and Sch 1 item 11, by inserting para (o) and (p), effective 14 November 2020.
Definition of "relevant benefit" amended by No 22 of 2020, s 3 and Sch 4 item 11, by inserting para (n), effective 25 March 2020.
Definition of "relevant benefit" amended by No 22 of 2017, s 3 and Sch 1 item 206, by substituting para (f) to (h) for para (f) to (ha), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Para (f) to (ha) formerly read:
(f)
child care benefit by fee reduction; or
(g)
child care benefit for a past period; or
(h)
child care benefit by single payment/in substitution; or
(ha)
child care rebate; or
Definition of "relevant benefit" amended by No 96 of 2014, s 3 and Sch 9 item 19, by repealing para (ca), effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. Para (ca) formerly read:
(ca)
schoolkids bonus; or
Definition of "relevant benefit" amended by No 70 of 2013, s 3 and Sch 2A items 15 and 44, by inserting para (caa) after para (c) and substituting para (d), effective 1 March 2014. For application and transitional provisions, see note under Pt 3 Div 3 heading. Para (d) formerly read:
(d)
baby bonus; or
Definition of "relevant benefit" amended by No 49 of 2012, s 3 and Sch 1 item 45, by repealing para (e), effective 1 July 2012. For transitional and application provisions see note under s 107(3C).
Para (e) formerly read:
(e)
maternity immunisation allowance; or
Definition of "relevant benefit" amended by No 50 of 2012, s 3 and Sch 1 item 13, and Sch 2 item 17, by inserting para (ca) and (m), effective 27 May 2012.
Definition of "relevant benefit" amended by No 141 of 2011, s 3 and Sch 8 item 16, by inserting para (hb), applicable in relation to the 2012-13 income year and later income years.
Definition of "relevant benefit" amended by No 141 of 2011, s 3 and Sch 2 item 14, by inserting para (l), effective 14 May 2012.
Definition of "relevant benefit" amended by No 50 of 2009, s 3 and Sch 1 item 37, by substituting "child care rebate" for "child care tax rebate" in para (ha), effective 24 June 2009.
Definition of "relevant benefit" amended by No 4 of 2009, s 3 and Sch 3 item 14, by inserting para (k), effective 18 February 2009.
Definition of "relevant benefit" amended by No 131 of 2008, s 3 and Sch 3 item 15, by inserting para (j) at the end, effective 1 December 2008.
Definition of "relevant benefit" amended by No 113 of 2007, s 3 and Sch 1 item 18, by inserting para (ha), effective 1 July 2007.
Definition of "relevant benefit" amended by No 82 of 2007, s 3 and Sch 6 item 36, by substituting "baby bonus" for "maternity payment, applicable to claims for payment of baby bonus made on or after 1 July 2007. If:
(a) a claim for payment of maternity payment is made before 1 July 2007; and
(b) the Secretary has not determined the claim by that time;
the claim is taken to be a claim for payment of baby bonus.
Definition of "relevant benefit" amended by No 60 of 2004, s 3 and Sch 1 item 13, by inserting para (i) at the end, effective 26 May 2004.
S 219TA amended by No 59 of 2004, s 3 and Sch 2 item 32, by substituting "maternity payment" for "maternity allowance" in para (d), effective 1 July 2004. No 59 of 2004, s 3 and Sch 2 item 33, contains the following saving provision:
Saving provision for maternity allowance payments
33
Despite the amendment of section 219TA of the A New Tax System (Family Assistance) (Administration) Act 1999, Part 8B of that Act (which includes that section) applies in relation to payments of maternity allowance made before, on or after commencement as if the amendment had not been made.
S 219TA inserted by No 95 of 2002, s 3 and Sch 2 item 12, effective 1 July 2003.
Division 2 - Appointment of nominees
SECTION 219TB
219TB
Appointment of payment nominee
Subject to section 219TD, 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 the family assistance law; and
(b)
direct that the whole or a specified part of a specified relevant benefit payable to the nominee's principal be paid to the nominee.
History
S 219TB inserted by 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TC
219TC
Appointment of correspondence nominee
Subject to section 219TD, the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the family assistance law.
History
S 219TC inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TD
Provisions relating to appointments
219TD(1)
A person may be appointed as the payment nominee and the correspondence nominee of the same person.
219TD(2)
The Secretary must not appoint a nominee for a person (the
proposed principal
) under section 219TB or 219TC 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.
219TD(3)
The Secretary must cause a copy of an appointment under section 219TB or 219TC to be given to:
(a)
the nominee; and
(b)
the principal.
219TD(4)
The Secretary must not appoint a payment nominee or correspondence nominee for an approved provider.
History
S 219TD(4) amended by No 22 of 2017, s 3 and Sch 1 item 207, by substituting "an approved provider" for "an approved child care service or for the operator of such a service", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 219TD inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TE
SUSPENSION AND CANCELLATION OF NOMINEE APPOINTMENTS
219TE(1)
If a person who is a nominee by virtue of an appointment under section 219TBor 219TC 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.
219TE(1A)
(Repealed by No 50 of 2011)
History
S 219TE(1A) repealed by No 50 of 2011, s 3 and Sch 5 item 1, effective 28 June 2011. S 219TE(1A) formerly read:
219TE(1A)
If a person who is a nominee by virtue of an appointment under section 219TB becomes subject to the income management regime under section 123UC of the Social Security (Administration) Act 1999, the Secretary must, as soon as practicable, cancel the appointment.
S 219TE(1A) inserted by No 130 of 2007, s 3 and Sch 1 item 2, effective 18 August 2007.
219TE(2)
If:
(a)
the Secretary gives a person who is a nominee a notice under section 219TJ; and
(b)
the person informs the Department that:
(i)
an event or change of circumstances has occurred or is likely to occur; and
(ii)
the event or change of circumstances is likely to have an effect referred to in paragraph 219TJ(1)(b);
the
Secretary may suspend or cancel the appointment by virtue of which the person is a nominee.
219TE(3)
If:
(a)
the Secretary gives a person who is a nominee a notice under section 219TJ or 219TK; and
(b)
the nominee does not comply with the requirement of the notice; the Secretary may suspend or cancel the appointment, or each appointment, by virtue of which the person is a nominee.
219TE(4)
While an appointment is suspended, the appointment has no effect for the purposes of the family assistance law.
219TE(5)
The Secretary may, at any time, cancel the suspension of an appointment under subsection (2) or (3).
219TE(6)
The suspension or cancellation of an appointment, and the cancellation of such a suspension, must be in writing.
219TE(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.
219TE(8)
The Secretary must cause a copy of:
(a)
a suspension of an appointment; or
(b)
a cancellation of an appointment; or
(c)
a cancellation of a suspension of an appointment;
to be given to:
(d)
the nominee; and
(e)
the principal.
History
S 219TE inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
Division 3 - Payments to payment nominee
SECTION 219TF
Payment of amounts to payment nominee
219TF(1)
If:
(a)
a person has a payment nominee; and
(b)
the whole or a part of a relevant benefit is payable to the person; and
(c)
the Secretary has given a direction in relation to the relevant benefit under section 219TB;
the relevant benefit is to be paid in accordance with the direction.
219TF(2)
An amount 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 the family assistance law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.
219TF(3)
An amount 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.
219TF(4)
The Secretary may direct that the whole or a part of an amount 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 amount to which the direction relates is to be paid in accordance with the direction.
History
S 219TF inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
Division 4 - Functions and responsibilities of nominees
SECTION 219TG
Actions of correspondence nominee on behalf of principal
219TG(1)
Subject to section 219TR and subsection (4), any act that may be done by a person under, or for the purposes of, the family assistance law (other than an act for the purposes of Division 2 or 3) may be done by the person's correspondence nominee.
219TG(2)
Without limiting subsection (1), an application or claim that may be made under the family assistance law 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.
219TG(3)
An act done by a person's correspondence nominee under this section has effect, for the purposes of the family assistance law (other than this Part), as if it had been done by the person.
219TG(4)
If, under a provision of the family assistance law, 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.
History
S 219TG inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TH
Giving of notices to correspondence nominee
219TH(1)
Any notice that the Secretary is authorised or required by the family assistance law to give to a person may be given by the Secretary to the person's correspondence nominee.
219TH(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 in any other manner approved by the Secretary.
219TH(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 the family assistance law as the nominee notice; and
(ii)
makes the same requirement of the person as the nominee notice;
section 219TI ceases to have effect in relation to the nominee notice.
219TH(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 the family assistance law as the nominee notice; and
(ii)
makes the same requirement of the person as the nominee notice;
section
219TI does not have effect in relation to the nominee notice.
History
S 219TH inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TI
Compliance by correspondence nominee
219TI(1)
In this section:
requirement
means 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.
219TI(2)
If, under section 219TH, a notice making a requirement of a person is given to the person's correspondence nominee, the following paragraphs have effect:
(a)
for the purposes of the family assistance law, 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 requirement made of the person may be satisfied by the correspondence nominee;
(c)
any act done by the correspondence nominee for the purpose of satisfying a requirement of the notice has effect, for the purposes of the family assistance law (other than Division 3 of Part 6 of this Act), as if it had been done by the person;
(d)
if the correspondence nominee fails to satisfy a requirement of the notice, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement.
219TI(3)
In order to avoid doubt, it is declared as follows:
(a)
if the 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 the correspondence nominee informs the Secretary of the matter, or gives the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;
(b)
if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee gives the information, or produces the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;
(c)
if the requirement imposes on the person an obligation to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and 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, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice;
(d)
if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee does not give the information, or produce the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice.
History
S 219TI inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
219TJ
Notification by nominee 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 occurs; or
(ii)
the nominee becomes aware that an event or change of circumstances is likely to occur; 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)
Subject to subsection (3), 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 merely because it fails to comply with paragraph (2)(c).
