A New Tax System (Family Assistance) Act 1999
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Hide history notePt 3 heading substituted by No 22 of 2017, s 3 and Sch 1 item 34, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 4A heading. The heading formerly read:
PART 3 - ELIGIBILITY FOR FAMILY ASSISTANCE
Div 3 repealed by No 49 of 2012, s 3 and Sch 1 item 10, effective 1 July 2012. For transitional and application provisions see note under s 61B .
Div 3 formerly read:
Division 3 - Eligibility for maternity immunisation allowance
Subdivision A - Eligibility of individuals for maternity immunisation allowance in normal circumstances
SECTION 39 WHEN AN INDIVIDUAL IS ELIGIBLE FOR MATERNITY IMMUNISATION ALLOWANCE IN NORMAL CIRCUMSTANCES
39(1)
An individual is eligible for maternity immunisation allowance in respect of a child in any of the 7 cases set out in this section.HistoryS 39(1) amended by No 143 of 2008, s 3 and Sch 1 item 1, by substituting " 7 " for " 3 " , effective 1 January 2009.
Usual case
39(2)
First, an individual is eligible for maternity immunisation allowance in respect of a child who is alive at the end of 18 months after the date of the child's birth if:
(a) the Secretary is satisfied that the child meets the immunisation requirements set out in section 6 on any day before the child turns 2; and
(aa) the child is an FTB child of the individual; and
(b) on the later of the following days:
(i) the day the child turned 18 months;the individual either:
(ii) the earliest day to which paragraph (a) applies;
(iii) is eligible for family tax benefit in respect of the FTB child; or
(iv) would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS39(2) amended by No 146 of 2006, s 3 and Sch 8 items 41 and 42, by inserting para (aa) after para (a) and substituting " in respect of the FTB child " for " in respect of the child " in para (b)(iii), effective 1 July 2008.
S 39(2) amended by No 59 of 2004, s 3 and Sch 2 item 43, by substituting para (b), applicable in relation to children who turn 18 months, and are alive, on a day that is on or after 1 July 2004 (whether they are born before, on or after 1 July 2004). Para (b) formerly read:
(b) on the later of the following days (the qualifying day ):
(i) the day the child turned 18 months;one of the following applies:
(ii) the earliest day to which paragraph (a) applies;
(iii) the child is an FTB child of the individual and maternity allowance has been paid in respect of the child;
(iv) the individual is eligible for family tax benefit in respect of the child and the individual's Part A rate is greater than nil;
(v) (Repealed by No 45 of 2000)S 39(2) amended by No 45 of 2000, s 3 Sch 1 item 16, by repealing subpara (b)(v). For transitional provisions see note under s 22A. Subpara (b)(v) formerly read:
(v) the Secretary is satisfied there is a pattern of care for the child for a period, that started before the qualifying day and that will end after that day, in which the child was, or will be, an FTB child of the individual.
39(2A)
Second, an individual is eligible for maternity immunisation allowance in respect of a child who is alive at the end of 4 years after the date of the child's birth if:
(a) the Secretary is satisfied that the child meets the immunisation requirements set out in section 6 on any day before the child turns 5; and
(b) the child is an FTB child of the individual; and
(c) on the later of the following days:
(i) the day the child turned 4;the individual either:
(ii the earliest day to which paragraph (a) applies;
(iii) is eligible for family tax benefit in respect of the FTB child; or
(iv) would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS 39(2A) inserted by No 143 of 2008, s 3 and Sch 1 item 2, effective 1 January 2009.
Stillborn child
39(3)
Second, an individual is eligible for maternity immunisation allowance in respect of a child if:
(a) the child is a stillborn child; and
(b) had the child been born alive:
(i) the child would have been an FTB child of the individual at birth; and
(ii) the individual, or the individual ' s partner, would have been the primary carer of the child at birth; and
(c) either:
(i) the individual would have been eligible for family tax benefit in respect of the FTB child, at any time within the period of 13 weeks starting on the day of the child's delivery, assuming the child had not been a stillborn child; or
(ii) the individual would have been so eligible on the assumption described in subparagraph (i) except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS 39(3) amended by No 105 of 2010, s 3 and Sch 1 item 16, by substituting para (b), effective 1 January 2011. Para (b) formerly read:
(b) if the child had been born alive, the child would have been an FTB child of the individual at birth; andS 39(3) substituted by No 63 of 2008, s 3 and Sch 2 item 13, applicable in relation to children delivered on or after 1 January 2009. S 39(3) formerly read:
Third, an individual is eligible for maternity immunisation allowance in respect of a child that is a stillborn child if the individual is entitled to baby bonus in respect of the child.
