A New Tax System (Family Assistance) (Administration) Act 1999
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.
In this Act, unless the contrary intention appears:
AAT
(Repealed by No 38 of 2024)
AAT Act
(Repealed by No 38 of 2024)
AAT first review
(Repealed by No 38 of 2024)
AAT second review
(Repealed by No 38 of 2024)
AAT single review
(Repealed by No 38 of 2024)
ABN
(short for Australian Business Number) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
advance assessment day
, in relation to a family tax benefit advance, has the meaning given by subsection 35A(3) and paragraph 35B(3)(b).
(a) the Department; or
(b) the Human Services Department.
(c) (Repealed by No 48 of 2009)
(d) (Repealed by No 32 of 2011)
allocation rules
means the Minister's rules prescribed under section 198A.
amount of the entitlement
(Repealed by No 22 of 2017)
appropriate State/Territory body
(Repealed by No 125 of 2019)
appropriate State/Territory support agency
has the meaning given by subsection 204K(7).
approved centre based long day care service
(Repealed by No 22 of 2017)
approved child care service
has the meaning given by section 194G.
approved family day care service
(Repealed by No 22 of 2017)
approved in-home care service
(Repealed by No 22 of 2017)
approved occasional care service
(Repealed by No 22 of 2017)
approved outside school hours care service
(Repealed by No 22 of 2017)
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).
ART
means the Administrative Review Tribunal.
ART Act
means the Administrative Review Tribunal Act 2024.
ART child care provider review
has the meaning given by section 138.
ART Principal Registrar
means the Chief Executive Officer and Principal Registrar of the ART.
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.
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.
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.
CCB %
(Repealed by No 22 of 2017)
CCS quarter
has the meaning given by subsection 67CE(3).
CCS reconciliation conditions
has the meaning given by section 103A.
ceases
(Repealed by No 22 of 2017)
ceases to be enrolled
has the meaning given by section 200B.
centrelink program
has the same meaning as in the Human Services (Centrelink) Act 1997.
Chief Executive Centrelink
has the same meaning as in the Human Services (Centrelink) Act 1997.
Chief Executive Medicare
has the same meaning as in the Human Services (Medicare) Act 1973.
child care decision
has the meaning given by section 103.
child care provider decision
has the meaning given by subsection 138(4).
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.
civil penalty order
(Repealed by No 22 of 2017)
civil penalty provision
has the same meaning as in the Regulatory Powers Act.
complying written arrangement
has the meaning given by subsection 200B(3).
decision
has the same meaning as in the ART Act.
departure authorisation certificate
means a certificate under Subdivision D of Division 5 of Part 4.
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).
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.
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.).
eligibility rules
(Repealed by No 22 of 2017)
emergency or disaster
has the meaning given by subsection 205C(2).
enrolled
has the meaning given by section 200B.
enrolment notice
means a notice given under subsection 200A(1), (2) or (3).
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).
Executive Director
(Repealed by No 38 of 2010)
executive officer
(Repealed by No 22 of 2017)
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
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.
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).
fee reduction decision
has the meaning given by subsection 67EB(2).
financial institution
means a corporation that is an ADI for the purposes of the Banking Act 1959.
first deadline
has the meaning given by section 103B.
flexible PPL day
has the same meaning as in the Paid Parental Leave Act 2010.
FTB advance debt
has the meaning given by section 71A.
guidance and appeals panel
has the same meaning as in the ART Act.
guidance and appeals panel proceeding
has the same meaning as in the ART Act.
(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)
Human Services Department
means Services Australia.
Human Services Minister
(Repealed by No 104 of 2020)
immunisation grace period
has the meaning given by subsection 67CD(9).
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).
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).
(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).
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).
large centre-based day care provider
(Repealed by No 66 of 2022)
large child care provider
has the meaning given by section 4A.
large long day care centre operator
(Repealed by No 22 of 2017)
listed child care information provision
has the meaning given by section 219UB.
maximum amount
, in relation to a family tax benefit advance, has the meaning given by section 35D.
maximum PPL period
(Repealed by No 4 of 2023)
medicare program
has the same meaning as in the Human Services (Medicare) Act 1973.
meets the information requirements
has the meaning given by subsection 67CD(10).
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.
minimum taxable income %
(Repealed by No 53 of 2008)
non-corporate Commonwealth entity
has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
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.
official
has the same meaning as in the PublicGovernance, Performance and Accountability Act 2013.
parental leave pay
has the same meaning as in the Paid Parental Leave Act 2010.
penalty unit
(Repealed by No 31 of 2014)
permissible staff discount
has the meaning given by subsection 201BA(1).
person with management or control
has the meaning given by section 194F.
personal information
has the same meaning as in the Privacy Act 1988.
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)
(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.
(a) has the meaning given by subsection 194A(1); and
(b) is affected by sections 230A and 230B.
registered carer
(Repealed by No 22 of 2017)
Regulatory Powers Act
means the Regulatory Powers (Standard Provisions) Act 2014.
related providers
has the meaning given by subsection 4A(3).
relevant arrangement
has the meaning given by subsection 200A(3).
reporting period
(Repealed by No 22 of 2017)
schooling %
(Repealed by No 22 of 2017)
second deadline
has the meaning given by section 103C.
Secretary
means the Secretary of the Department.
social security law
has the same meaning as in the Social Security Act 1991.
SSAT
(Repealed by No 60 of 2015)
SSAT member
(Repealed by No 60 of 2015)
starts to be enrolled
has the meaning given by section 200B.
statement period
has the meaning given by subsection 201D(7).
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.
tax file number
has the same meaning as in Part VA of the Income Tax Assessment Act 1936.
(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.
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.