(4)
Subject to subsection (5), 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 occurs; or
(b)
the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.
(5)
If a notice requires the nominee to inform the Department of any proposal by the nominee to leave Australia, subsection (4) does not apply to that requirement.
(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.
History
S 219TJ inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
219TK
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 amount paid to the nominee on behalf of the person.
(2)
Subject to subsection (3), 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 merely because it fails to comply with paragraph (2)(c).
(4)
The period specified under paragraph (2)(d) must not end earlier than 14 days after the day on which 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 nominee must not refuse or fail to comply with a notice under subsection (1).
Penalty: 60 penalty units.
(7)
Subsection (6) applies only to the extent to which the person is capable of complying with the notice.
(8)
Subsection (6) does not apply if the person has a reasonable excuse.
(9)
An offence against subsection (6) is an offence of strict liability.
(10)
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.
History
S 219TK inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
Division 5 - Other matters
219TL
219TL
Protection of person against liability for actions of nominee
Nothing in this Part has the effect of rendering a person guilty of an offence against this Act in respect of any act or omission of the person's correspondence nominee.
History
S 219TL inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
219TM
Protection of nominee against criminal liability
(1)
A nominee of a person is not subject to any criminal liability under the family assistance law in respect of:
(a)
any act or omission of the person; 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 219TK.
History
S 219TM inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
219TN
Duty of nominee to principal
(1)
It is the duty of a person who is the payment or correspondence nominee of another person 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, there are reasonable grounds for believing 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, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.
History
S 219TN inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
219TO
219TO
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.
History
S 219TO inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TP
219TP
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 the family assistance law to give notices to, or make requirements of, a person who has a nominee.
History
S 219TP inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TQ
219TQ
Notification of nominee where notice given to principal
If, under a provision of the family assistance law (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.
History
S 219TQ inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
SECTION 219TR
Right of nominee to attend with principal
219TR(1)
If:
(a)
under a provision of the family assistance law (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.
219TR(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.
History
S 219TR inserted by No 95 of 2002, s 3 Sch 2 item 12, effective 1 July 2003.
PART 8C - REGULATORY POWERS
History
Pt 8C substituted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Pt 8C formerly read:
Division 1 - Civil penalty orders
History
Div 1 inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSA
SECTION 219TSA Definitions
219TSA
(Repealed by No 53 of 2008)
History
S 219TSA repealed by No 53 of 2008, s 3 and Sch 4 item 73, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219TSA formerly read:
SECTION 219TSA Definitions
219TSA
In this Division:
civil penalty order
means an order under subsection 219TSC(1).
penalty unit
has the meaning given by section 4AA of the Crimes Act 1914.
S 219TSA inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSB
SECTION 219TSB Ancillary contravention of civil penalty provision
219TSB
A person must not:
(a)
attempt to contravene a civil penalty provision (other than this subsection); or
(b)
aid, abet, counsel or procure a contravention of a civil penalty provision (other than this subsection); or
(c)
induce, whether by threats or promises or otherwise, a contravention of a civil penalty provision (other than this subsection); or
(d)
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision (other than this subsection); or
(e)
conspire with others to effect a contravention of a civil penalty provision (other than this subsection).
Note:
This is a civil penalty provision. This Part provides for pecuniary penalties for breaches of civil penalty provisions.
History
S 219TSB(1) amended by No 53, s 3 and Sch 4 item 75, by inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where conduct means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219TSB(2)
(Repealed by No 53 of 2008)
History
S 219TSB(2) repealed by No 53 of 2008, s 3 and Sch 4 items 74 and 76, applicable in relation to conduct happening wholly after 26 June 2008, whereconduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219TSB(2) formerly read:
219TSB(2)
Subsection (1) is a
civil penalty provision
.
S 219TSB inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSC Civil penalty orders
219TSC(1)
If the Federal Court of Australia or the Federal Circuit Court of Australia is satisfied that a person has contravened a civil penalty provision, the court may, on the application of the Minister, order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the court determines to be appropriate.
Note:
These proceedings before the court do not limit, nor are they affected by, other compliance measures in this Act (for example, sanctions under section 200.
History
S 219TSC(1) amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court", effective 12 April 2013.
S 219TSC(1) amended by No 53 of 2008, s 3 and Sch 4 item 77, by inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
219TSC(2)
An order under subsection (1) is to be known as a
civil penalty order
.
Determining pecuniary penalty
219TSC(3)
In determining the pecuniary penalty, the court must have regard to all relevant matters, including:
(a)
the nature and extent of the contravention; and
(b)
the nature and extent of any loss or damage suffered as a result 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:
(i)
the person; and
(ii)
if the person is an approved child care service - the continued operation of the service.
History
S 219TSC(3) amended by No 53 of 2008, s 3 and Sch 4 item 78, by inserting para (e) at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Civil enforcement of penalty
219TSC(4)
The pecuniary penalty is a civil debt payable to the Commonwealth.
219TSC(5)
The Commonwealth may enforce the order under subsection (1) 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.
Note:
If a civil penalty order is made in relation to a person who operates an approved child care service, the Secretary may be able to take further action against the service under section 200.
S 219TSC inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSD Maximum penalties for contravention of civil penalty provisions
General rule
219TSD(1)
The pecuniary penalty payable by a person, in respect of the person's contravention of a civil penalty provision, must not exceed:
(a)
if the person is not a body corporate - 200 penalty units; or
(b)
if the person is a body corporate - 400 penalty units.
Exception for certain civil penalty provisions
219TSD(2)
Subsection (1) does not apply to subsection 219L(3) or to a provision of the regulations declared to be a civil penalty provision. The pecuniary penalty payable by a person, in respect of the person's contravention of subsection 219L(3), must not exceed:
(a)
if the person is not a body corporate - 30 penalty units; or
(b)
if the person is a body corporate - 60 penalty units.
Note:
The penalties for contraventions of provisions of the regulations declared to be civil penalty provisions must not exceed 250 penalty units for bodies corporate and 50 penalty units for other persons (see subsection 235(1A)).
History
S 219TSD(2) amended by No 50 of 2009, s 3 and Sch 4 item 12, by substituting "subsection 219L(3)" for "subsection 219EA(2) or 219L(3)" (twice occurring), effective 24 December 2009.
S 219TSD(2) substituted by No 50 of 2009, s 3 and Sch 4 item 2, effective 25 June 2009. S 219TSD(2) formerly read:
Exception for certain civil penalty provisions
219TSD(2)
Subsection (1) does not apply to subsection 219EA(2) or 219L(3). The pecuniary penalty payable by a person, in respect of the person's contravention of either of these civil penalty provisions, must not exceed:
(a)
if the person is not a body corporate - 30 penalty units; or
(b)
if the person is a body corporate - 60 penalty units.
History
S 219TSD substituted by No 53 of 2008, s 3 and Sch 4 item 79, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). S 219TSD formerly read:
SECTION 219TSD Maximum penalties for contravention of civil penalty provisions
219TSD
The pecuniary penalty payable under subsection 219TSC(1) by a person in respect of a contravention of a civil penalty provision is not to exceed:
(a)
for a contravention by a body corporate - 60 penalty units; and
(b)
for a contravention by a person other than a body corporate - 30 penalty units.
S 219TSD inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSE
SECTION 219TSE Proceedings may be heard together
219TSE
The Federal Court of Australia or the Federal Circuit Court of Australia may direct that 2 or more proceedings for civil penalty orders are to be heard together.
History
S 219TSE amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court", effective 12 April 2013.
S 219TSE inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSF
SECTION 219TSF Time limit for application for an order
219TSF
Proceedings for a civil penalty order may be started no later than 4 years after the contravention.
S 219TSF inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSG
SECTION 219TSG Civil evidence and procedure rules for civil penalty orders
219TSG
The Federal Court of Australia or the Federal Circuit Court of Australia must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
History
S 219TSG amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court", effective 12 April 2013.
S 219TSG inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSGA Conduct contravening more than one civil penalty provision
219TSGA(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.
219TSGA(2)
However, the person is not liable to more than one pecuniary penalty under this Act in respect of the same conduct.
Note:
This subsection does not prevent other compliance measures under this Act (for example, sanctions under section 200) from being imposed in respect of the same conduct.
History
S 219TSGA inserted by No 53 of 2008, s 3 and Sch 4 item 80, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
SECTION 219TSGB
SECTION 219TSGB Civil proceedings after criminal proceedings
219TSGB
Neither the Federal Court of Australia nor the Federal Circuit Court of Australia 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.
History
S 219TSGB amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court", effective 12 April 2013.
S 219TSGB inserted by No 53 of 2008, s 3 and Sch 4 item 80, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
SECTION 219TSGC Criminal proceedings during civil proceedings
219TSGC(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 started or have already been started 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.
219TSGC(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.
History
S 219TSGC inserted by No 53 of 2008, s 3 and Sch 4 item 80, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
SECTION 219TSGD
SECTION 219TSGD Criminal proceedings after civil proceedings
219TSGD
Criminal proceedings may be started 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.
History
S 219TSGD inserted by No 53 of 2008, s 3 and Sch 4 item 80, applicable in relation to conduct happening wholly after 26 June 2008, where conduct means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
SECTION 219TSGE
SECTION 219TSGE Evidence given in proceedings for penalty not admissible in criminal proceedings
219TSGE
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:
(a)
the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual 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.However, this does not apply to criminal proceedings in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
History
S 219TSGE inserted by No 53 of 2008, s 3 and Sch 4 item 80, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
SECTION 219TSGF Minister requiring person to assist in applications for civil penalty orders
219TSGF(1)
A person commits an offence if:
(a)
the Minister 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, document or other things.
219TSGF(2)
A request under subsection (1) is not a legislative instrument.
