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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
A New Tax
System (Family Assistance) (Administration) Bill
1999
No. ,
1999
(Family and Community
Services)
A Bill for an Act to implement A
New Tax System by providing assistance to families, and for related
purposes
ISBN: 0642 403503
Contents
A Bill for an Act to implement A New Tax System by
providing assistance to families, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the A New Tax System (Family Assistance)
(Administration) Act 1999.
(1) Sections 1 and 2 and subsection 236(5) commence on the day on which
this Act receives the Royal Assent.
(2) The remaining provisions of this Act commence immediately after the
commencement of the A New Tax System (Family Assistance) Act
1999.
(1) In this Act, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
AAT Act means the Administrative Appeals Tribunal Act
1975.
agency means:
(a) the Department; or
(b) the Commonwealth Services Delivery Agency; or
(c) the Australian Taxation Office; or
(d) the Health Insurance Commission.
approved centre based long day care service means a centre
based long day care service in respect of which an approval as a centre based
long day care service is in force under Division 1 of Part 8.
approved child care service means:
(a) an approved centre based long day care service; or
(b) an approved family day care service; or
(c) an approved occasional care service; or
(d) an approved outside school hours care service.
approved family day care service means a family day care
service in respect of which an approval as a family day care service is in force
under Division 1 of Part 8.
approved occasional care service means an occasional care
service in respect of which an approval as an occasional care service is in
force under Division 1 of Part 8.
approved outside school hours care service means an outside
school hours care service in respect of which an approval as an outside school
hours care service is in force under Division 1 of Part 8.
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
eligibility rules means rules made under subsection
206(1).
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.
Executive Director means the Executive Director of the Social
Security Appeals Tribunal.
Family Assistance Act means the A New Tax System (Family
Assistance) Act 1999.
family assistance law means any one or more of the
following:
(a) this Act;
(b) the Family Assistance Act;
(c) regulations under this Act.
family tax benefit advance means the advance mentioned in
Division 2 of Part 3.
head of an agency means:
(a) in the case of the Department—the Secretary; or
(b) in the case of the Commonwealth Services Delivery Agency—the
Chief Executive Officer of the Agency; or
(c) in the case of the Australian Taxation Office—the Commissioner
of Taxation; or
(d) in the case of the Health Insurance Commission—the Managing
Director of the Commission.
income tax refund means an amount payable to a person in
respect of an overpayment of:
(a) income tax imposed by the Income Tax Act 1986; or
(b) Medicare levy payable in accordance with Part VIIB of the Income
Tax Assessment Act 1936; or
(c) an amount payable by the person by an assessment made under Part IV of
the Income Tax Assessment Act 1936 because of:
(i) subsection 106U(1) of the Higher Education Funding Act 1988;
or
(ii) subsection 12ZN(1) of the Student Assistance Act
1973.
income tax return has the same meaning as in the Income
Tax Assessment Act 1997.
instalment amount, in relation to family tax benefit,
has the meaning given by subsection 23(2).
instalment period:
(a) in relation to family tax benefit—has the meaning given by
subsections 23(2) and (3); and
(b) in relation to child care benefit—has the meaning given by
subsection 42(4) or 47(2), as the case requires, of the Family Assistance
Act.
officer means an officer of an agency and includes:
(a) the head of the agency; 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.
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.
protected information means:
(a) information about a person that is or was held in the records of the
Department or the Commonwealth Services Delivery Agency; or
(b) information about a person obtained by an officer under the family
assistance law that is or was held in the records of the Australian Taxation
Office or 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.
registered carer means an individual approved as a registered
carer under Division 2 of Part 8.
Secretary means the Secretary to the Department.
SSAT means the Social Security Appeals Tribunal.
tax file number has the same meaning as in Part VA of the
Income Tax Assessment Act 1936.