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.
withholding amount
has the meaning given by subsection 67EB(3).
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)
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.
3(4A)
(Repealed by No 22 of 2017)
3(4B)
(Repealed by No 22 of 2017)
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.
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.
SECTION 3A 3A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
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.
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.
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.
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.
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.
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.
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
required by the Secretary; and
(iii) be accompanied by any documents;
(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.
7(3)
A claim is not effective if it is made before the early claim day.
SECTION 7A Bank account details orstatement 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 bank account 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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
13(2)
(Repealed by No 45 of 2000)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
16(3)
(Repealed by No 45 of 2000)
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.
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.
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.
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 claimIf:
(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 entitlementIf 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.
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 of this Division, 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.
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.
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)).
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 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.
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.
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.
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.
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).
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.
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).
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.
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.
22(2)
The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.
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.
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
the period of 7 days beginning on the day the Secretary considers appropriate, and each successive period of 7 days.
(ii) is the subject of a determination in force under subsection (3B);
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.
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.
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).
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.
23(4)
(Repealed by No 95 of 2002)
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.
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.
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.
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 a claim 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)
24(3)
(Repealed by No 45 of 2000)
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.
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.
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.
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.
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.
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.
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.
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 is pending
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.
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.
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.
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.
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.
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.
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 took place;
the Secretary must vary the determination to undo the effect mentioned in subsection (5).
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).
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
the recalculated amount; or
(ii) within such further period as the taxpayer is allowed under Subdivision D of Division 1 of this Part;
(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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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 theonly 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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
This section applies if:
(a) a determination is in force in an income year under which a claimant is entitled tobe 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.
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:
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).
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.
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.
31E(4)
This section may have more than one application in relation to the claimant during the income year.
31E(5)
In this section:
(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.
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.
Subdivision CA - Non-payment of family tax benefit for non-lodgment of tax returns
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).
32AA(2)
This section is subject to section 32AE.
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.
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).
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.
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).
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
whichever occurs first.
(iii) subsection (6A) or (7) applies;
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.
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:
(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.
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.
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).
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.
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).
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).
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.
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:
(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.
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.
This section applies if 3 or more variations under subsection 28(2) have been made in relation to a claimant.
Claimant
32AE(2)
The claimant is not entitled to be paid family tax benefit (worked outon 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).
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.
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.
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).
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.
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.
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.
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.
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.
32AE(11)
A determination made under subsection (8) or (9) is not a legislative instrument.
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.
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.
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).
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 andafter 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).
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.
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).
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).
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).
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).
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).
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.
32A(3)
Subsection (2) does not apply for the purposes of working out the amount of a clean energy advance.
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.
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.
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.
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.
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.
(Repealed by No 14 of 2014)
(Repealed by No 14 of 2014)
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.
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.
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.
(Repealed by No 14 of 2014)
(Repealed by No 14 of 2014)
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.
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.
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.
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.
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 tothe 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)
32P(2)
The relevant reconciliation time is the end of the relevant 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.
(Repealed by No 108 of 2006)
SECTION 32R 32R Designated date
(Repealed by No 14 of 2014)
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.
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.
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.
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).
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.
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.
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.
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).
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.
(Repealed by No 96 of 2014)
(Repealed by No 96 of 2014)
(Repealed by No 96 of 2014)
(Repealed by No 96 of 2014)
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.
The only persons who can make a claim in accordance with this Division are individuals.
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
required by the Secretary; and
(iii) is accompanied by any documents;
(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
for the 6-month period mentioned in paragraph 36(1)(d) of the Family Assistance Act; 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;
(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.
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 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
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).
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 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
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).
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.
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 the end 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.
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.
"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).
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
(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 leavepay 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.
(iii) the Secretary revokes the determination under section 25 of that Act;
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.
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.
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.
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.
A determination comes into force when it is made and remains in force at all times afterwards.
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.
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.
(Repealed by No 49 of 2012)
(Repealed by No 70 of 2013)
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.
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 isin 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.
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.
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).
(Repealed by No 70 of 2013)
(Repealed by No 70 of 2013)
(Repealed by No 22 of 2017)
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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.
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.
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.
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.

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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
If an effective claim is made, the Secretary must determine the claim in accordance with this Subdivision. If a claimis not effective, it is taken not to have been made.
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.
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.
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.
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.
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.
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.
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.
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.
A determination under this Division comes into force when it is made and remains in force at all times afterwards.
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.
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 the past 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.
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.
65KP(4)
This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
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.
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.
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 family supplement 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).
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.
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.
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.
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
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.
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).
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.
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).
The only persons who can make a claim for CCS in accordance with this Division are individuals.
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.
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.
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.
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.
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.
67BF(3)
The Secretary's rules may prescribe other circumstances in which a claim is taken not to have been made.
(Repealed by No 125 of 2019)
(Repealed by No 125 of 2019)
(Repealed by No 125 of 2019)
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 that effect.
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:
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.
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)).
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.
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
(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:
(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;
(i) unless subparagraph (ii) applies - at least 26 consecutive weeks; or
(e) the Secretary is satisfied that the individual:
(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;
(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.
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
(b) continues in effect until any of the following happens:
(ii) not more than 28 days before the day the claim was made; and
(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).
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.
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)).
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;
(b) any of the following applies:
(ii) the Secretary made a request of the individual under section 67FE no more than 28 days ago; and
(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;
(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.
(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;
[ 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.
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.
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)
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.
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)
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)).
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 paid CCS 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.
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.
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;
(b) the provider has given the Secretary a report for the 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:
(ii) a determination made by the Secretary under section 85CE of the Family Assistance Act; and
(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.
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)).
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.
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.
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.
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.
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).