219TSGF(3)
The Minister can request a person to assist under subsection (1) if, and only if:
(a)
it appears to the Minister 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 Minister suspects or believes that the person can give information relevant to the application.
219TSGF(4)
The Minister 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.
219TSGF(5)
The Federal Court of Australia or the Federal Circuit Court of Australia may order a person to comply with a request under subsection (1) in a specified way. Only the Minister may apply to the court for an order under this subsection.
History
S 219TSGF(5) amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court", effective 12 April 2013.
219TSGF(6)
For the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made.
History
S 219TSGF inserted by No 53 of 2008, s 3 and Sch 4 item 80, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
Division 2 - Infringement notices
History
Div 2 inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSH
SECTION 219TSH Definitions
219TSH
In this Division:
authorised person
means:
(a)
the Secretary; or
(b)
an officer appointed under section 219TSO.
civil contravention
means a contravention of a civil penalty provision.
infringement notice
means an infringement notice under section 219TSI.
penalty unit
(Repealed by No 53 of 2008)
History
Definition of "penalty unit" repealed by No 53 of 2008, s 3 and Sch 4 item 81, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The definition formerly read:
penalty unit
has the meaning given by section 4AA of the Crimes Act 1914.
History
S 219TSH inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSI When an infringement notice can be given
219TSI(1)
If an authorised person has reasonable grounds to believe that a person has, on a particular day, committed one or more contraventions of a particular civil penalty provision, the authorised person may give to the person an infringement notice relating to those contraventions.
219TSI(2)
An infringement notice must be given within 12 months after the day on which the civil contraventions are alleged to have taken place.
History
S 219TSI inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSJ Matters to be included in an infringement notice
219TSJ(1)
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 approved child care service concerned; and
(c)
set out the name of the authorised person who gave the notice; and
(d)
set out brief details of each of the alleged civil contraventions; and
(e)
contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court of Australia or the Federal Circuit Court of Australia 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
(f)
give an explanation of how payment of the penalty is to be made; and
(g)
set out such other matters (if any) as are specified by the regulations.
History
S 219TSJ(1) amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" in para (e), effective 12 April 2013.
219TSJ(2)
For the purposes of paragraph (1)(d), the brief details must include the following information in relation to each alleged civil contravention:
(a)
the date of the alleged contravention;
(b)
the civil penalty provision that was allegedly contravened.
History
S 219TSJ inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSK Amount of penalty
Infringement notice given to a body corporate
219TSK(1)
The penalty to be specified in an infringement notice given to a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:
Number of penalty units
|
Item
|
In this case ...
|
the number of penalty units is ...
|
1 |
The notice relates to a single alleged contravention of a civil penalty provision (other than a provision mentioned in item 3, 5 or 7) |
30. |
. |
2 |
The notice relates to more than 1 alleged contravention of a civil penalty provision (other than a provision mentioned in item 3, 5 or 7) |
the number obtained by multiplying 30 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
. |
3 |
The notice relates to a single alleged contravention of subsection 219L(3) |
4. |
. |
4 |
The notice relates to more than 1 alleged contravention of subsection 219L(3) |
the number obtained by multiplying 4 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
. |
5 | The notice relates to a single alleged contravention of subsection 219M(1) or (4) |
80. |
. |
6 |
The notice relates to more than 1 alleged contravention of subsection 219M(1) or (4)) |
the number obtained by multiplying 80 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
7 |
The notice relates to a single alleged contravention of a civil penalty provision that is a provision of the regulations |
24. |
8 |
The notice relates to more than 1 alleged contravention of a civil penalty provision that is a provision of the regulations |
the number obtained by multiplying 24 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
History
S 219TSK(1) amended by No 50 of 2009, s 3 and Sch 4 item 13, by substituting "subsection 219L(3)" for "subsection 219EA(2) or 219L(3)" in table items 3 and 4, effective 24 December 2009.
S 219TSK(1) amended by No 50 of 2009, s 3 and Sch 5 item 17, by inserting "or (4)" after "219M(1)" in table items 5 and 6, applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009.
S 219TSK(1) amended by No 50 of 2009, s 3 and Sch 4 items 3 and 4, by substituting "a provision mentioned in item 3, 5 or 7" for "subsection 219EA(2), 219L(3) or 219M(1)" in table items 1 and 2, and inserting table items 7 and 8, effective 25 June 2009.
S 219TSK(1) amended by No 53 of 2008, s 3 and Sch 4 item 82, by substituting the table, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The table formerly read:
Number of penalty units
|
Item
|
In this case ...
|
the number of penalty units is ...
|
1 |
The notice relates to a single alleged contravention of a civil penalty provision |
4. |
. |
2 |
The notice relates to more than 1 alleged contravention of a civil penalty provision |
the number obtained by multiplying 4 by the number of alleged contraventions. |
Infringement notice given to a person other than a body corporate
219TSK(2)
The penalty to be specified in an infringement notice given to a person other than a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:
Number of penalty units
|
Item
|
In this case ...
|
the number of penalty units is ...
|
1 |
The notice relates to a single alleged contravention of a civil penalty provision (other than a provision mentioned in item 3, 5 or 7) |
15. |
. |
2 |
The notice relates to more than 1 alleged contravention of a civil penalty provision (other than a provision mentioned in item 3, 5 or 7) |
the number obtained by multiplying 15 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
. |
3 |
The notice relates to a single alleged contravention of subsection 219L(3) |
2. |
. |
4 |
The notice relates to more than 1 alleged contravention of subsection 219L(3) |
the number obtained by multiplying 2 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
. |
5 |
The notice relates to a single alleged contravention of subsection 219M(1) or (4) |
40. |
. |
6 |
The notice relates to more than 1 alleged contravention of subsection 219M(1) or (4) |
the number obtained by multiplying 40 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
7 |
The notice relates to a single alleged contravention of a civil penalty provision that is a provision of the regulations |
12. |
8 |
The notice relates to more than 1 alleged contravention of a civil penalty provision that is a provision of the regulations |
the number obtained by multiplying 12 by:
(a) if the number of alleged contraventions is less than 8 - that number; or
(b) otherwise - 8. |
History
S 219TSK(2) amended by No 50 of 2009, s 3 and Sch 4 item 14, by substituting "subsection 219L(3)" for "subsection 219EA(2) or 219L(3)" in table items 3 and 4, effective 24 December 2009.
S 219TSK(2) amended by No 50 of 2009, s 3 and Sch 5 item 18, by inserting "or (4)" after "219M(1)" in table items 5 and 6, applicable in relation to notices given under subsection 219M(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 after 22 July 2009.
S 219TSK(2) amended by No 50 of 2009, s 3 and Sch 4 items 5 and 6, by substituting "a provision mentioned in item 3, 5 or 7" for "subsection 219EA(2), 219L(3) or 219M(1)" in table items 1 and 2 and inserting items 7 and 8 at the end of the table, effective 25 June 2009.
S 219TSK(2) amended by No 53 of 2008, s 3 and Sch 4 item 83, by repealing the table, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The table formerly read:
Number of penalty units
|
Item
|
In this case ...
|
the number of penalty units is ...
|
1 |
The notice relates to a single alleged contravention of a civil penalty provision |
2. |
. |
2 |
The notice relates to more than 1 alleged contravention of a civil penalty provision |
the number obtained by multiplying 2 by the number of alleged contraventions. |
History
S 219TSK inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSL Withdrawal of an infringement notice
219TSL(1)
This section applies if an infringement notice is given to a person.
219TSL(2)
An authorised person may, by written notice (the
withdrawal notice
) given to the person, withdraw the infringement notice.
219TSL(3)
To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.
Refund of penalty if infringement notice withdrawn
219TSL(4)
If:
(a)
the penalty specified in the infringement notice is paid; and
(b)
the infringement notice is withdrawn after the penalty is paid;the Commonwealth is liable to refund the penalty.
History
S 219TSL inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSM What happens if the penalty is paid
219TSM(1)
This section applies if:
(a)
an infringement notice relating to one or more alleged civil contraventions is given to a person; and
(b)
the penalty is paid in accordance with the infringement notice; and
(c)
the infringement notice is not withdrawn.
219TSM(2)
Any liability of the person for the alleged civil contraventions is discharged.
219TSM(3)
Proceedings under Division 1 must not be brought against the person for the alleged civil contraventions.
History
S 219TSM inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSN Effect of this Division on civil proceedings
219TSN
This Division does not:
(a)
require an infringement notice to be given in relation to an alleged civil contravention; or
(b)
affect the liability of a person to have proceedings under Division 1 brought against the person for an alleged civil contravention 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 subsequently withdrawn; or
(c)
limit the discretion of the Federal Court of Australia or the Federal Circuit Court of Australia to determine the amount of a penalty to be imposed on a person who is found in proceedings under Division 1 to have contravened a civil penalty provision.
Note:
This Division also does not limit, nor is it affected by, other compliance measures in this Act (for example, sanctions under section 200).
History
S 219TSN amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" in para (c), effective 12 April 2013.
S 219TSN amended by No 53 of 2008, s 3 and Sch 4 item 84, by inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
S 219TSN inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSO Appointment of authorised person
219TSO
The Secretary may, by writing, appoint an officer of the Department as an authorised person for the purposes of this Division.
S 219TSO inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSP Regulations
219TSP
The regulations may make further provision in relation to infringement notices.
History
S 219TSP inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
Division 3 - Suspension of approved child care service's approval
History
Div 3 inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219TSQ Suspension of approved child care service's approval
219TSQ(1)
The Secretary may, by notice given to a person who operates an approved child care service, suspend the service's approval if:
(a)
10 infringement notices under section 219TSI are given to the person in relation to the service within a period (the
infringement period
) of 12 months; and
(b)
in relation to each notice, the time for paying the penalty specified in the notice has ended before the end of the infringement period.