TFN claim person, in relation to a claim under Subdivision A
of Division 1 of Part 3, means:
(a) the claimant; and
(b) if the claim is for payment of family tax benefit by
instalment—the claimant’s partner (if any) at the time of the claim;
and
(c) if the claim is for payment of family tax benefit for a past
period—any partner of the claimant during the past period.
TFN determination person means:
(a) in relation to a determination under which the claimant is entitled to
be paid family tax benefit by instalment—the claimant or any partner of
the claimant at any time since the determination was made; or
(b) in relation to a determination under which the claimant is entitled to
be paid family tax benefit for a past period—the claimant or any partner
of the claimant during the past period.
(2) Expressions used in this Act that are defined in the Family Assistance
Act have the same meaning as in that 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, by the use of a telecommunications system or other electronic
equipment.
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.
The only persons who can make a claim in accordance with this Subdivision
are individuals or approved care organisations.
(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
(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 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.
(1) This section sets out the tax file number requirement that must be
satisfied in relation to a claim for the purposes of paragraph 7(2)(b) (which
states what is required for certain claims to be effective).
(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
(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.
(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
(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
(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
(7) The Secretary may determine that the requirement in subsection (2)
does not apply to a TFN claim person if:
(a) the person is 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).
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),
29(2) or 30(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
(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), 29(2) or 30(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 not be made after the end of
the next income year
(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 but the claim is
made after the end of the next income year.
Claim must be accompanied by instalment claim in some
circumstances
(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.
(4) A claim for payment of family tax benefit for a past period is not
effective if:
(a) the period occurs in the income year 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 or service pension; 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 or service pension; 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.
Claim cannot be made in same income year as tax instalment deduction
reduced on account of family tax benefit
(5) A claim for payment of family tax benefit for a past period is not
effective if:
(a) at any time before a determination is made on the claim, the Secretary
becomes aware that, during some or all of the past period, an employment
declaration:
(i) was in force under the Income Tax Regulations; and
(ii) stated that the claimant, or the claimant’s partner, was
eligible for family tax benefit and intended to make a claim, after the end of
each income year in which the declaration is in force, for payment of family tax
benefit for the period during which the declaration was in force; and
(b) the claim is made in the income year in which the past period
occurs.
Entitlement must not already have been determined, or be awaiting
determination, on a previous claim
(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
(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.
(1) A claimant may withdraw or vary a claim before the claim is
determined.
(2) The claimant may only do so in a manner determined by the
Secretary.
(3) If a claim is withdrawn, it is taken never to have been
made.
(1) If an effective claim is made, the Secretary must determine the claim
in accordance with this section and sections 16 to 19. If a claim is not
effective, it is taken not to have been made.
Information to be taken into account
(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).
If:
(a) the claim is one for payment of family tax benefit for a past period;
and
(b) the past period falls in the income year (the past period income
year) before the one in which the claim is made; and
(c) the claimant is required to lodge an income tax return for the past
period income year; and
(d) at the time the claim is made, an assessment has not been made under
the Income Tax Assessment Act 1936 of the tax payable on the
claimant’s taxable income for the past period income year;
the Secretary can only determine the claim if the assessment has been
made.
Statement that TFN claim person does not know what his or her tax file
number is etc.
(1) If a TFN claim person makes a statement of the kind set out in
subsection 8(4), the Secretary can only determine the claim concerned
if:
(a) within 28 days after the claim is made, the Commissioner of Taxation
tells the Secretary the person’s tax file number; or
(b) 28 days pass after the claim is made without the Commissioner of
Taxation telling the Secretary that the person has no tax file number.
Statement that an application for a tax file number is
pending
(2) If a TFN claim person makes a statement of the kind set out in
subsection 8(5), the Secretary can only determine the claim concerned
if:
(a) within 28 days after the claim is made, the Commissioner of Taxation
tells the Secretary the person’s tax file number; or
(b) 28 days pass after the claim is made without the Commissioner of
Taxation telling the Secretary that:
(i) the person has not applied for a tax file number; or
(ii) an application by the person for a tax file number has been refused;
or
(iii) the person has withdrawn an application for a tax file
number.