67DC(7)
A notice under subsection (2) is not a legislative instrument.
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.
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).
67DD(6)
A notice under subsection (2) is not a legislative instrument.
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.
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:
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.
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 | subsection 67CE(4) |
3 | a decision on review under Part 5 of this Act or under the ART 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 ART 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 |
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).
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 undersubsection (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)).
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
(b) if the Secretary so directs - in a different way.
(ii) if the amount is to be paid to another person under paragraph (1)(b) - the other person; or
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).
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).
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).
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.
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.
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.
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.
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.
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.
(Repealed by No 125 of 2019)
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.
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.
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.
Generally, a payment of CCS or ACCS is protected, subject to some exceptions related to debt management and payment to nominees.
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).
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).
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.
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).
(Repealed by No 22 of 2017)
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.
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.
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.
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.
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 .
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.
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.
(Repealed by No 22 of 2017)
(Repealed by No 22 of 2017)
(Repealed by No 22 of 2017)
(Repealed by No 22 of 2017)
(Repealed by No 22 of 2017)
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.
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
(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.
(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
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.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.
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
(c) the individual incurs a debt under subsection 71B(1) or 71C(1) for the CCS/ACCS amount.
(ii) failed to comply with the family assistance law; and
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.
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.
(Repealed by No 22 of 2017)
(Repealed by No 22 of 2017)
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;
(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;
(iii) the approval of the provider in respect of the service is suspended; and
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.
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.
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.
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
is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(ii) all or part of the 2002-03 income year (if the relevant determination is covered by paragraph (2)(c));
(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
is or was (however described) changed, revoked, set aside, or superseded by another determination; and
(ii) all or part of the 2002-03 income year (if the relevant determination was covered by paragraph (2)(c));
(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.
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.
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.
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.
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 waspaid, 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.
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.
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.
If: (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 paidto 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.
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.
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
in relation to that contravention;
(ii) against section 11.4 or 11.5 of the Criminal Code;
the recipient and the other person are jointly and severally liable to pay the debt.
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.
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.
77(4)
(Repealed by No 55 of 2016)
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.
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.
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.
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).
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.
78D(2)
The Minister may, by legislative instrument, determine circumstances for the purposes of paragraph (1)(f).
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.
The Minister may, by legislative instrument, determine guidelines relating to the operation of the provisions of this Division dealing with interest charge.
(Repealed by No 55 of 2016)
(Repealed by No 55 of 2016)
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.
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).
82(2)
(Repealed by No 22 of 2017)
82(3)
In this section:
(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.
SECTION 83 83 Deductions from family assistance (general)
(Repealed by No 45 of 2000)
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.
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 is to 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.
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.
84A(2)
The Secretary may determine that the whole or a part of the entitlement is to be set off against the debt.
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.
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.
SECTION 85 85 Deductions from group payments made to approved child care service
(Repealed by No 45 of 2000)
(Repealed by No 55 of 2016)
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)
87(4)
(Repealed by No 55 of 2016)
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.
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.
(Repealed by No 79 of 2011)
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.
(Repealed by No 55 of 2016)
88(3)
(Repealed by No 47 of 2001)
88(4)
(Repealed by No 55 of 2016)
88(5)
(Repealed by No 55 of 2016)
88(6)
(Repealed by No 55 of 2016)
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.
SECTION 90 90 Time limits on recovery action under section 89
(Repealed by No 55 of 2016)
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.
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.
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.
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).
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.
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.
91(5)
In this section:
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.
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.
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.
92A(2)
Subsection (1) does not apply to an entitlement to be paid CCS or ACCS.
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.
92A(4)
The consenting person may revoke the consent at any time.
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.
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.
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.
In this Division:
debt
means a debt recoverable by the Commonwealth under Division 2.
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.
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.
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.
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
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.
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.
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.
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
whichever ends last; and
(ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
(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)
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 ART
100(2)
If the Secretary has agreed to settle proceedings before the ART 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.
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.
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.
100(7)
(Repealed by No 108 of 2006)
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.
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.
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 decision is made).
102(3)
(Repealed by No 108 of 2006)
Division 5 - Departure prohibition orders
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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 personwas 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.
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.
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.
102N(2)
This section has effect subject to Chapter III of the Constitution.
The jurisdiction of a court under section 102N must be exercised by a single Judge.
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.
Applications may be made to the ART for review of a decision of the Secretary under section 102E, 102H or 102J.
102R(2)
Despite any provision of Part 5, that Part does not apply in relation to any decision of the Secretary under this Division.
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.
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.
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.
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.
For the purposes of this Division, Australia , when used in a geographical sense, includes the external Territories.
(Repealed by No 5 of 2011)
Note:
This Part does not apply in relation to any decision of the Secretary under Division 5 of Part 4 (about departure prohibition orders).
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.
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 ART 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.
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.
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).
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.
103B(5)
Subsection (4) does not prevent the Secretary from allowing an individual a longer period in accordance with this section.
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.
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.
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 ART
105(2)
The Secretary may review the original decision even if an application has been made to the ART for review in relation to 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.
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.
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.
105A(3)
Paragraph (2)(f) does not limit the scope of the review.
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.
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.
105B(2A)
The consequencesare:
(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).
Definition
105B(3)
In this section:
quarter
means a period of 3 months beginning on 1 July, 1 October, 1 January or 1 April.
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.
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.
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
(b) the review is conducted:
(ii) the individual's activity test result for the CCS fortnight; or
(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 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.
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).
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.
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.
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.
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
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.
105E(7)
To avoid doubt, subsections (5) and (6) have effect despite Part 1 of Schedule 2 to the Family Assistance Act.