History
S 219TSQ(1) amended by No 34 of 2010, s 3 and Sch 3 item 1, by substituting "may" for "must", applicable in relation to:
(a) infringement notices given on or after 14 April 2010; and
(b) infringement notices given before 14 April 2010, other than notices in respect of which paragraphs 219TSQ(1)(a) and (b) of the A New Tax System (Family Assistance) (Administration) Act 1999 were satisfied before 14 April 2010.
219TSQ(2)
The notice must:
(a)
specify a day, not earlier than the day on which the notice is given, on which the suspension takes effect; and
(b)
specify the grounds upon which the Secretary has suspended the service's approval.
219TSQ(3)
The Secretary may, by notice given to a person who operates the service, revoke the suspension with effect from the day specified in the notice.
History
S 219TSQ inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
Part 8C inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
Division 1 - Monitoring powers
History
Div 1 substituted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8C heading.
Div 1 inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219UA
Monitoring powers
Provisions subject to monitoring
219UA(1)
The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:
(a)
a civil penalty provision;
(b)
the following conditions for continued approval of an approved provider:
(i)
subsections 195A(1), (2), (3) and (4);
(ii)
subsection 195C(1);
(iii)
subsection 195D(1);
(iv)
section 195E;
(v)
subsection 195F(1);
(vi)
section 203A;
(c)
paragraphs 197A(1)(b), (c) and (d);
(d)
a listed child care information provision (see section 219UB).
Note:
Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
219UA(2)
Information given in compliance or purported compliance with one or more of the listed child care information provisions (see section 219UB) is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note:
Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
219UA(3)
For the purposes of Part 2 of the Regulatory Powers Act, each of the following provisions is related to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a)
a provision of Division 6 of Part 3A that creates an offence;
(b)
a provision of Part 8A that creates an offence;
(c)
a provision of the Crimes Act 1914 or the Criminal Code that relates to this Act and creates an offence.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
219UA(4)
For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a)
the Secretary is the authorised applicant; and
(b)
a person appointed under section 219UD is an authorised person; and
(c)
each of the following is an issuing officer:
(i)
a Judge of the Federal Circuit and Family Court of Australia (Division 2);
(ii)
a Judge of the Federal Court of Australia;
(iii)
a magistrate; and
(d)
the Secretary is the relevant chief executive; and
(e)
each of the following is a relevant court:
(i)
the Federal Court of Australia;
(ii)
the Federal Circuit and Family Court of Australia (Division 2).
History
S 219UA(4) amended by No 13 of 2021, s 3 and Sch 2 items 66 and 67, by substituting para (c)(i) and (e)(ii), effective 1 September 2021. Para (c)(i) and (e)(ii) formerly read:
(i)
a Judge of the Federal Circuit Court of Australia;
(ii)
the Federal Circuit Court of Australia.
Delegation by relevant chief executive
219UA(5)
The relevant chief executive may, in writing, delegate the power under section 35 of the Regulatory Powers Act to issue identity cards to authorised persons to an officer within the meaning of this Act.
219UA(6)
A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.
Person assisting
219UA(7)
An authorised person may be assisted by other persons (including members of an audit team) in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
History
S 219UA inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 219UB
219UB
Meaning of
listed child care information provision
A provision listed in the table is a
listed child care information provision
.
Listed child care information provisions
|
Item
|
Provision
|
Description
|
1 |
section 67FC |
notice if child not at risk of serious abuse or neglect |
2 |
section 67FH |
request for information about care provided |
3 |
subsection 154(3) |
requirement to give information or produce a document that may be relevant to amount of ACCS (child wellbeing) an approved provider is entitled to be paid |
4 |
subsection 154(4) |
requirement to give information or produce a document that may be relevant to provider's approval etc. |
5 |
subsection 154(5) |
requirement to produce records kept under section 202B or 202C |
6 |
section 155, if the person who owes the debt is the provider of a child care service |
requirement for debtor togive information etc. |
7 |
section 156, if the person who owes the debt is the provider of a child care service |
requirement for person to give information etc. in relation to a debtor |
8 |
section 157, to the extent that the required information relates to ACCS (child wellbeing) for which a provider is or might be eligible |
requirement for person to give information to verify claims etc. |
9 |
section 157A |
records supporting certificate under section 85CB (certification for ACCS (child wellbeing) |
10 |
section 199C |
notification of matters affecting approval |
11 |
section 200A, including that section as it applies because of section 204H |
enrolment notices |
12 |
section 200D, including that section as it applies because of section 204H |
updating enrolment notices |
13 |
section 203A |
financial information relating to large day care providers |
14 |
section 204A |
provider decides to stop operating an approved child care service |
15 |
section 204B, including that section as it applies because of section 204H |
reports in relation to enrolled children and others for whom care is provided |
16 |
section 204C, including that section as it applies because of section 204H |
dealing with inaccurate reports |
17 |
section 204D |
information about child care places |
18 |
section 204E, including that section as it applies because of section 204H |
further information about enrolled children |
19 |
section 204F |
notice of certain matters |
20 |
a Minister's rule made for the purposes of section 204G |
requirements in relation to children who are members of a prescribed class |
History
S 219UB amended by No 125 of 2019, s 3 and Sch 1 items 82 and 83, by substituting "information about care provided" for "information about children enrolled in child care" in table item 2, column headed "Description" and "section 202B or 202C" for "section 202D" in table item 5, column headed "Description", effective 16 December 2019.
S 219UB inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 219UC
Modification of Part 2 of the Regulatory Powers Act
219UC(1)
Paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is taken to include a reference to a person who apparently represents the occupier.
219UC(2)
If the consent referred to in paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is given by a person who apparently represents the occupier, references in the following provisions of the Regulatory Powers Act to the occupier are taken to be references to the person:
(a)
subparagraph 20(4)(b)(ii);
(b)
subsection 24(2);
(c)
section 25;
(d)
subsection 29(4).
History
S 219UC inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 219UD
Appointment of authorised persons
219UD(1)
The Secretary may, in writing, appoint any of the following as an authorised person for the purposes of this Act:
(a)
a person who holds, or performs the duties of, an appointment, office or position under a law of the Commonwealth or of a State or Territory;
(b)
an employee of an authority of the Commonwealth or of a State or Territory;
(c)
a person performing services for the Commonwealth under a contract with the Commonwealth.
219UD(2)
The Secretary must not appoint a person as an authorised person unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an authorised person.
219UD(3)
An authorised person must, in exercising powers as such, comply with any directions of the Secretary.
219UD(4)
If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
History
S 219UD inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 2 - Civil penalties
History
Div 2 substituted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8C heading.
Div 2 inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219VA
Civil penalty provisions
Enforceable civil penalty provisions
219VA(1)
Each civil penalty provision of this Act and the Family Assistance Act is enforceable under Part 4 of the Regulatory Powers Act.
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
219VA(2)
For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions in this Act.
Relevant court
219VA(3)
For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a)
the Federal Court of Australia;
(b)
the Federal Circuit and Family Court of Australia (Division 2).
History
S 219VA(3) amended by No 13 of 2021, s 3 and Sch 2 item 68, by substituting para (b), effective 1 September 2021. Para (b) formerly read:
(b)
the Federal Circuit Court of Australia.
History
S 219VA inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 219VB
Requirement for person to assist with applications for civil penalty orders
219VB(1)
A person commits an offence if:
(a)
the Secretary requires, 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 requirement.
Penalty: 10 penalty units.
219VB(2)
A requirement made under subsection (1) is not a legislative instrument.
219VB(3)
The Secretary may require 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.
219VB(4)
The Secretary cannot require 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.
219VB(5)
The Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) may order a person to comply with a requirement under subsection (1) in a specified way. Only the Secretary may apply to the court for an order under this subsection.
History
S 219VB(5) amended by No 13 of 2021, s 3 and Sch 2 item 69, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
219VB(6)
For the purposes of this section, it does not matter whether the application for the civil penalty provision has actually been made.
Note:
Subsection (1) 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.
History
S 219VB inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 3 - Infringement notices
History
Div 3 substituted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. For former wording, see note under Pt 8C heading.
Div 3 inserted by No 118 of 2007, s 3 and Sch 2 item 7, effective 1 July 2007.
SECTION 219WA
Infringement notices
Provisions subject to an infringement notice
219WA(1)
A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note:
Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
219WA(2)
For the purposes of Part 5 of the Regulatory Powers Act, a person appointed under subsection (3) is an infringement officer in relation to the provisions mentioned in subsection (1).
219WA(3)
The Secretary may, in writing, appoint an officer of the Department as an infringement officer for the purposes of this Act.
Relevant chief executive
219WA(4)
For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).
219WA(5)
The relevant chief executive may, in writing, delegate the powers and functions of the relevant chief executive under Part 5 of the Regulatory Powers Act to an officer within the meaning of this Act.
Single infringement notice may deal with more than one contravention
219WA(6)
Despite subsection 103(3) of the Regulatory Powers Act, a single infringement notice may be given to a person in respect of:
(a)
2 or more alleged contraventions of a provision mentioned in subsection (1); or
(b)
alleged contraventions of 2 or more provisions mentioned in subsection (1).
However, the notice must not require the person to pay more than one amount in respect of the same conduct.
History
S 219WA inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
Division 4 - General rules about offences and civil penalty provisions
History
Div 4 inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 219XA
Physical elements of offences
219XA(1)
This section applies if a provision of this Act provides that a person contravening another provision of this Act (the
conduct rule provision
) commits an offence.
219XA(2)
For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.
Note:
Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
History
S 219XA inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 219XB
Contravening an offence provision or a civil penalty provision
219XB(1)
This section applies if a provision of this Act provides that a person contravening another provision of this Act (the
conduct provision
) commits an offence or is liable to a civil penalty.