(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.
(1) This section applies if the claim is one for payment of family tax
benefit by instalment.
Instalments where normal eligibility
(2) If:
(a) the Secretary is satisfied that the claimant is, at the time the
Secretary makes the determination on the claim, eligible for family tax benefit
in accordance with Subdivision A or C of Division 1 of Part 3 of the Family
Assistance Act; and
(b) subsection (3) does not apply;
the Secretary must determine that the claimant is entitled to be paid
family tax benefit for each day on which the determination is in force, at the
daily rate at which the Secretary considers the claimant to be
eligible.
Instalments where pattern of care eligibility
(3) If the Secretary is satisfied that, at the time of making the
determination on the claim, a pattern of days on which an FTB child of the
claimant is in the claimant’s care exists and is likely to continue to
exist in the future, such that the claimant will be eligible for family tax
benefit in respect of the child in accordance with Subdivision A of Division 1
of Part 3 of the Family Assistance Act only on particular days, the
Secretary must determine that the claimant is entitled to be paid family tax
benefit for those particular days while the determination is in force, at the
daily rate at which the Secretary considers the claimant will be
eligible.
Additional entitlement in subsection (2) and (3) cases
(4) If:
(a) the Secretary is satisfied as mentioned in subsection (2) or (3);
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
children
(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
children
(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.
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.
If:
(a) the claim is one for payment of family tax benefit by single
payment/in substitution because of the death of another individual;
and
(b) the Secretary is satisfied that the claimant is eligible for family
tax benefit under section 32 or 33 of the Family Assistance Act;
the Secretary must determine that the claimant is entitled to be paid the
family tax benefit.
If the Secretary is not satisfied as mentioned in section 16, 17 or 18,
the Secretary must determine:
(a) if the determination is on a claim for payment of family tax benefit
by instalment—that the claimant is not entitled to be paid family tax
benefit for each day on which the determination is in force; or
(b) in any other case—that the claimant is not entitled to be paid
family tax benefit for the past period or because of the death of the other
individual, as the case requires.
(1) If:
(a) an individual’s rate of family tax benefit is required to be
calculated for the purpose of making a determination under this Division;
and
(b) information about an amount needed for the calculation of the rate is
not available (for example, because the taxable income of the individual or
another individual cannot be known until after the end of the relevant income
year); and
(c) the individual gives the Secretary an estimate of the amount needed;
and
(d) the Secretary considers the estimate to be reasonable;
the Secretary may determine the individual’s rate of family tax
benefit on the basis of the estimate.
(2) If the individual does not give the Secretary an estimate of the
amount needed that the Secretary considers reasonable, the rate cannot be
calculated and section 19 applies.
(1) Subject to this section, a determination under this Division comes
into force when it is made and remains in force at all times
afterwards.
Effect of later determination on certain instalment
determinations
(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
(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 or service pension; 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.
(1) The Secretary must give notice of a determination under this
Subdivision to the claimant, stating:
(a) whether the claimant is entitled to be paid 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.
(2) The determination is not ineffective to any extent if the requirements
of subsection (1) are not complied with.
(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 and in such manner as the Secretary considers
appropriate.
Instalment amount and instalment period
(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 such day as the Secretary considers
appropriate in relation to the claimant, or class of claimants in which the
claimant is included; and
(b) each successive period of 14 days.
Changing the day on which later instalment periods begin
(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.
Making of payments to third parties
(4) The Secretary may pay the whole or a part of an amount, that would
otherwise be required by subsection (1) to be paid to the claimant, to someone
other than the claimant, on behalf of the claimant.
Regulations may provide for timing and manner of making
payments
(5) The regulations may make provision for the time at which, and the
manner in which, an amount is to be paid for the purposes of this section. If
such regulations are made, the Secretary must pay the amount in accordance with
the regulations.