(Repealed by No 22 of 2017)
106(1A)
(Repealed by No 22 of 2017)
106(1B)
(Repealed by No 22 of 2017)
106(2)
(Repealed by No 22 of 2017)
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.
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.
106(6)
(Repealed by No 22 of 2017)
106(7)
(Repealed by No 22 of 2017)
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.
If the Secretary makes a review decision under section 105 to vary or substitute a decision after a person has applied to the ART for a review in relation to the decision, the Secretary must give written notice of the review decision to the ART Principal Registrar.
106B(2)
A contravention of this section in relation to a review decision does not affect the validity of the review decision.
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)
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.
…
107(1A)
Subsection (1AA) does not apply if the review was undertaken under section 105 because of the operation of section 105A.
107(2)
(Repealed by No 22 of 2017)
107(3)
(Repealed by No 22 of 2017)
107(3AA)
(Repealed by No 22 of 2017)
107(3AB)
(Repealed by No 22 of 2017)
107(3A)
(Repealed by No 36 of 2018)
107(3B)
(Repealed by No 36 of 2018)
107(3C)
(Repealed by No 36 of 2018)
107(3D)
(Repealed by No 36 of 2018)
107(4)
(Repealed by No 22 of 2017)
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.
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.
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
(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
(iv) the Chief Executive Medicare in the exercise of a delegated power; 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
(f) a decision under section 199B to publicise information; or
(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
(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.
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.
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.
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.
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.
(Repealed by No 146 of 2006)
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.
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.
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.
109A(2)
If the person makes an application undersubsection (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
(b) arrange for an authorised review officer (see section 109C) to do so.
(iii) set it aside and substitute a new decision; or
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.
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 doneso; and (b) the person applies to the ART 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 ART.
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.
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.
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.
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.
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.
109B(4)
(Repealed by No 22 of 2017)
The Secretary must authorise officers to be authorised review officers for the purposes of this Division.
109C(2)
(Repealed by No 104 of 2020)
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) - 90 days after the applicant is notified of the decision; and (b) otherwise - 52 weeks after the applicant is notified of the decision.
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.
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)
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
(c) the family assistance is family tax benefit and the application for review is made:
(ii) within 90 days after the relevant person was notified by the Commissioner of the outcome of the review; or
(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 90 days after the relevant person was notified by the Registrar of the outcome of the review.
(d)-(g) (Repealed by No 36 of 2018)
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.
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.
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.
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 90 days 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 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.
109D(6)
In this section:
determination decision
(Repealed by No 22 of 2017)
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).
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.
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.
Section 105C applies to a decision on review under section 109A of a child care decision in relation to section 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.
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.
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)
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.
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).]
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).]
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
(c) the application for review is made:
(ii) within 90 days after the relevant person was notified by the Commissioner of the outcome of the review; or
(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 90 days after the relevant person was notified by the Registrar of the outcome of the review.
(d)-(g) (Repealed by No 36 of 2018)
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.
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.
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.
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.
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.
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.
109G(2)
(Repealed by No 22 of 2017)
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)
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 ART Act, apply to the ART 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)
109H(2)
A contravention of subsection (1) in relation to a review decision does not affect the validity of the decision.
If a person is dissatisfied with a decision of a decision reviewer under Subdivision B of Division 1, the person may apply to the ART for review of the decision (an "ART review") (certain decisions are excepted).
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 rules relating to reviews by the ART are mainly in the ART Act, but the operation of that Act is modified in some ways by this Division.
The ART Act allows a person to appeal to the Federal Court on a question of law from a decision of the ART.
If the decision reviewer has affirmed, varied or set aside a decision under Subdivision B of Division 1, application may be made to the ART for review ( ART review ) of the decision as affirmed or varied or, if it has been set aside and another decision substituted, the decision so substituted.
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 ART for review (also ART review ) of the decision.
111(1B)
(Repealed by No 146 of 2006)
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 ART; (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)
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 ART review unless the individual has met the CCS reconciliation conditions for the relevant income year.
111(2B)
(Repealed by No 125 of 2019)
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.
SECTION 111A Time limit for application for ART review
90 day time limit for most kinds of decision
111A(1)
Subject to subsections (2) and (2A), an application for ART review of a decision, other than a decision covered by subsection (3A) or excepted under subsection (5), must be made no later than 90 days after the person is notified of the decision.
111A(2)
The ART may, if it determines that there are special circumstances that prevented the person from making an application for ART review of a decision of the kind referred to in subsection (1) within the 90 days mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the ART determines to be appropriate.
111A(2A)
An application for ART 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 90 days 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 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.
111A(3)
Subsections (1), (2) and (2A) apply despite sections 18 and 19 of the ART Act (which deal with when applications for review may be made).
52 week time limit for certain provider debt decisions
111A(3A)
An application by a provider for ART 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.
111A(3B)
Subsection (3A) applies despite sections 18 and 19 of the ART Act (which deal with when applications for review may be made)
No time limit for excepted decisions
111A(4)
Section 18 (when to apply for review) of the ART Act does not apply in relation to an application for ART review of a decision that is excepted under subsection (5).
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)).
For the purposes of ART review of a decision, a reference in the ART Act to the decision-maker for the decision is taken to be a reference to the Secretary.
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.
Subsection 32(2) (ART may stay operation or implementation) of the ART Act does not apply in relation to a proceeding for ART review.
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 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.
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.
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 ART 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.
113(2)
(Repealed by No 22 of 2017)
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 ART dismisses the application for ART review of the adverse decision; or
(ii) the ART determines the ART review of the adverse decision; or
(iii) the Secretary revokes the declaration.
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)
If a declaration under section 113 is in force in relation to a decision for which an application for ART review has been made, the President of the ART must take reasonable steps to ensure that the decision is reviewed as quickly as possible.