219XB(2)
For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
History
S 219XB inserted by No 22 of 2017, s 3 and Sch 1 item 208, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
PART 9 - OTHER MATTERS
SECTION 220
220
General administration of family assistance law
The Secretary is, subject to any direction of the Minister, to have the general administration of the family assistance law.
SECTION 220A
Minister requiring person to assist in criminal proceedings
220A(1)
A person commits an offence if:
(a)
the Minister requests, in writing, the person to give all reasonable assistance in connection with criminal proceedings for an offence against this Act; and
(b)
the person fails to comply with the request.
Penalty: 10 penalty units.
Note:
This section does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, document or other things.
220A(2)
A request under subsection (1) is not a legislative instrument.
220A(3)
The Minister can request a person to assist under subsection (1) if, and only if:
(a)
it appears to the Minister that the person is unlikely:
(i)
to be a defendant in the proceedings; or
(ii)
to have contravened a civil penalty provision constituted by the same, or substantially the same, conduct as the conduct to which the proceedings relates; and
(b)
the Minister suspects or believes that the person can give information relevant to the proceedings.
220A(4)
The Minister cannot request a person to assist under subsection (1) if the person is or has been a lawyer for a defendant or likely defendant in the proceedings.
220A(5)
A court may order a person to comply with a request under subsection (1) in a specified way. Only the Minister may apply to the court for an order under this subsection.
220A(6)
For the purposes of this section, it does not matter whether criminal proceedings for the offence have actually begun.
220A(7)
In this section:
offence against this Act
includes an offence against Chapter 7 of the Criminal Code that relates to this Act.
History
S 220A inserted by No 53 of 2008, s 3 and Sch 4 item 85, applicable in relation to conduct happening wholly after 26 June 2008, where
conduct
means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
SECTION 221
Delegation
Delegation to officers
221(1)
Subject to this section, the Secretary may delegate to an officer all or any of the powers of the Secretary under the family assistance law, other than:
(a)
the power to make Secretary's rules under subsection 85GB(2) of the Family Assistance Act; and
(b)
the power to engage an expert to carry out an independent audit as mentioned in section 203C of this Act.
History
S 221(1) substituted by No 22 of 2017, s 3 and Sch 1 item 209, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 221(1) formerly read:
221(1)
Subject to this section, the Secretary may delegate to an officer all orany of the powers of the Secretary under the family assistance law, other than the power to engage an expert to carry out an independent audit as mentioned in section 219GB.
S 221(1) amended by No 120 of 2011, s 3 and Sch 1 item 22, by inserting ", other than the power to engage an expert to carry out an independent audit as mentioned in section 219GB", effective 15 October 2011. For application provision see note under s 3(4B).
221(2)
(Repealed by No 46 of 2016)
History
S 221(2) repealed by No 46 of 2016, s 3 and Sch 8 item 1, applicable in relation to delegations made on or after 6 May 2016. S 221(2) formerly read:
221(2)
The Secretary must not delegate such a power to an officer of the Human Services Department, unless the Secretary of the Human Services Department has agreed to the delegation.
S 221(2) amended by No 32 of 2011, s 3 and Sch 4 item 42A, by substituting "officer of the Human Services Department, unless the Secretary of the Human Services Department" for "officer of an agency other than the Department, unless the head of the agency", effective 1 July 2011. For transitional provisions see note under s 108(2).
221(3)
The Secretary must not delegate the Secretary's power under subparagraph 168(1)(b)(i) (disclosure of information) except to the Human Services Secretary, the Chief Executive Centrelink or the Chief Executive Medicare.
History
S 221(3) amended by No 104 of 2020, s 3 and Sch 1 item 10, by substituting "Human Services Secretary" for "Secretary of the Human Services Department", effective 1 February 2020 and applicable in relation to an offence if the conduct constituting the offence occurs after 20 November 2020.
S 221(3) amended by No 32 of 2011, s 3 and Sch 4 items 43 and 44, by omitting "to an officer, except the head of an agency," after "must not delegate" and inserting "except to the Secretary of the Human Services Department, the Chief Executive Centrelink or the Chief Executive Medicare", effective 1 July 2011. For transitional provisions see note under s 108(2).
221(4)
The Secretary must not delegate to an officer, other than an SES employee or acting SES employee, the Secretary's powers under:
(a)
section 203A (power to require financial information);
(b)
subsection 219UD(1) (power to appoint authorised person);
(c)
subsection 219WA(3) (power to appoint infringement officer).
History
S 221(4) substituted by No 22 of 2017, s 3 and Sch 1 item 210, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 221(4) formerly read:
221(4)
The Secretary must not delegate to an officer, other than an SES employee or acting SES employee, the Secretary's powers under either of the following:
(a)
section 219GA (Secretary requiring information from person);
(b)
Division 2 of Part 8C (infringement notices).
S 221(4) substituted by No 120 of 2011, s 3 and Sch 1 item 23, effective 15 October 2011. For application provision see note under s 3(4B). S 221(4) formerly read:
221(4)
The Secretary must not delegate to an officer, except an SES employee or acting SES employee, the Secretary's powers under Division 2 of Part 8C (infringement notices).
S 221(4) amended by No 53 of 2008, s 3 and Sch 5 item 24, by inserting ", except an SES employee or acting SES employee," after "officer", effective 25 June 2008.
S 221(4) inserted by No 118 of 2007, s 3 and Sch 2 item 8, effective 29 June 2007.
Funding agreements
221(5)
The Secretary may delegate to an official of a non-corporate Commonwealth entity the Secretary's powers under section 85GA of the Family Assistance Act.
History
S 221(5) inserted by No 26 of 2021, s 3 and Sch 1 item 29, effective 27 March 2021. For application provisions, see note under s 205C.
Former s 221(5) repealed by No 96 of 2014, s 3 and Sch 9 item 20, effective 31 December 2016. For saving provisions, see note under Pt 3 Div 2A heading. S 221(5) formerly read:
221(5)
The Secretary may delegate to an APS employee in the Department administered by the Minister administering the Veterans' Entitlements Act 1986 all or any of the powers of the Secretary under the family assistance law that relate to the schoolkids bonus, to the extent that eligibility for that bonus is because of a payment of an education allowance under:
(a)
the Veterans' Children Education Scheme; or
(b)
the Military Rehabilitation and Compensation Act Education and Training Scheme.
Note:
The expression
APS employee
is defined in section 2B of the Acts Interpretation Act 1901.
Former s 221(5) inserted by No 154 of 2012, s 3 and Sch 5 item 60, effective 17 November 2012.
221(6)
In exercising a power delegated under subsection (5), an official must comply with any directions of the Secretary.
Note:
For non-corporate Commonwealth entity and official, see subsection 3(1).
History
S 221(6) inserted by No 26 of 2021, s 3 and Sch 1 item 29, effective 27 March 2021. For application provisions, see note under s 205C.
History
S 221 amended by No 45 of 2000, s 3 Sch 2 item 141, by substituting "subparagraph 168(1)(b)(i)" for "paragraph 168(1)(b)", effective 1 July 2000. For transitional provisions see note under s 69.
SECTION 221A
Committees
221A(1)
The Minister may in writing establish committees for the purposes of the family assistance law.
Functions
221A(2)
A committee has the functions determined in writing by the Minister.
221A(3)
A committee must, in performing its functions, comply with any directions given to the committee by the Minister.
Appointments
221A(4)
A committee consists of the members appointed in writing by the Minister.
221A(5)
A member of a committee holds office on a part-time basis.
Chair
221A(6)
The Minister may designated a member of a committee as the Chair of the committee.
Remuneration and allowances
221A(7)
A member of a committee is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.
221A(8)
A member of a committee is to be paid the allowances that are prescribed by the regulations.
221A(9)
Subsections (7) and (8) have effect subject to the Remuneration Tribunal Act 1973.
Disclosure of interests
221A(10)
A member of a committee must give written notice to the Minister of any direct or indirect pecuniary interest that the member has or acquires and that conflicts or could conflict with the proper performance of the member's functions.
Resignation
221A(11)
A member of a committee may resign his or her appointment by giving the Minister a written resignation.
Termination
221A(12)
The Minister may at any time terminate the appointment of a member of a committee.
History
S 221A inserted by No 118 of 2007, s 3 and Sch 3 item 35, effective 29 June 2007.
SECTION 222
Decisions to be in writing
222(1)
A decision of the Minister or of an officer under the family assistance law must be in writing.
222(2)
Such a decision is taken to be in writing if it is made, or recorded, by means of a computer.
SECTION 223
Secretary may arrange for use of computer programs to make decisions
223(1)
The Secretary may arrange for the use, under the Secretary's control, of computer programs for any purposes for which the Secretary or any other officer may make decisions under the family assistance law.
Note:
The definition of
decision
in subsection 3(1) covers the doing of any act or thing. This means, for example, that the doing of things under subsection 162(1) or (2) are decisions for the purposes of this section.
History
S 223(1) amended by No 17 of 2020, s 3 and Sch 1 items 81 and 82, by inserting "or any other officer" after "for which the Secretary" and inserting the note, effective 7 December 2020.
223(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.
History
S 223 substituted by No 47 of 2001, s 3 and Sch 3 item 16, effective 12 June 2001. S 223 formerly read:
Decisions taken by computer
223
If:
(a)
payment of family assistance is based upon data in a computer; and
(b)
the amount or rate of the payment is increased or reduced, or the payment is stopped, because of the operation of a computer program used under the control of the Secretary; and
(c)
the program causes the change for a reason for which the Secretary could make the change;
the Secretary is taken to have made the change, in writing, at the time at which the computer program caused the change to be made.
SECTION 224
Notice of decisions
Decisions about entitlement to family assistance
224(1)
Notice of a decision of an officer affecting a person's eligibility for, or entitlement to be paid, family assistance under the family assistance law is taken, for the purposes of the family assistance law, to have been given to the person if the notice 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 post to the address of the person last known to the Secretary.