Section subject to other provisions
(6) This section is subject to Part 4 (Overpayments and debt recovery) and
sections 226 to 229 (which deal with other debts etc.).
(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.
Making of payments to third parties
(2) The Secretary may instead pay the whole or a part of the amount to
someone other than the claimant, on behalf of the claimant.
Regulations may provide for timing and manner of making
payments
(3) The regulations may make provision for the time at which, and the
manner in which, an amount is to be paid for the purposes of this section. If
such regulations are made, the Secretary must pay the amount in accordance with
the regulations.
Section subject to other provisions
(4) This section is subject to Part 4 (Overpayments and debt recovery) and
sections 226 to 229 (which deal with other debts etc.).
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 the regulations, 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.
(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 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
(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.
(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
(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
(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)
(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 that TFN claim person does not know what his or her tax file
number is etc.
(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:
(i) the claimant gives the Secretary a statement by the TFN determination
person of the kind set out in subsection 26(3); and
(ii) the Commissioner of Taxation tells the Secretary that the person has
no tax file number;
the consequence in subsection (5) applies.
Statement that an application for a tax file number is
pending
(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:
(i) the claimant gives the Secretary a statement by the TFN determination
person of the kind set out in subsection 26(4); and
(ii) the Commissioner of Taxation tells the Secretary that the person has
not applied for a tax file number, that an application by the person for a tax
file number has been refused or that the person has withdrawn an application for
a tax file number;
the consequence in subsection (5) applies.
Variation of determination
(5) For the purposes of subsection (1), (3) or (4), 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
(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 concerned:
(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).
(1) This section applies if:
(a) a determination under section 16 or 17 is in force at, or was in force
before, a particular time; and
(b) there are one or more days (the cancellation days)
before the particular time in respect of which the following conditions are
satisfied:
(i) the cancellation days occur in the income year (the cancellation
income year) that began 2 years before the beginning of the income year
in which the particular time occurs;
(ii) the claimant is entitled to be paid family tax benefit under the
determination for the cancellation days;
(iii) the claimant, or the claimant’s partner at the particular time
(if he or she was also the claimant’s partner at some time in the
cancellation income year), or both, are required to lodge an income tax return
for the cancellation income year but have not done so by the particular
time;
(iv) by the particular time, an assessment has not been made under the
Income Tax Assessment Act 1936 of the taxable income for the cancellation
income year of everyone to whom subparagraph (iii) applies.
Consequence of section applying
(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
(3) If:
(a) after the Secretary varies the determination under subsection (2), an
assessment is made under the Income Tax Assessment Act 1936 for the
cancellation income year for everyone:
(i) who was required to lodge an income tax return as mentioned in
subparagraph (1)(b)(iii); and
(ii) in respect of whom an assessment had not been made before the
determination was varied; and
(b) the Secretary is satisfied that the claimant was eligible for an
amount of family tax benefit for the cancellation days;
the Secretary must again vary the determination so that it has the effect
that, for the cancellation days, the claimant is entitled to be paid the lesser
of:
(c) that amount of family tax benefit; and
(d) the amount that the claimant was entitled to be paid before the
variation under subsection (2) was made.
(1) This section applies if:
(a) a determination is in force on a particular day under which the
claimant is entitled to be paid family tax benefit by instalment; and
(b) the Secretary, in order to make a decision about the eligibility, or
daily rate of eligibility, of the claimant for family tax benefit on either or
both of the following:
(i) the particular day or any later day;
(ii) any day or days in the past when the determination was in
force;
requires the claimant or the claimant’s partner under Division 1 of
Part 6 to give information or produce documents; and
(c) the claimant or the claimant’s partner refuses or fails to
comply with the requirements.
Consequence of section applying
(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 information or documents
(3) If:
(a) under subsection (2), 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).
(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
(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.
(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).