If an officer varies or substitutes a decision after an application has been made for ART review of the decision, the application is taken to be an application for ART review of the decision as varied or substituted.
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.
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 ART does so, the Secretary must take reasonable steps to comply with the request.
116(3)
Nothing in this section prevents the operation of subsection 28(4) of the ART Act (which allows the ART to shorten the period for giving documents).
The parties to an ART review of a care percentage decision include, in addition to the parties referred to in subsection 22(1) of the ART 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.
(Repealed by No 3 of 2022)
Repealed by No 3 of 2022
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.
119(2)
A person commits an offence if: (a) the ART gives the person a notice under subsection (1); and (b) the person fails to comply with the notice.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
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).
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 the purposes of the review, request the Secretary to exercise the Secretary's powers under section 154 or 157A.
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).
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.
Subject to subsection (4) and the outcome of any application under section 294 of the ART Act, a party to an ART review must bear any expenses incurred by the party in connection with the review.
122(2)
The ART 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 ART review; and (b) specified in the determination.
122(3)
If the ART arranges for the provision of a medical service in relation to a party to an ART review, the ART may determine that the Commonwealth is to pay the costs of the provision of the service.
122(4)
If the ART makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.
If: (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
(b) that review involved (wholly or partly) a review of a determination to which a care percentage decision relates;
(ii) a decision on application referred to in section 131D of the ART Act in relation to a child support decision; and
then, despite section 54 of the ART Act, the ART must not, on ART 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).
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: (a) assess the amount of the payment; or (b) ask the Secretary to assess the amount of the payment.
124(2)
Despite subsection (1), the ART must ask the Secretary to assess, in accordance with any directions or recommendations of the ART, the amount of CCS or ACCS an individual or provider is entitled to be paid, if: (a) on ART review, the ART:
(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
(b) on ART review, the ART:
(ii) considers that the individual or provider is entitled to be paid a different amount of CCS or ACCS; or
(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.
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 ART's decision on the review.
If: (a) a person makes an application for ART 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 90 days after the person was given notice of the original decision; and (c) the ART makes a decision under section 105 of the ART Act to vary or substitute the original decision; and (d) the decision of the ART will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;
then, despite subsections 108(4) and (5) of the ART Act, the date of effect of the decision of the ART 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)
125(2)
The ART may, if satisfied that there are special circumstances that prevented the applicant from making an application within 90 days, determine that subsection (1) applies as if the reference to 90 days were a reference to such longer period as the ART determines to be appropriate.
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.
If: (a) the ART makes a decision on ART 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 ART'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 ART'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.
(Repealed by No 38 of 2024)
If: (a) on ART review of a decision, the ART sets the decision aside under section 105 of the ART Act; and (b) the Secretary or the ART, 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 ART may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of the family assistance law.
(Repealed by No 38 of 2024)
(Repealed by No 132 of 2015)
(Repealed by No 38 of 2024)
(Repealed by No 38 of 2024)
(Repealed by No 38 of 2024)
(Repealed by No 38 of 2024)
(Repealed by No 38 of 2024)
(Repealed by No 38 of 2024)
(Repealed by No 38 of 2024)
(Repealed by No 38 of 2024)
This section applies to a decision on ART 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.
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.
The Secretary may agree, in writing, with other parties to settle proceedings before the ART if the proceedings are an ART review and they relate to the recovery of a debt.
137(2)
If proceedings are settled and the Secretary gives the ART 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.
Favourable changes affecting individuals
137A(1)
A decision on ART 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
(c) the CCS fortnight that includes the week started more than 28 days before the earliest of the following events:
(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
(i) the individual notified or gave the information or produced the document;
(ii) the Secretary otherwise became aware of the information;
(iii) the ART otherwise became aware of the information.
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 ART 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
(c) the CCS fortnight that includes the week started more than 28 days before the earliest of the following events:
(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
(i) the provider notified or gave the information or produced the document;
(ii) the Secretary otherwise became aware of the information;
(iii) the ART otherwise became aware of the information.
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.
A decision on ART 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.
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 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.
137B(3)
A decision on ART 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.
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 ART for review ( ART child care provider review ) of the decision of the Secretary or 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 ART for review (also an ART child care provider review ) of the decision.
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 .
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).
(Repealed by No 14 of 2025)
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.
If an officer varies or substitutes a decision after an application has been made to the ART for ART child care provider review of the decision, the application is taken to be an application for ART child care provider review of the decision as varied or substituted.
139(2)
Subsection (1) does not apply if the application is a guidance and appeals panel application.
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.
If: (a) on ART child care provider review of a decision, the ART sets the decision aside under section 105 of the ART 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.
The Secretary may agree, in writing, with other parties to settle proceedings before the ART if the proceedings are an ART child care provider review and they relate to the recovery of a debt.
141(2)
If proceedings are settled and the Secretary gives the ART 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.
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 60 of 2015)
(Repealed by No 22 of 2017)
(Repealed by No 22 of 2017)
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.
This section applies if: (a) a person applies to the ART, under section 89 of the Child Support (Registration and Collection) Act 1988, for review of a decision (the original decision ); and (aa) the application for review of the original decision is not a guidance and appeals panel application; 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
(c) the application for review of the original decision was made more than 90 days 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.
(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
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 90 days in that paragraph were a reference to such longer period as the Secretary determines to be appropriate.
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)
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.
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.
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.
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.
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.
154(4A)
(Repealed by No 22 of 2017)
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.
154(5A)
(Repealed by No 22 of 2017)
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).
SECTION 154A 154A Getting details of adjusted taxable income
(Repealed by No 14 of 2014)
(Repealed by No 14 of 2014)
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.