Decisions about approval of providers of child care services
224(2)
Notice of a decision of an officer under Part 8 is taken to have been given to a provider if the notice is:
(a)
left at the address of the place of business of the provider last known to the Secretary; or
(b)
sent by post to the address of the provider last known to the Secretary; or
(c)
sent by email to the last known email address of the provider; or
(d)
sent by other electronic means to the provider.
History
S 224(2) amended by No 125 of 2019, s 3 and Sch 1 item 84, by inserting para (d), effective 16 December 2019.
Service by post
224(3)
A notice referred to in subsection (1) or (2) is taken to have been sent by post if the notice giver properly addresses, prepays and posts the notice as a letter. Unless the contrary is proved, the notice is taken to have been given to the person to whom it is addressed at the time the letter would be delivered in the ordinary course of post.
History
S 224 substituted by No 22 of 2017, s 3 and Sch 1 item 211, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 224 formerly read:
SECTION 224 Notice of decisions
224(1)
If a notice of a decision of an officer:
(a)
affecting a person's entitlement to be paid family assistance under the family assistance law; or
(b)
affecting a person's conditional eligibility for child care benefit by fee reduction; or
(c)
affecting a weekly limit of hours, a CCB %, a schooling %, eligibility for the special grandparent rate or a rate under section 81 of the Family Assistance Act applicable to a person; or
(caa)
about the amount of child care rebate applicable in respect of a person and a child for a week under Subdivision AAB of Division 4AA of Part 3; or
(ca)
about the amount of child care rebate applicable in respect of a person and a child for a quarter under Subdivision AA of Division 4AA of Part 3;
is:
(d)
delivered to a person personally; or
(e)
left at the address of the place of residence or business of the person last known to the Secretary; or
(f)
sent by prepaid post to the address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the family assistance law, to have been given to the person.
History
S 224(1) amended by No 154 of 2012, s 3 and Sch 6 item 7, by substituting "known" for "know" in para (f), effective 17 November 2012.
S 224(1) amended by No 25 of 2011, s 3 and Sch 1 item 76, by inserting para (caa), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 224(1) amended by No 50 of 2009, s 3 and Sch 1 item 38, by substituting "child care rebate" for "child care tax rebate" in para (ca), effective 24 June 2009.
S 224(1) amended by No 53 of 2008, s 3 and Sch 2 items 26 to 30, by omitting "affecting" after "decision of an officer", inserting "affecting" at the start of paras (a), (b) and (c) and inserting para (ca), applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 224(1) amended by No 132 of 2004, s 3 and Sch 4 item 43, by inserting ``, eligibility for the special grandparent rate'' after ``schooling %'', applicable to sessions of care provided in a week that commences after 1 January 2005.
S 224(1) substituted by No 45 of 2000, s 3 Sch 2 item 142, effective 1 July 2000. For transitional provisions see note under s 69. S 224(1) formerly read:
224(1)
If notice of a decision of an officer affecting a person's entitlement to be paid family assistance under the family assistance law is:
(a)
delivered to a 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;
notice of the decision is taken, for the purposes of the family assistance law, to have been given to the person.
224(2)
Notice of a decision of an officer affecting or about a matter referred to in paragraph (1)(a), (b), (c) or (ca) may be given to a person by properly addressing, prepaying and posting the document as a letter.
History
S 224(2) amended by No 53 of 2008, s 3 and Sch 2 item 31, by substituting "affecting or about a matter referred to in paragraph (1)(a), (b), (c) or (ca)" for "affecting a matter referred to in paragraph (1) (a), (b) or (c)", applicable in relation to care provided by an approved child care service to a child on or after 1 July 2008. For transitional provisions see note under s 65EAA.
S 224(2) substituted by No 45 of 2000, s 3 Sch 2 item 142, effective 1 July 2000. For transitional provisions see note under s 69. S 224(2) formerly read:
224(2)
Notice of a decision of an officer affecting a person's entitlement to be paid family assistance under the family assistance law may be given to a person by properly addressing, prepaying and posting the document as a letter.
224(3)
If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.
SECTION 224A
224A
Notice of decisions under Part 8 or 8C
(Repealed by No 22 of 2017)
History
S 224A repealed by No 22 of 2017, s 3 and Sch 1 item 211, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 224A formerly read:
SECTION 224A Notice of decisions under Part 8 or 8C
224A(1)
If a notice of a decision of an officer under Part 8 or 8C is:
(a)
left at the address of the place of business of a child care service last known to the Secretary; or
(b)
sent by prepaid post to the address of a child care service last known to the Secretary; or
(c)
sent by email to the last known email address of the child care service;notice of the decision is taken, for the purposes of the family assistance law, to have been given to the service.
History
S 224A(1) amended by No 53 of 2008, s 3 and Sch 5 item 25, by inserting "or 8C" after "Part 8", effective 25 June 2008.
224A(2)
Notice of a decision of an officer under Part 8 or 8C may be given to a service by properly addressing, prepaying and posting the document as a letter.
224A(3)
If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the service at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.
224A(4)
For the purposes of this section, a notice of a decision of an officer under Part 8C is:
(a)
an infringement notice under section 219TSI; or
(b)
a notice of suspension under section 219TSQ.
History
S 224A(4) inserted by No 53 of 2008, s 3 and Sch 5 item 26, effective 25 June 2008.
S 224A inserted by No 118 of 2007, s 3 and Sch 3 item 36, applicable to an attempt to give notice of a decision that takes place on or after 29 June 2007.
SECTION 225
225
Payment of deductions to Commissioner of Taxation
The Secretary must, in accordance with section 218 of the Income Tax Assessment Act 1936, or Subdivision 260-A in Schedule 1 to the Taxation Administration Act 1953, for the purpose of enabling the collection of an amount that is, or may become, payable by a recipient of a payment under this Act:
(a)
make deductions from the instalments of, or make a deduction from, the payment; and
(b)
pay the amount deducted to the Commissioner of Taxation.
This section does not apply to a payment of child care subsidy or additional child care subsidy.
History
S 225 amended by No 22 of 2017, s 3 and Sch 1 item 212, by substituting "subsidy or additional child care subsidy" for "benefit", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 225 amended by No 44 of 2000, s 3 and Sch 3 item 1, by substituting "or Subdivision 260-A in Schedule 1 to the Taxation Administration Act 1953, for the purpose of enabling the collection of an amount", for "for the purpose of enabling the collection of tax", effective 22 December 1999.
SECTION 226
Setting off family assistance entitlement against tax liability
226(1)
If:
(a)
a person is entitled to an amount of family assistance (other than child care subsidy or additional child care subsidy); and
(b)
the person is liable for an amount of primary tax;
the Commissioner of Taxation may determine that the whole or a part of the entitlement is to be set off against the liability.
History
S 226(1) amended by No 22 of 2017, s 3 and Sch 1 item 213, by substituting "subsidy or additional child care subsidy" for "benefit" in para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
226(2)
If the Commissioner of Taxation does so:
(a)
the amount of the entitlement and the amount of the liability are reduced accordingly; and
(b)
the person is taken to have paid so much of the amount of the tax as is equal to the amount set off against the tax liability at the time when the Commissioner sets off the amount or at any earlier time that the Commissioner determines.
History
S 226(2) amended by No 45 of 2000, s 3 Sch 2 item 143, by substituting para (b), effective 1 July 2000. For transitional provisions see note under s 69. Para (b) formerly read:
(b)
the person is taken to have paid the amount credited by the Commissioner in payment of the tax at the time when the Commissioner credits the amount or at any earlier time that the Commissioner determines.
226(3)
This section has effect in spite of anything in any other Act or any other law of the Commonwealth.
SECTION 227
Payment of deductions to Child Support Registrar
227(1)
The Secretary must, in accordance with a notice given to the Secretary under subsection 72AB(3) of the Child Support (Registration and Collection) Act 1988 in relation to a person:
(a)
make deductions from instalment amounts of family tax benefit that the person is entitled to be paid under section 23; or
(b)
make a deduction from an amount of family tax benefit that the person is entitled to be paid under section 24; and pay amounts so deducted to the Child Support Registrar.
227(2)
However, the Secretary must not deduct an amount under subsection (1) in contravention of section 228.
227(3)
If the Secretary deducts an amount under subsection (1), then:
(a)
on the day the amount is deducted, the total amount of the child support debts or carer debts of the person (being debts referred to in subsection 72AB(2) of the Child Support (Registration and Collection) Act 1988) is taken to be reduced by an amount equal to the amount deducted; and
(b)
on the day the amount is deducted, the person is taken to have been paid an amount of family tax benefit equal to the amount deducted.
History
S 227(3) amended by No 36 of 2018, s 3 and Sch 1 item 77, by inserting "or carer debts", effective 1 July 2018. No 36 of 2018, s 3 and Sch 1 item 172 contains the following application provision:
172 Application - overpayment amendments
(1)
This item applies in relation to the following amendments made by this Part:
(a)
the amendments of the A New Tax System (Family Assistance) (Administration) Act 1999;
…
…
227(4)
A deduction under subsection (1) may result in the family tax benefit that the person is entitled to be paid being reduced to nil.
History
S 227 inserted by No 75 of 2001, s 3 and Sch 1A item 24, effective 1 July 2002.
S 227 repealed by No 45 of 2000, s 3 Sch 2 item 144, effective 1 July 2000. For transitional provisions see note under s 69. S 227 formerly read:
227 Setting off arrears against debt owed
227(1)
If:
(a)
a person is entitled to an amount by way of arrears of family assistance; and
(b)
the person incurs a debt under this Act;
the Secretary may determine that the whole or a part of the entitlement to arrears is to be set off against the debt.