(1) If:
(a) a determination is made under section 16; and
(b) after the determination is made, a change in the claimant’s
circumstances occurs; and
(c) the claimant is entitled to be paid family tax benefit under the
determination at some time after the change; and
(d) when the Secretary becomes aware of the change, the Secretary
considers that, if he or she were making the determination immediately after the
change, he or she would make it with different effect than the actual
determination would have from that time;
the Secretary must, subject to subsection (2), vary the determination so
that it had, and will have, that different effect at all times after the
change.
Beneficial variations only to have limited effect
(2) If:
(a) the Secretary does not become aware of the change in the
claimant’s circumstances until after the end of the income year (the
second income year) following the one in which the change
occurred; and
(b) the claimant did not notify the Secretary of the change 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 change.
Section 27, 28, 29 and 30 variations prevail
(3) If:
(a) when the variation under this section takes place, a variation of the
determination is in force under section 27, 28, 29 or 30; and
(b) the variation under that section has effect for any period when the
variation under this section would have the effect that the claimant is entitled
to be paid family tax benefit;
the variation under that section prevails over the variation under this
section.
(1) The Secretary must give notice of any variation of a determination
under this Subdivision to the claimant, stating the effect of the variation and
that the claimant may apply for review of the decision involved in the manner
set out in Part 5.
(2) The variation is not ineffective to any extent if the requirements of
subsection (1) are not complied with.
(1) The Secretary must determine that an individual is entitled to be paid
a family tax benefit advance for a standard advance period if:
(a) on the advance assessment day (see subsection (2)):
(i) the individual is entitled to be paid family tax benefit by
instalment; and
(ii) the individual’s Part A rate is worked out using Part 2 of
Schedule 1 to the Family Assistance Act; and
(iii) the individual’s Part A rate is equal to or exceeds twice the
individual’s FTB advance rate; and
(b) the individual has made a request to the Secretary for the payment of
a family tax benefit advance for that period; and
(c) the request is made before the end of that period.
(2) An individual’s advance assessment
day for a standard advance period is:
(a) if paragraph (b) does not apply—the first day in the standard
advance period; or
(b) the day on which the individual becomes entitled to be paid family tax
benefit by instalment if:
(i) the individual is not entitled to be paid family tax benefit by
instalment on the first day in the standard advance period; and
(ii) the individual becomes entitled to be paid family tax benefit by
instalment during the standard advance period; and
(iii) the individual becomes so entitled because of the birth of a
child.
(3) An individual’s request may operate:
(a) for a particular standard advance period; or
(b) for a particular standard advance period and all subsequent standard
advance periods.
(4) If paragraph (3)(b) applies to an individual’s request, the
individual may withdraw the request at any time for standard advance periods for
which the individual has not been paid a family tax benefit advance.
(5) An individual cannot become entitled to be paid more than one family
tax benefit advance for a standard advance period.
(1) The amount of the family tax benefit advance is worked out using the
formula:
where:
number of days means the number of days in the
individual’s family tax benefit advance period.
(2) Subject to subsections (3), (4) and (5), an individual’s
family tax benefit advance period is the standard advance
period.
(3) If:
(a) an individual makes a request under section 33; and
(b) it is not practicable on the first day in the standard advance period
to adjust the individual’s payments of family tax benefit to take account
of the family tax benefit advance that will result from the request;
the individual’s family tax benefit advance period starts at the
beginning of the first instalment period for which it is practicable to adjust
the individual’s payment of family tax benefit to take account of the
family tax benefit advance.
(4) The Secretary may determine that an individual’s family tax
benefit advance period is to end on a particular day that is earlier than the
end of the standard advance period if the Secretary is satisfied that it is
appropriate for the period to end on that day having regard to:
(a) circumstances affecting the individual’s eligibility for family
tax benefit; and
(b) circumstances affecting the rate of the family tax benefit that the
individual is entitled to be paid.
(5) If a determination is made under subsection (4), the
individual’s family tax benefit advance period ends on the day determined
by the Secretary.