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.
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.
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-timestudent 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.
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)
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.
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).
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.
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.
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.
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.
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.
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.
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).
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.
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.
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).
Division 1A - Use of tax file numbers
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.
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.
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).
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.
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.
taxation officer
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.
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.
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.
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.
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).
162(4)
(Repealed by No 108 of 2006)
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.
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.
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).
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.
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.
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
information; and
(iii) otherwise makes use of;
(b) the person is not authorised or required under:
(i) the family assistance law; or
(ii) the Social Security Act 1991; or
to make the record, disclosure or use of the information that is made by the person; and
(iii) the Social Security (Administration) Act 1999;
(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.
164(2)
Strict liability applies to the element of anoffence 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.
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.
165(2)
Strict liability applies to paragraph (1)(b).
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.
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.
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.
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.
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.
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.
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.
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).
(Repealed by No 49 of 2019)
(Repealed by No 109 of 2014)
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)
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.
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).
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.
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.
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.
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.
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.
175(2)
Paragraph (1)(a) is taken to include a reference to a provider or an individual who obtains a fee reduction amount.
SECTION 175AA 175AA Obtaining child care rebate for a quarter if ineligible
(Repealed by No 22 of 2017)
(Repealed by No 22 of 2017)
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
(b) the person does so:
(iii) under section 205A or 205C (business continuity payments); and
(i) by means of impersonation; or
(ii) by fraudulent means.
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).
A person who contravenes a provision of Subdivision B commits an offence punishable on conviction by imprisonment for a term not exceeding 12 months.
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.
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.
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.
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 OFFENCESA 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)
(Repealed by No 137 of 2001)
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
that relates to this Act.
(ii) section 6 of the Crimes Act 1914;
[ 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.
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 offencesDespite 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 SERVICESApplication
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.
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.
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.
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);
(e) for a large child care provider - the provider is financially viable and is likely to remain so; and (ea) the Secretary is satisfied that it is appropriate for the provider to be approved having regard to the matters mentioned in section 194EA (quality and safety considerations); and (f) the provider satisfies any other criteria prescribed by the Minister's rules.
(ii) each person that the provider, or a person mentioned in subparagraph (i), is responsible for managing; and
Note:
See section 194F for the definition of person with management or control .
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);
(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:
(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
(i) the persons mentioned in paragraphs (c) and (d);
(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:
(ii) each person that a person mentioned in subparagraph (i) is responsible for managing; and
(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;
(va) the matters mentioned in section 194EA (quality and safety considerations);
(vi) any other matter prescribed by the Minister's rules;
(g) the service satisfies any other criteria prescribed by the Minister's rules.
(vii) any other matter the Secretary considers relevant; and
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.
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 orcontrol.
Note:
See section 194F for the definition of person with management or control .
For the purpose of paragraph 194C(ea) and subparagraph 194D(f)(va), the matters are the following: (a) the provider's record of demonstrating commitment to, and achievement of, high quality education and care; (b) any previous assessment of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service) done in accordance with the National Quality Standard (within the meaning of the Education and Care Services National Law), including any relevant rating level for the service; (c) any notifications of the following by the provider in respect of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service):
(i) serious incidents that have occurred or are occurring;
(d) any complaints of the following received by the provider, or that the Secretary is otherwise aware of, in respect of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service);
(ii) occurrences of circumstances that could have resulted in the occurrence of a serious incident;
(i) serious incidents alleged to have occurred;
(e) for notifications or complaints referred to in paragraphs (c) and (d) in relation to a serious incident that the Secretary reasonably believes has occurred, is occurring or is likely to occur - the nature of the serious incident; (f) any previous or current conditions relating to quality or safety imposed on the provider's approval under section 195E or 195F; (g) any previous or current conditions relating to quality or safety imposed on child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service) under section 195E or 195F; (h) the provider's record of non-compliance (if any) with the family assistance law; (i) the provider's record of non-compliance (if any) with laws of the Commonwealth or a State or Territory relating to quality or safety; (j) whether the quality and safety of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service) has improved over time and the extent of any improvement; (k) any other matter prescribed by the Minister's rules; (l) any other matter relating to quality or safety that the Secretary considers relevant.
(ii) serious incidents alleged to be occurring;
194EA(2)
For the purposes of this section, serious incident has the meaning prescribed by the Minister's rules.
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.
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.
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.
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 isa 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.
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.
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.
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.
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.
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.
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.
The Secretary may at any time assess whether a provider is complying with the conditions for continued approval of the provider.
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).
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.
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.
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.
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).
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 noticeof:
(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).
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).
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)
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)
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.
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 procedure in 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).
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).
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.
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.
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.
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.
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.
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).
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.
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.
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 thevariation 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.
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.
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 itis 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.
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.
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.
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.
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.
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.
If any of the following events occur, the Secretary may publicise the event in any way the Secretary thinks appropriate: (aaa) the Secretary refuses under subsection 194B(7) to approve a provider in respect of a child care service; (aab) the Secretary imposes under subsection 195F(2) a condition for continued approval on an approved provider; (a) the Secretary does one or more of the things mentioned in subsection 195H(1); (aa) the Secretary refuses under subsection 196B(4) to vary an approved provider's approval by adding a service to the approval; (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); (e) an infringement notice has been issued to a person under Part 5 of the Regulatory Powers Act in relation to an alleged contravention of a civil penalty provision of this Act.