227(2)
Under subsection (1), the Secretary may set off a person's arrears of child care benefit only against a debt the person incurs in relation to child care benefit.
227(3)
If the Secretary makes a determination under subsection (1), the amount of the entitlement to arrears and the amount of the debt are reduced accordingly.
SECTION 228
Maximum deduction
228(1)
This section applies if a notice is given under subsection 72AB(3) of the Child Support (Registration and Collection) Act 1988 to a person that specifies:
(a)
an amount to be deducted from family tax benefit that the person is entitled to be paid on a day or days specified in the notice; or
(b)
a method of working out such an amount.
228(2)
The amount deducted on a particular day must not exceed the total amount of the child support debts of a person on that day, being debts referred to in subsection 72AB(2) of the Child Support (Registration and Collection) Act 1988.
228(3)
If, on a day specified in the notice, the person has at least one FTB child, or one regular care child who is also a rent assistance child, for whom the person is eligible for family tax benefit who is not a designated child support child of the person, the amount deducted on that day must not exceed the difference between:
(a)
the amount of family tax benefit that the person is entitled to be paid on that day; and
(b)
the amount of family tax benefit that the person would be entitled to be paid on that day, assuming that each designated child support child of the person was neither an FTB child, nor a regular care child, of the person on that day.
History
S 228(3) amended by No 146 of 2006, s 3 and Sch 8 items 107 and 108, by inserting ", or one regular care child who is also a rent assistance child," after "one FTB child" and substituting "neither an FTB child, nor a regular care child," for "not an FTB child" in para (b), effective 1 July 2008.
228(4)
If, on a day specified in the notice:
(a)
each FTB child , and each regular care child who is also a rent assistance child, for whom the person is eligible for family tax benefit is a designated child support child of the person; and
(b)
an income support payment or an income support supplement is payable to the person;
(c)
the amount of family tax benefit that the person is entitled to be paid on that day; andthe amount deducted on that day must not exceed the difference between:
(d)
the forgone amount in respect of the person's income support payment or income support supplement.
History
S 228(4) amended by No 146 of 2006, s 3 and Sch 8 item 109, by inserting ", and each regular care child who is also a rent assistance child," after "FTB child" in para (a), effective 1 July 2008.
228(5)
For the purposes of subsection (4), the
forgone amount
, in respect of a person's income support payment or income support supplement, is the amount that represents the difference between:
(a)
the amount of the income support payment or the income support supplement that would have been payable to the personif the person had not been entitled to be paid family tax benefit on that day; and
(b)
the amount of the income support payment or the income support supplement payable to the person on that day.
228(6)
In this section:
designated child support child of a person
has the same meaning as in section 72AB of the Child Support (Registration and Collection) Act 1988..
income support payment
has the same meaning as in the Social Security Act 1991.
income support supplement
has the same meaning as in Part IIIA of the Veterans' Entitlements Act 1986.
History
S 228 inserted by No 75 of 2001, s 3 and Sch 1A item 24, effective 1 July 2002.
Former s 228 repealed by No 45 of 2000, s 3 Sch 2 item 144, effective 1 July 2000. For transitional provisions see note under s 69. S 228 formerly read:
228 Setting off arrears of person who is not a debtor against a debt
228(1)
If:
(a)
a person (the
debtor
) incurs a debt under this Act; and
(b)
another person (the
consenting person
) is entitled to an amount by way of arrears of family assistance; and
(c)
for the purpose of the recovery of the debt, the consenting person consents to the deduction of an amount from the consenting person's arrears;
the Secretary may determine that the whole or a part of the entitlement to arrears is to be set off against the debt.
228(2)
Subsection (1) does not apply to an entitlement to arrears of child care benefit.
228(3)
If the Secretary makes a determination under subsection (1), the amount of the entitlement to arrears and the amount of the debt are reduced accordingly.
228(4)
The consenting person may revoke the consent at any time.
SECTION 228A
PAYMENT OF OTHER DEDUCTIONS ON REQUEST
228A(1)
This section applies if a person asks the Secretary:
(a)
to make deductions from an instalment of an amount, or from an amount, payable to the person under this Act (other than child care subsidy or additional child care subsidy); and
(b)
to pay the amounts deducted to a business or organisation nominated by the person.
History
S 228A(1) amended by No 22 of 2017, s 3 and Sch 1 item 214, by substituting "subsidy or additional child care subsidy" for "benefit" in para (a), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
228A(2)
The Secretary may make the deductions requested by the person, and if the Secretary does so, the Secretary must pay the amounts deducted to the business or organisation nominated by the person.
History
S 228A inserted by No 144 of 2015, s 3 and Sch 1 item 3, effective 13 November 2015.
SECTION 229
Judicial notice of certain matters
229(1)
All courts are to take judicial notice of a signature that purports to be attached or appended to any official document produced under the family assistance law, if the signature is of a person who is or has been an officer.
229(2)
If the signature of a person referred to in subsection (1) purports to be attached or appended to any official document produced under the family assistance law, all courts are to take judicial notice of the fact that the person is, or has been, an officer.
SECTION 230
Documentary evidence
230(1)
If the signature of any person who is or has been an officer purports to be attached or appended to any official document, the document is to be received in all courts as prima facie evidence of the facts and statements contained in it.
230(2)
A statement in writing signed by a person referred to in subsection (1) that another person is or was entitled to, or had received, a payment under this Act on a certain date and of a certain amount is to be received in all courts as prima facie evidence that the person is or was entitled to, or had received, the payment on the date, and of the amount, stated.
SECTION 230A
Application of family assistance law to providers that are partnerships
230A(1)
The family assistance law applies to a partnership as if it were a person, but with the changes set out in this section.
230A(2)
An obligation that would otherwise be imposed on the partnership by the family assistance law is imposed on each partner instead, but may be discharged by any of the partners.
230A(3)
A permission that would otherwise be conferred on the partnership by the family assistance law is conferred on each partner instead, but may be exercised by any of the partners.
230A(4)
An offence against the family assistance law that would otherwise have been committed by the partnership is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:
(a)
did the relevant act or made the relevant omission; or
(b)
aided, abetted, counselled or procured the relevant act or omission; or
(c)
was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).
230A(5)
This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.
230A(6)
For the purposes of the family assistance law, a change in the composition of a partnership does not affect the continuity of the partnership.
230A(7)
The Minister's rules may make provision in relation to the application of the family assistance law to a partnership, to the extent to which this section and section 231 do not do so.
History
S 230A inserted by No 22 of 2017, s 3 and Sch 1 item 215, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 230B
Application of family assistance law to providers that are unincorporated
230B(1)
The family assistance law applies to an unincorporated entity or body, other than a partnership, as if it were a person, but with the changes set out in this section.
230B(2)
An obligation that would otherwise be imposed on the entity or body by the family assistance law is imposed on each member of the entity or body's governing body instead, but may be discharged by any of the members.
230B(3)
A permission that would otherwise be conferred on the entity or body by the family assistance law is conferred on each member of the entity or body's governing body instead, but may be exercised by any of the members.
230B(4)
An offence against the family assistance law that would otherwise have been committed by the entity or body is taken to have been committed by each member of the entity or body's governing body, at the time the offence was committed, who:
(a)
did the relevant act or made the relevant omission; or
(b)
aided, abetted, counselled or procured the relevant act or omission; or
(c)
was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the member).
230B(5)
This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.
230B(6)
The Minister's rules may make provision in relation to the application of the family assistance law to an unincorporated entity or body, to the extent to which this section and section 231 do not do so.
History
S 230B inserted by No 22 of 2017, s 3 and Sch 1 item 215, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 231
Application of family assistance law to unincorporated bodies
231(1)
The family assistance law applies to an unincorporated body or association (the
body
) as if it were a person other than an individual, but it applies with the following 3 changes.
History
S 231(1) amended by No 120 of 2011, s 3 and Sch 1 item 24, by substituting "3 changes" for "2 changes", effective 15 October 2011. For application provision see note under s 3(4B).
Imposition of obligations
231(2)
The first change is that obligations that would be imposed on the body are imposed instead on:
(a)
if the body is a partnership - each partner; or
(b)
in any other case - each member of the committee of management of the body;
but they may be discharged by any of the partners or any of those members.
History
S 231(2) amended by No 22 of 2017, s 3 and Sch 1 item 216, by substituting "The" for "Subject to subsection (2A), the", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 231(2) amended by No 118 of 2007, s 3 and Sch 3 item 37, by substituting "Subject to subsection (2A), the" for "The", applicable in relation to debts that become due to the Commonwealth after 29 June 2007.
Permissions
231(2A)
A permission that would otherwise be conferred on the body by the family assistance law is conferred on:
(a)
if the body is a partnership - each partner instead; and
(b)
otherwise - each member of the entity or body's governing body instead;
but may be exercised by any of those partners or members.
History
S 231(2A) substituted by No 22 of 2017, s 3 and Sch 1 item 217, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. S 231(2A) formerly read:
Imposition of obligations
231(2A)
If:
(a)
an unincorporated body or association is operating an approved child care service; and
(b)
a debt becomes due to the Commonwealth by the service under Part 4;then subsection (2) does not apply in relation to the debt and the debt is taken to be a debt owed by the service.
Note:
One of the effects of this subsection is that subsection 82(2) rather than subsection 82(1) will apply to the debt. Subsection 82(2) provides more ways of recovering debts than subsection 82(1) (for example, setting off debts against advances is permissible).
S 231(2A) inserted by No 118 of 2007, s 3 and Sch 3 item 38, applicable in relation to debts that become due to the Commonwealth after 29 June 2007.