Subject to Part 4 (Overpayments and debt recovery) and sections 226 to
229 (which deal with other debts etc.), 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.
The only way that a person can become entitled to be paid maternity
allowance or maternity immunisation allowance 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.
(1) An individual (the claimant) may make a claim for
payment of:
(a) maternity allowance or maternity immunisation allowance in normal
circumstances; or
(b) maternity allowance or maternity immunisation allowance because of the
death of another person.
Form etc. of claim
(2) To be effective, a claim must:
(a) be made in a form and manner; and
(b) contain any information; and
(c) be accompanied by any documents;
required by the Secretary.
“Normal circumstances” entitlement must not already have
been determined, or be awaiting determination, on a previous claim
(1) A claim for payment of maternity allowance or maternity immunisation
allowance 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).
“Normal circumstances” maternity allowance claim must be
made within limited period after birth etc. of child
(2) Subject to subsection (3), a claim for payment of maternity allowance
in normal circumstances is not effective if it is made later than 26 weeks
after:
(a) if the circumstances covered by the claim involve eligibility under
any of subsections 36(2) to (4) of the Family Assistance Act—the birth of
the child mentioned in that subsection; or
(b) if the circumstances covered by the claim involve eligibility under
subsection 36(5) of that Act—the time the child mentioned in that
subsection is entrusted to the care of the claimant.
Extension of 26 week period in subsection (2)
(3) If the Secretary is satisfied that the claimant was unable to make a
claim for payment of maternity allowance in normal circumstances because of
severe illness associated with the birth of the child concerned, the Secretary
may extend the period of 26 weeks mentioned in subsection (2) to such longer
period as the Secretary considers appropriate.
“Normal circumstances” maternity immunisation allowance
claim must be made within limited period after birth etc. of child
(4) A claim for payment of maternity immunisation allowance in normal
circumstances is not effective if it is made after:
(a) if the child mentioned in section 39 of the Family Assistance Act is
not stillborn but dies before reaching the age of 2 years—the later
of:
(i) 13 weeks after the death of the child; and
(ii) 2 years after the birth of the child; or
(b) in any other case—2 years after the birth of the
child.
“Bereavement” entitlement must not already have been
determined, or be awaiting determination, on a previous claim
(5) A claim for payment of maternity allowance or maternity immunisation
allowance because of the death of another person is not effective if the
claimant has previously made such a claim because of the death of that person
(whether or not the claim has yet been determined).
(1) A claimant may withdraw or vary a claim before the claim is
determined.
(2) The claimant may only do so in a manner determined by the
Secretary.
(3) If a claim is withdrawn, it is taken never to have been
made.
(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
(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” maternity allowance
determination because of ineligibility
(3) If:
(a) the claim is one for payment of maternity allowance in normal
circumstances; and
(b) at the time the determination would otherwise be made, the claimant is
not eligible for maternity allowance in accordance with Subdivision A of
Division 2 of Part 3 of the Family Assistance Act; and
(c) the reason the claimant is not eligible is not that there was no child
born to whom the claim could relate; and
(d) the time the determination would otherwise be made is not more than 13
weeks after:
(i) if the circumstances covered by the claim involve eligibility under
any of subsections 36(2) to (4) of the Family Assistance Act—the birth of
the child mentioned in that subsection; or
(ii) if the circumstances covered by the claim involve eligibility under
subsection 36(5) of that Act—the time the child mentioned in that
subsection is entrusted to the care of the claimant; and
(e) the Secretary is satisfied, at the time the determination would
otherwise be made, that the claimant is likely to become eligible for maternity
allowance in accordance with Subdivision A of Division 2 of Part 3 of the Family
Assistance Act by the end of the 13 weeks mentioned in paragraph (d);
the Secretary must not determine the claim until after the time mentioned
in subsection (4).