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); (ca) if the information relates to a condition imposed under subsection 195F(2) - the condition or details of the condition; (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 details of the non-compliance; and
(e) if the information relates to a suspension under subsection 197A(1) or section 197AB:
(iv) the day (if any) when each thing done ceases to have effect;
(i) the day when the suspension takes effect; and
(f) if the information relates to a suspension, cancellation or variation under subsection 197B(1):
(ii) the day (if any) when the suspension ceases to have effect;
(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
(g) if the information relates to a cancellation or variation under section 197L - the day when the cancellation or variation takes effect; (h) if the information relates to the issuing of an infringement notice - details of the infringement notice.
(iii) if the information relates to a suspension - the day (if any) when the suspension ceases to have effect;
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.
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.
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.
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.
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.
[ 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.
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.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.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.
(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.
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.
(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.
(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.
(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 notice must be in the form, and in the manner or way, approved by the Secretary.
97B Debts arising under this Part may be set off against payments required by this Part[ 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.
(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.
(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.
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).
(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.
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.
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.
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 of approval
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.
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).
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.
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
(b) ceases to be enrolled for care by that service when the earliest of the following events happens:
(ii) the service provides care to the child in the circumstances referred to in subsection (4); and
(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.
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).
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;
(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.
(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
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.
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).
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.
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.
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.
201A(2C)
The Secretary may give more than one direction under subsection (2A) extending the period referred to in subsection (1).
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.
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.
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).
[ CCH Note: S 201B(1) will be substituted by No 31 of 2025, s 3 and Sch 1 item 20, effective 1 January 2026. S 201B(1) will read:
]
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 child care service to a child in a week, must take all reasonable steps to ensure that:
(a) the individual pays the provider the amount referred to in subsection (1AB) of this section; and
(b) subject to any decision or direction of the Secretary under subsection (1A) or (1B) of this section applicable to the individual or the provider (as the case requires) - the individual makes the payment in accordance with subsection (1AA) of this section.
[ CCH Note: S 201B(1AA) and 201B(1AB) and will be inserted by No 31 of 2025, s 3 and Sch 1 item 20, effective 1 January 2026. S 201B(1AA) and 201B(1AB) will read:
]
201B(1AA)
For the purposes of paragraph (1)(b), a payment is made in accordance with this subsection in the following circumstances:
(a) for all providers - the payment is made using an electronic funds transfer system;
(b) for sessions of care provided by a family day care service or an in home care service - the payment is made:
(i) directly to the credit of a bank account that is nominated by the provider, and maintained directly by the provider or a person with management or control of the provider; or
(ii) using the payment gateway service, nominated by the provider, of a third party supplier of management software to the provider;
(c) for sessions of care provided by services other than a family day care service or an in home care service - the payment may be made using the payment gateway service, nominated by the provider, of a third party supplier of management software to the provider.
Amount to be paid
201B(1AB)
The amount is 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 fee reduction 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).
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.
[ CCH Note: S 201B(1A) will substituted by No 31 of 2025, s 3 and Sch 1 item 20, effective 1 January 2026. S 201B(1A) will read:
Exceptions to requirements for making payments
201B(1A)
If the Secretary is satisfied that circumstances prescribed by the Minister's rules exist in relation to a particular individual, the Secretary may decide that one or both of the requirements referred to in paragraph (1AA)(a) or (b) of this section do not apply to the individual.
No 31 of 2025, s 3 and Sch 1 item 21 contain the following saving provisions:
21 Saving provisions
]
Decisions by the Secretary
(1)
Subitem (2) applies if a decision by the Secretary under subsection 201B(1A) of the A New Tax System (Family Assistance) (Administration) Act 1999 was in effect immediately before the commencement of this item.
(2)
The decision continues in effect on and after that commencement, in accordance with the decision, as if the repeal and substitution of subsection 201B(1A) of the A New Tax System (Family Assistance) (Administration) Act 1999 by this Part had not happened.
Directions by the Secretary
(3)
Subitem (4) applies if a direction by the Secretary under subsection 201B(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999 was in effect immediately before the commencement of this item.
(4)
The direction continues in effect on and after that commencement, in accordance with the direction, as if the repeal and substitution of subsection 201B(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999 by this Part had not happened.
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.
[ CCH Note: S 201B(1B) will substituted by No 31 of 2025, s 3 and Sch 1 item 20, effective 1 January 2026. For saving provisions, see note under s 201B(1A). S 201B(1B) will read:
]
201B(1B)
If the Secretary is satisfied that exceptional circumstances exist in relation to a particular child care service, the Secretary may direct that one or both of the requirements referred to in paragraph (1AA)(a) or (b) of this section do not apply to the making of a payment of all, or a part, of an amount to the provider of the service.
201B(1C)
A direction under subsection (1B) is not a legislative instrument.
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.
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.
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).
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).
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).
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
(c) a person who, at any time during the financial year, is entitled to receive 15% or more of the dividends paid by:
(ii) if the provider consists of more than one person - any of those persons;
(i) the provider; or
(d) a person who, at any time during the financial year, is owed a debt by the provider; (e) a person who:
(ii) if the provider consists of more than one person - any of those persons;
(i) acts, or is accustomed to act; or
in accordance with the directions, instructions or wishes of, or in concert with:
(ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
(iii) the provider; or
(f) a person who directs or instructs:
(iv) if the provider consists of more than one person - any of those persons;
(i) the provider; or
to act in accordance with those directions or instructions; (g) a person, if:
(ii) if the provider consists of more than one person - any of those persons;
(i) the provider; or
acts, or is accustomed to act, so as to give effect to the first-mentioned person's wishes; (h) a person with whom:
(ii) if the provider consists of more than one person - any of those persons;
(i) the provider; or
acts, or is accustomed to act, in concert; (i) a person, if:
(ii) if the provider consists of more than one person - any of those persons;
(i) the provider; or
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:
(ii) if the provider consists of more than one person - any of those persons;
(i) the provider; or
is intended or expected to act in concert under a contract or an arrangement or understanding (whether formal or informal).