S 39(3) amended by No 143 of 2008, s 3 and Sch 1 item 3, by substituting " Third " for " Second " , effective 1 January 2009.
S 39(3) amended by No 82 of 2007, s 3 and Sch 6 item 19, 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 39(3) amended by No 59 of 2004, s 3 and Sch 2 item 7, by substituting " maternity payment " for " maternity allowance " , applicable in relation to stillborn children delivered on or after 1 July 2004.
Child dies within 5 years of birth
39(4)
Fourth, an individual is eligible for maternity immunisation allowance in respect of a child who is born alive but dies within 5 years if, on the day of the child's death:
(a) the child is an FTB child of the individual; and
(b) the individual either:
(i) is eligible for family tax benefit in respect of the FTB child; or
(ii) would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS 39(4) amended by No 143 of 2008, s 3 and Sch 1 items 4 and 5, by substituting " Fourth " for " Third " and substituting " 5 " for " 2 " , effective 1 January 2009.
S 39(4) substituted by No 146 of 2006, s 3 and Sch 8 item 43, effective 1 July 2008. S 39(4) formerly read:
39(4)
Third, an individual is eligible for maternity immunisation allowance in respect of a child who is born alive but dies within 2 years if, on the day of the child's death, the individual either:
(a) is eligible for family tax benefit in respect of the child; or
(b) would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.S 39(4) substituted by No 59 of 2004, s 3 and Sch 2 item 45, applicable in relation to children who die on or after 1 July 2004 (whether they were born before, on or after 1 July 2004). S 39(4) formerly read:
Child dies within 2 years of birth
39(4)
Third, an individual is eligible for maternity immunisation allowance in respect of a child who is born alive but dies within 2 years if one of the following applies:
(a) the child was an FTB child of the individual on the day of the child's death and someone has been paid or is entitled to be paid maternity allowance in respect of the child;
(b) on the day of the child's death, the individual was eligible for family tax benefit in respect of the child and the individual's Part A rate was greater than nil;
(c) (Repealed by No 45 of 2000)S 39(4) amended by No 45 of 2000, s 3 Sch 1 item 17, by repealing para (c). For transitional provisions see note under s 22A. Para (c) formerly read:
(c) the Secretary is satisfied that, on the day of the child's death, there was a pattern of care for the child for a period, that started before that day and that would have ended after that day if the child had not died, in which the child was, or would have been, an FTB child of the individual.
Adoption of children born outside Australia
(5)
Fifth, an individual is eligible for maternity immunisation allowance in respect of a child if:
(a) the child is born outside Australia; and
(b) either:
(i) while the child is outside Australia, the child is adopted under the law of any place (whether in Australia or not) relating to the adoption of children (whether or not the child is adopted by the individual); or
(ii) the child is in the process of being adopted under the law of any place (whether in Australia or not) relating to the adoption of children (whether or not the child is to be adopted by the individual); and
(c) as part of the process for the adoption of the child, the child is entrusted to the care of a person adopting the child by an authorised party; and
(d) either:
(i) if subparagraph (b)(i) applies - the child arrives in Australia from overseas after the adoption takes place and the child so arrives on the day the child turns 3 or an earlier day; or
(ii) if subparagraph (b)(ii) applies - the child arrives in Australia from overseas as part of the process for the adoption of the child and the child so arrives on the day the child turns 3 or an earlier day; and
(e) the Secretary is satisfied that the child meets the immunisation requirements set out in section 6 on or after the day the child turns 18 months and before the day the child turns 4; and
(f) on the earliest day to which paragraph (e) applies:
(i) the child is an FTB child of the individual; and
(ii) the individual is eligible for family tax benefit in respect of the FTB child or would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS 39(5) inserted by No 143 of 2008, s 3 and Sch 1 item 6, effective 1 January 2009.
39(6)
Sixth, an individual is eligible for maternity immunisation allowance in respect of a child if:
(a) the child is born outside Australia; and
(b) either:
(i) while the child is outside Australia, the child is adopted under the law of any place (whether in Australia or not) relating to the adoption of children (whether or not the child is adopted by the individual); or
(ii) the child is in the process of being adopted under the law of any place (whether in Australia or not) relating to the adoption of children (whether or not the child is to be adopted by the individual); and
(c) as part of the process for the adoption of the child, the child is entrusted to the care of a person adopting the child by an authorised party; and
(d) either:
(i) if subparagraph (b)(i) applies - the child arrives in Australia from overseas after the adoption takes place and the child so arrives on a day that is after the child turns 3 and before the child turns 16; or
(ii) if subparagraph (b)(ii) applies - the child arrives in Australia from overseas as part of the process for the adoption of the child and the child so arrives on a day that is after the child turns 3 and before the child turns 16; and
(e) either subsection (7) or (8) is satisfied.HistoryS 39(6) inserted by No 143 of 2008, s 3 and Sch 1 item 6, effective 1 January 2009.