(4) The time for the purposes of subsection (3) is:
(a) if the claimant becomes eligible for maternity allowance in accordance
with Subdivision A of Division 2 of Part 3 of the Family Assistance Act in
respect of the child to whom the claim relates before the end of the 13
weeks mentioned in paragraph (3)(d)—the time when the claimant becomes so
eligible; or
(b) in any other case—the end of the 13 weeks mentioned in paragraph
(3)(d).
Deferral of “normal circumstances” maternity immunisation
allowance determination because of ineligibility
(5) If:
(a) the claim (the immunisation allowance claim) is one for
payment of maternity immunisation allowance in normal circumstances;
and
(b) the immunisation allowance claim is accompanied by a claim for payment
of maternity allowance in normal circumstances in respect of the child (the
subject child) to whom the immunisation allowance claim relates;
and
(c) at the time the determination would otherwise be made on the
immunisation allowance claim:
(i) the claimant is not eligible for maternity immunisation allowance in
accordance with Subdivision A of Division 3 of Part 3 of the Family Assistance
Act in respect of the subject child; and
(ii) the claimant is eligible for maternity allowance in accordance with
Subdivision A of Division 2 of Part 3 of the Family Assistance Act in
respect of the subject child; and
(iii) the claimant is eligible for family tax benefit in respect of the
subject child and the claimant’s Part A rate is greater than
nil;
the Secretary must not determine the claim until after the time mentioned
in subsection (6).
(6) The time for the purposes of subsection (5) is:
(a) if the claimant becomes eligible for maternity immunisation allowance
in accordance with Subdivision A of Division 3 of Part 3 of the Family
Assistance Act in respect of the subject child before the end of 2 years after
the subject child was born—the time when the claimant becomes so eligible;
or
(b) in any other case—2 years after the subject child was
born.
If:
(a) the claim is one for payment of maternity allowance or maternity
immunisation allowance in normal circumstances; and
(b) the Secretary is satisfied that the claimant is eligible
for:
(i) maternity allowance in accordance with Subdivision A of Division 2 of
Part 3 of the Family Assistance Act; or
(ii) maternity immunisation allowance in accordance with Subdivision A of
Division 3 of that Act;
as the case requires, in respect of the child to whom the claim
relates;
the Secretary must determine that the claimant is entitled to be paid the
allowance.
If:
(a) the claim is one for payment of maternity allowance or maternity
immunisation allowance because of the death of another person; and
(b) the Secretary is satisfied that the claimant is, in the circumstances
covered by the claim, eligible for:
(i) maternity allowance in accordance with Subdivision B of Division 2 of
Part 3 of the Family Assistance Act; or
(ii) maternity immunisation allowance in accordance with Subdivision B of
Division 3 of that Act;
as the case requires;
the Secretary must determine that the claimant is entitled to be paid the
allowance.
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 maternity
allowance or maternity immunisation allowance 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.
(1) The Secretary must give notice of the determination to the claimant,
stating:
(a) whether the claimant is entitled to be paid maternity allowance or
maternity immunisation allowance under the determination; and
(b) if the claimant is entitled—the amount of the allowance 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.
(2) The determination is not ineffective to any extent if the requirements
of subsection (1) are not complied with.
(1) Subject to this section, if the claimant is entitled to be paid
maternity allowance or maternity immunisation allowance, the Secretary must pay
the allowance to the claimant, at such time and in such manner as the Secretary
considers appropriate.
Making of payments to third parties
(2) The Secretary may instead pay the whole or a part of the allowance to
someone other than the claimant, on behalf of the claimant.
Regulations may provide for timing and manner of making
payments
(3) The regulations may make provision for the time at which, and the
manner in which, an allowance is to be paid for the purposes of this section. If
such regulations are made, the Secretary must pay the allowance in accordance
with the regulations.
Section subject to other provisions
(4) This section is subject to Part 4 (Overpayments and debt recovery) and
sections 226 to 229 (which deal with other debts etc.).
Basically, this Division provides for the making of regulations about how
individuals and approved child care services can become entitled to have
payments of child care benefit made, and how such payments are to be
made.