(ii) if the provider consists of more than one person - any of those persons;
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
(c) be given:
(ii) if a different period is prescribed by the Minister's rules - the prescribed period; and
(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).
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.
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.
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.
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).
204B(1A)
For the purposes of paragraph (1)(b), the care may be a session of care.
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.
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;
(d) if the Secretary agrees to a later day - the later day agreed by the Secretary.
(ii) the last day of the financial year in which the CCS fortnight to which the report relates starts; or
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).
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.
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)).
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.
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).
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.
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.
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.
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.
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)).
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.
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.
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.
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.
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.
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.
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).
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.
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.
(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.
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.
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.
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.
If a person who is a nominee by virtue of an appointment under section 219TB or 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)
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.
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.
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.
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.
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 theinformation, 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
PART 8C - REGULATORY 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);
(c) paragraphs 197A(1)(b), (c) and (d); (d) a listed child care information provision (see section 219UB).
(vi) section 203A;
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;
(d) the Secretary is the relevant chief executive; and (e) each of the following is a relevant court:
(iii) a magistrate; and
(i) the Federal Court of Australia;
(ii) the Federal Circuit and Family Court of Australia (Division 2).
Delegation by authorised applicant
219UA(4A)
The authorised applicant may, in writing, delegate the powers and functions mentioned in subsection (4B) to an officer within the meaning of this Act who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, in the agency.
219UA(4B)
The powers and functions that may be delegated under subsection (4A) are as follows: (a) powers and functions under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) of this section; (b) powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a) of this subsection.
219UA(4C)
A person exercising powers or performing functions under a delegation under subsection (4A) must comply with any directions of the authorised applicant.
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).
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 to give 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 |
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).
Subsections (3) to (5) apply if: (a) an authorised person enters premises during:
(i) if a child care service is operated at the premises - the operating hours for the service; or
(b) the authorised person's entry is not made under a monitoring warrant issued under section 32 of the Regulatory Powers Act, as that section applies in relation to this Act; and (c) the occupier of the premises has not consented to the authorised person's entry; and (d) the Secretary has authorised the authorised person's entry for the purposes of this paragraph; and (e) before entering the premises, the authorised person:
(ii) if a child care service is not operated at the premises - ordinary business hours; and
(i) announces that they are authorised to enter the premises; and
(ii) shows their identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(iii) gives any person at the premises an opportunity to allow entry to the premises.
219UCA(2)
For the purposes of paragraph (1)(d), the Secretary may, in writing, authorise an authorised person to enter premises in accordance with this section if: (a) the Secretary is satisfied that entry is necessary for the purposes of exercising monitoring powers (within the meaning of the Regulatory Powers Act) or powers under section 24 of that Act in relation to:
(i) a provision that is subject to monitoring under Part 2 of that Act; or
(b) if an in home care service is operated at the premises - the Secretary is satisfied that the consent of the occupier to the entry cannot reasonably be obtained.
(ii) information that is subject to monitoring under Part 2 of that Act; and
No requirement to obtain consent
219UCA(3)
Despite paragraph 18(2)(a) and sections 24 and 25 of the Regulatory Powers Act, the authorised person is not required to obtain the consent of the occupier of the premises to the authorised person's entry.
219UCA(4)
However, if consent is not obtained, the authorised person must not exercise powers under section 22 of the Regulatory Powers Act in relation to a related provision.
Note:
For related provisions, see subsection 219UA(3).
Responsibility to provide facilities and assistance
219UCA(5)
The occupier of premises to which this section relates, or another person who apparently represents the occupier, must provide: (a) an authorised person entering the premises in accordance with this section; and (b) any person assisting the authorised person;
with all reasonable facilities and assistance for the effective exercise of their powers under Part 2 of the Regulatory Powers Act.
Fault-based offence
219UCA(6)
A person commits an offence if: (a) the person is subject to subsection (5); and (b) the person fails to comply with that subsection.
Penalty: 60 penalty units.
Civil penalty
219UCA(7)
A person is liable to a civil penalty if the person contravenes subsection (5).
Civil penalty: 30 penalty units.
Meaning of operating hours
219UCA(8)
For the purposes of this section, operating hours has the meaning prescribed by the Minister's rules.
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.
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 ofAustralia (Division 2).
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
(b) the Secretary suspects or believes that the person can give information relevant to the application.
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
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.
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.
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.
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.
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.
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.
Delegation of Secretary's powers
221(1)
Subject to this section, the Secretary may delegate to an officer all or any of the Secretary's powers under the family assistance law other than the power to make Secretary's rules under subsection 85GB(2) of the Family Assistance Act.
Note:
The powers of the Secretary as the authorised applicant and relevant chief executive for the purposes of provisions of Part 2 (monitoring) of the Regulatory Powers Act may also be delegated under section 219UA of this Act.
221(2)
(Repealed by No 46 of 2016)
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.
221(4)
The Secretary must not delegate to an officer, other than an SES employee or acting SES employee, the Secretary's powers under any of the following provisions: (a) section 203A (power to require financial information); (aa) section 203C (power to engage an expert to carry out an independent audit of an approved provider); (ab) subsection 219UCA(2) (authorising entry to premises without consent); (b) subsection 219UD(1) (power to appoint authorised person); (c) subsection 219WA(3) (power to appoint infringement officer).
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.
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).
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.
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.
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.
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.
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.
(Repealed by No 22 of 2017)
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.
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.
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.
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 contraventionof 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.
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.
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.
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.
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 person if 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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).
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.
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)
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.
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.
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 ART, 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.
235(5)
(Repealed by No 45 of 2000)