Commission of offences
231(3)
The second change is that any offence against this Act that would otherwise be committed by the body is taken instead to have been committed by:
(a)
if the body is a partnership - any partner:
(i)
who was knowingly concerned in, or party to, the relevant act or omission; or
(ii)
who aided, abetted, counselled or procured the relevant act or omission; or
(b)
in any other case - any member of the committee of management of the body:
(i)
who was knowingly concerned in, or party to, the relevant act or omission; or
(ii)
who aided, abetted, counselled or procured the relevant act or omission.
Contravention of civil penalty provisions
231(4)
The third change is that any contravention of a civil penalty provision that would otherwise be committed by the body is taken instead to have been committed by:
(a)
if the body is a partnership - any partner:
(i)
who was knowingly concerned in, or party to, the relevant contravention; or
(ii)
who aided, abetted, counselled or procured the relevant contravention; or
(b)
in any other case - any member of the committee of management of the body:
(i)
who was knowingly concerned in, or party to, the relevant contravention; or
(ii)
who aided, abetted, counselled or procured the relevant contravention.
History
S 231(4) inserted by No 120 of 2011, s 3 and Sch 1 item 25, effective 15 October 2011. For application provision see note under s 3(4B).
Interaction with sections 230A and 230B
231(5)
Section 230A or 230B applies instead of this section if:
(a)
apart from this subsection, both section 230A or 230B and this section would apply to a situation; and
(b)
in the situation, the family assistance law:
(i)
expressly refers to a provider or an approved provider; or
(ii)
operates in relation to a body that is applying to become, is, or has been, an approved provider.
History
S 231(5) inserted by No 22 of 2017, s 3 and Sch 1 item 218, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
SECTION 232
Annual report
232(1)
As soon as practicable after 30 June in each year, the Secretary must give the Minister a written report on the administrative operation of the family assistance law during the financial year that ended on that 30 June.
232(2)
The Minister is to cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
SECTION 233
Appropriation
233(1)
Payments under this Act are to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.
History
S 233 amended by No 22 of 2017, s 3 and Sch 1 item 219, by inserting "(1)" before "Payments", effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
233(2)
However, subsection (1) does not apply to a payment of an amount under an agreement entered into under section 85GA (funding agreements) of the Family Assistance Act unless the payment is for a purpose prescribed by the Minister's rules.
Note:
The purposes that may be prescribed by the Minister's rules are limited by subsection 85GA(1) of the Family Assistance Act.
History
S 233(2) substituted by No 38 of 2020, s 3 and Sch 4 item 3, effective 9 April 2020. S 233(2) formerly read:
233(2)
Subsection (1) does not apply to so much of a payment as is described in the table.
Amounts to which subsection (1) does not apply
|
Item
|
If this kind of payment is made:
|
Subsection (1) does not apply to this much of the payment:
|
1 |
a payment of ACCS (child wellbeing), ACCS (temporary financial hardship) or ACCS (grandparent) to an individual |
so much of the payment as exceeds the amount that would have been paid to the individual if: |
(a) |
the individual were entitled to be paid CCS instead of ACCS; and |
(b) |
the individual's applicable percentage for the purposes of the amount of that CCS were worked out under subsection (3); and |
(c) |
the activity test result for the individual had been 100 |
2 |
a payment of ACCS (transition to work) |
so much of the payment as exceeds the amount that would have been paid to the individual if: |
(a) |
the individual were entitled to be paid CCS instead of ACCS; and |
(b) |
the individual's applicable percentage for the purposes of the amount of that CCS were worked out under subsection (3) |
3 |
a payment of ACCS (child wellbeing) to an approved provider of a service |
so much of the payment as exceeds the amount that would have been paid to the provider if: |
(a) |
the percentage in subclause 9(1) of Schedule 2 to the Family Assistance Act were 85% instead of 100%; and |
(b) |
the deemed activity test result for the provider had been 100 |
4 |
a payment of an amount under an agreement entered into under section 85GA (funding agreements) of the Family Assistance Act |
the whole of the payment |
S 233(2) inserted by No 22 of 2017, s 3 and Sch 1 item 220, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
233(3)
The Minister's rules must prescribe the total amount that may be paid in respect of a financial year under subsection (1) because of subsection (2).
History
S 233(3) inserted by No 38 of 2020, s 3 and Sch 4 item 4, effective 1 July 2020. No 38 of 2020, s 3 and Sch 4 item 5 contains the following transitional provision:
5 Transitional - Minister's rules for the financial year beginning on 1 July 2020
5
Despite paragraph 233(4)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999, as inserted by this Part, Minister's rules for the purposes of subsection 233(3) of that Act for the financial year beginning on 1 July 2020 may be made during that financial year.
Former s 233(3) repealed by No 38 of 2020, s 3 and Sch 4 item 3, effective 9 April 2020. S 233(3) formerly read:
233(3)
For the purposes of paragraph (b) of table items 1 and 2, the individual's applicable percentage for the purposes of an amount of CCS is:
(a)
worked out using the individual's adjusted taxable income for the income year concerned, if known at the time the payment is made; or
(b)
if the individual's adjusted taxable income for the income year concerned is not known at the time the payment is made:
(i)
worked out using an estimate of the individual's adjusted taxable income (if any) in accordance with Division 4 of Part 3A; or
(ii)
if there is no such estimate - 85%.
Former s 233(3) inserted by No 22 of 2017, s 3 and Sch 1 item 220, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
233(4)
Minister's rules for the purposes of subsection (3) for a financial year:
(a)
must be made before the start of the financial year; and
(b)
may be varied at any time before the financial year ends.
History
S 233(4) insertedby No 38 of 2020, s 3 and Sch 4 item 4, effective 1 July 2020. For transitional provision, see note under s 233(3).
233(5)
The Minister's rules may prescribe the total amount that may be paid in respect of a financial year under subsection (1) because of subsection (2) for a purpose prescribed by the Minister's rules made for the purposes of subsection (2).
History
S 233(5) inserted by No 38 of 2020, s 3 and Sch 4 item 4, effective 1 July 2020. For transitional provision, see note under s 233(3).
SECTION 234
Agreements on administrative arrangements
234(1)
The Secretary and the Principal Member may agree on administrative arrangements to further the objectives of Division 2 of Part 5.
History
S 234(1) amended by No 38 of 2010, s 3 and Sch 3 item 50, by substituting "Principal Member" for "Executive Director", effective 11 May 2010.
234(2)
The Secretary and the Commissioner of Taxation may agree on administrative arrangements to further the objectives of this Act.
234(3)
(Repealed by No 32 of 2011)
History
S 234(3) repealed by No 32 of 2011, s 3 and Sch 4 item 45, effective 1 July 2011. For transitional provisions see note under s 108(2). S 234(3) formerly read:
234(3)
The Secretary and the Chief Executive Officer of Medicare Australia may agree on administrative arrangements to further the objectives of this Act.
S 234(3) amended by No 111 of 2005, s 3 and Sch 2 item 89, by substituting "Chief Executive Officer of Medicare Australia" for "Managing Director of the Health Insurance Commission", effective 1 October 2005.
SECTION 235
Regulations
235(1)
The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient for carrying out or giving effect to this Act.
History
S 235(1) amended by No 50 of 2009, s 3 and Sch 4 items 7 and 8, by substituting "Act." for "Act;" in para (b) and omitting "and, in particular, may make regulations prescribing penalties of a fine not exceeding 10 penalty units for any breach of the regulations. " after para (b), effective 25 June 2009.
Offences and civil penalties
235(1A)
Without limiting subsection (1), the regulations may:
(a)
prescribe penalties for offences against the regulations that do not exceed a fine of 10 penalty units; and
(b)
declare that specified provisions of the regulations are civil penalty provisions, and prescribe penalties for contraventions of such provisions that do not exceed:
(i)
for a body corporate - 250 penalty units; or
(ii)
in any other case - 50 penalty units.
History
S 235(1A) amended by No 22 of 2017, s 3 and Sch 1 item 221, by omitting "for the purposes of this Act" after "civil penalty provisions" from para (b), effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
S 235(1A) inserted by No 50 of 2009, s 3 and Sch 4 item 9, effective 25 June 2009.
Fees
235(2)
Without limiting subsection (1), the regulations may prescribe fees for the making of applications under section 194 or 207. Any such fees must not be such as to amount to taxation.
Proof of making of claims etc
235(3)
Without limiting subsection (1), if a provision of the family assistance law provides that the Secretary or another officer may approve:
(a)
the form or manner of making or withdrawing any application or claim; or
(b)
the way of doing any other thing that is required or permitted to be done for the purposes of that law;
the regulations may make provision for the proof of the making or withdrawing of the application or claim, or the doing of the other thing, for the purposes of any legal proceedings.
Date of effect of review decisions
235(4)
Without limiting subsection (1), the regulations may provide that specified decisions by:
(a)
the Secretary under any provision of this Act; or
(b)
an authorised review officer or the Administrative Appeals Tribunal, under Part 5;
that have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment, only have effect from a specified day before the making of the decisions.
[
CCH Note:
S 235(4) will be amended by No 38 of 2024, s 3 and Sch 3 item 209, by substituting "ART" for "Administrative Appeals Tribunal" in para (b), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 235(4) amended by No 60 of 2015, s 3 and Sch 5 item 27, by omitting ", the Social Security Appeals Tribunal," before "or the Administrative Appeals Tribunal" from para (b), effective 1 July 2015.
235(5)
(Repealed by No 45 of 2000)
History
S 235(5) repealed by No 45 of 2000, s 3 Sch 2 item 145, effective 1 July 2000. For transitional provisions see note under s 69. S 235(5) formerly read:
Conditional eligibility determinations
235(5)
If regulations providing for the making of determinations as mentioned in paragraph 49(1)(a) are made, in accordance with section 4 of the Acts Interpretation Act 1901, before the provisions under which the regulations are made come into operation, then, in spite of that section, the determinations may be made at any time after the regulations are made, but do not have effect before the provisions under which the regulations are made come into operation.