39(7)
This subsection is satisfied if:
(a) the Secretary is satisfied that the child meets the immunisation requirements set out in section 6 on any day within the last 6 months of the period of 2 years beginning on the day of the arrival mentioned in paragraph (6)(d); and
(b) on the earliest day to which paragraph (a) applies:
(i) the child is an FTB child of the individual; and
(ii) the individual is eligible for family tax benefit in respect of the FTB child or would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS 39(7) inserted by No 143 of 2008, s 3 and Sch 1 item 6, effective 1 January 2009.
39(8)
This subsection is satisfied if the child dies within the period of 2 years beginning on the day of the arrival mentioned in paragraph (6)(d), and on the day of the child's death:
(a) the child is an FTB child of the individual; and
(b) the individual is eligible for family tax benefit in respect of the FTB child or would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS 39(8) inserted by No 143 of 2008, s 3 and Sch 1 item 6, effective 1 January 2009.
39(9)
Seventh, an individual is eligible for maternity immunisation allowance in respect of a child if:
(a) the child is born outside Australia; and
(b) either:
(i) while the child is outside Australia, the child is adopted under the law of any place (whether in Australia or not) relating to the adoption of children (whether or not the child is adopted by the individual); or
(ii) the child is in the process of being adopted under the law of any place (whether in Australia or not) relating to the adoption of children (whether or not the child is to be adopted by the individual); and
(c) as part of the process for the adoption of the child and while the child is outside Australia, the child is entrusted to the care of a person adopting the child by an authorised party; and
(d) the child dies before turning 16; and
(e) the child has not arrived in Australia from overseas after the child is entrusted to care as mentioned in paragraph (c); and
(f) on the day of the child's death:
(i) the child is an FTB child of the individual; and
(ii) the individual is eligible for family tax benefit in respect of the FTB child or would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4 , is nil.HistoryS 39(9) inserted by No 143 of 2008, s 3 and Sch 1 item 6, effective 1 January 2009.
39(10)
For the purposes of paragraphs (7)(b), (8)(a) and (b) and (9)(f), the following provisions are to be disregarded:
(a) paragraph (a) of item 1 of the table in subsection 22A(1) ;
(b) paragraphs (a) and (c) of item 2 of that table;
(c) item 3 of that table.Note:
Section 22A sets out exceptions to when an individual can be an FTB child of another individual. This subsection removes some of those exceptions.
HistoryS 39(10) inserted by No 143 of 2008, s 3 and Sch 1 item 6, effective 1 January 2009.
CCH Note: No 143 of 2008, s 3 and Sch 1 items 12 to 14 contain the following application and transitional provisions with respect to s 39:
12 Application and transitional - eligibility for maternity immunisation allowance
Usual case
(1)
Subsection 39(2A) of the A New Tax System (Family Assistance) Act 1999 applies in relation to:
(a) children born on or after 1 January 2009; and
(b) children born before 1 January 2009, other than children in respect of whom the Secretary had determined, before that commencement, maternity immunisation allowance was to be paid, based on eligibility for the allowance under subsection 39(2) of that Act or section 40 of that Act (so far as it relates to that subsection).
Child dies within 5 years of birth
(2)
The amendment made by item 5 applies in relation to deaths occurring on or after 1 January 2009.
Adoption of children born outside Australia
(3)
Subsections 39(5) and (6) of the A New Tax System (Family Assistance) Act 1999 apply in relation to:
(a) processes for adoptions beginning before, on or after 1 January 2009; and
(b) arrivals in Australia occurring on or after 1 July 2006.
(4)
Paragraph 39(5)(e) of the A New Tax System (Family Assistance) Act 1999 applies in relation to a child arriving in Australia on or after 1 July 2006 and before 1 January 2009 as if the reference in that paragraph to " the day the child turns 4 " were a reference to " 1 January 2011 " .
(5)
Subsection 39(6) of the A New Tax System (Family Assistance) Act 1999 , insofar as it relates to subsection 39(8) of that Act, applies as if a reference in subparagraphs 39(6)(d)(i) and (ii) of that Act to " the child so arrives on a day that is after the child turns 3 and before the child turns 16 " included a reference to " the child so arrives on or after 1 July 2006 and before 1 January 2009 and so arrives on the day the child turns 3 or an earlier day " .
(6)
Paragraph 39(7)(a) of the A New Tax System (Family Assistance) Act 1999 applies in relation to a child arriving in Australia on or after 1 July 2006 and before 1 January 2009 as if the reference in that paragraph to " within the last 6 months of the period of 2 years beginning on the day of the arrival mentioned in paragraph (6)(d) " were a reference to " that is at least 18 months after the day of the arrival mentioned in paragraph (6)(d) and is before 1 January 2011 " .
(7)
Subsection 39(8) of the A New Tax System (Family Assistance) Act 1999 applies in relation to a child arriving in Australia on or after 1 July 2006 and before 1 January 2009 as if the reference in that subsection to " within the period of 2 years beginning on the day of the arrival mentioned in paragraph (6)(d) " were a reference to " before 1 January 2011 " .
(8)
Subsection 39(9) of the A New Tax System (Family Assistance) Act 1999 applies in relation to:
(a) processes for adoptions beginning before, on or after 1 January 2009; and
(b) deaths occurring on or after 1 July 2006.
13 Application and transitional - amount of maternity immunisation allowance
(1)
Paragraph 67(2)(a) of the A New Tax System (Family Assistance) Act 1999 , to the extent it relates to subsection 39(2) of that Act or section 40 of that Act (so far as it relates to subsection 39(2) of that Act) applies 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.
(2)
If:
(a) the Secretary determines that an individual is entitled to be paid maternity immunisation allowance for a child based on eligibility for the allowance for a child based on eligibility for the allowance under subsection 39(5) of the A New Tax System (Family Assistance) Act 1999 or section 40 of that Act (so far as it relates to that subsection); and
(b) the day of the arrival mentioned in paragraph 39(5)(d) of that Act was before 1 January 2009;then:
(c) the amount of the allowance in respect of the child is the amount under subsection 67(1) of that Act; and
(d) paragraph 67(4)(a) of that Act is taken to be satisfied in relation to that amount.
39(3)
If, before 1 January 2009, the Secretary determined that an amount of maternity immunisation allowance under section 67 of the A New Tax System (Family Assistance) Act 1999 was to be paid in respect of a child, no further amount of maternity immunisation allowance is to be paid in respect of the child after that commencement.
14 Application and transitional - claims for maternity immunisation allowance
(1)
If:
(a) an individual made a claim for maternity immunisation allowance before 1 January 2009 based on eligibility for the allowance under subsection 39(2) of the A New Tax System (Family Assistance) Act 1999 ; and
(b) the claim had not been determined by the Secretary before 1 January 2009;the individual is also taken to have made a claim for maternity immunisation allowance, based on eligibility for the allowance under subsection 39(2A) of the A New Tax System (Family Assistance) Act 1999 , on 1 January 2009.
(2)
If:
(a) an individual:
(i) is eligible for maternity immunisation allowance under subsection 39(5) or (6) of the A New Tax System (Family Assistance) Act 1999 in respect of an arrival in Australia that occurred before 1 January 2009; or
(ii) is eligible for maternity immunisation allowance under subsection 39(9) of the A New Tax System (Family Assistance) Act 1999 in respect of a death that occurred before 1 January 2009; and
(b) the individual makes a claim for the allowance before 1 January 2011; and
(c) apart from this subitem, subsection 39(4) of the A New Tax System (Family Assistance) (Administration) Act 1999 would apply to make the claim not effective;then subsection 39(4) of the A New Tax System (Family Assistance) (Administration ) Act 1999 does not apply in relation to the claim.
Subdivision B - Eligibility of individuals for maternity immunisation allowance where death occurs
SECTION 40 What happens if an individual eligible for maternity immunisation allowance dies
40
If:
(a) an individual is eligible for maternity immunisation allowance (the subject allowance ) in respect of a child; and
(b) the individual dies; and
(c) before the individual died, the subject allowance had not been paid to the individual (whether or not a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 had been made); and
(d) another individual makes a claim under that Part for payment of maternity immunisation allowance because of the death of the first-mentioned individual, stating that he or she wishes to become eligible for the subject allowance; and
(da) the claim is made:
(i) within 26 weeks after the death; or
(ii) within a further period allowed by the Secretary in special circumstances; and
(e) the Secretary considers that the other individual ought to be eligible for the subject allowance;the other individual is eligible for the subject allowance and no-one else is, or can become, eligible for or entitled to be paid that allowance.
HistoryS 40 amended by No 30 of 2003, s 3 and Sch 2 items 8 and 9, by substititung " the first-mentioned individual " for " a person " in para (d) and inserting para (da), effective 15 April 2003.
(Repealed by No 49 of 2012)
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