(1) The regulations may prescribe circumstances in which, and procedures
(which may require the making of claims) by which:
(a) individuals who are conditionally eligible for child care benefit by
instalment to an approved child care service in accordance with section 41 of
the Family Assistance Act are to be determined by the Secretary to be so
conditionally eligible; or
(b) individuals who are eligible for child care benefit by instalment to
an approved child care service in accordance with section 42 of that Act are to
be determined by the Secretary to be entitled to have child care benefit paid to
the service.
(2) If the regulations make provision in accordance with paragraph (1)(a),
the regulations may make provision for the conditional eligibility to be removed
if the child concerned does not, in specified circumstances, meet the
immunisation requirements.
The regulations may prescribe circumstances in which, and procedures
(which may require the making of claims) by which, individuals who are eligible
for child care benefit in respect of a session of care provided to a child by an
approved child care service in accordance with section 43 of the Family
Assistance Act are to be determined by the Secretary to be entitled to be paid
child care benefit.
The regulations may prescribe circumstances in which, and procedures
(which may require the making of claims) by which:
(a) approved child care services that are eligible for child care benefit
for sessions of care provided by the service to a child in accordance with
section 45 of the Family Assistance Act are to be determined by the Secretary to
be entitled to be paid child care benefit; or
(b) approved child care services that are conditionally eligible for child
care benefit by instalment in accordance with section 46 of that Act are to be
determined by the Secretary to be so conditionally eligible; or
(c) approved child care services that are eligible for child care benefit
by instalment in accordance with section 47 of that Act are to be determined by
the Secretary to be entitled to be paid child care benefit.
The regulations may prescribe circumstances in which, and procedures
(which may require the making of claims) by which, individuals who are eligible
for child care benefit in accordance with section 49 of the Family Assistance
Act are to be determined by the Secretary to be entitled to be paid child
care benefit.
The regulations may:
(a) prescribe circumstances in which, and procedures by which, individuals
may make claims stating that they wish to become eligible for an amount of child
care benefit in accordance with section 57 of the Family Assistance Act;
and
(b) prescribe circumstances in which, and procedures by which, individuals
who make such claims and become so eligible are to be determined by the
Secretary to be entitled to be paid the amount of the child care
benefit.
The regulations may make provision for the use of estimates of adjusted
taxable income in making determinations of entitlements relating to child care
benefit.
(1) If the regulations make provision in accordance with sections 49 to 53
for individuals or approved child care services to become entitled to be paid,
or to have paid, child care benefit, the regulations may make provision for the
amount, timing and manner of making of the payments.
(2) Without limiting subsection (1), regulations under that subsection may
provide for any individual who becomes entitled to be paid child care benefit to
nominate another individual to whom the benefit is to be paid, with the consent
of that other individual.
(1) The regulations may make provision for the variation, suspension or
cancellation of determinations made under the regulations.
Reconciliation process etc. changes to determinations
(2) Without limiting subsection (1), if the regulations make provision in
accordance with section 54 for the use of estimates of adjusted taxable income
in making determinations of entitlements relating to child care benefit, the
regulations may make provision for the variation, suspension or cancellation, as
part of a process of reconciliation of amounts after the end of the income year
concerned or in other situations, of the determinations once assessments have
been made of the taxable income.
Exemptions from reconciliation process etc. changes in “special
circumstances” rate cases
(3) Without limiting subsection (2), regulations for the purposes of that
subsection may provide, in specified circumstances, for exemptions in the case
of entitlements of approved child care services to be paid child care benefit,
or of individuals to have child care benefit paid to approved child care
services, in situations where the approved child care services have given
certificates under subsection 71(1) or (2), or the Secretary has made
determinations under subsection 71(4), of the Family Assistance Act (which deal
with child care benefit in special circumstances).
(1) The regulations may make provision for approved child care services,
that have been or will be paid amounts of child care benefit for sessions of
care that the services provide, to do either or both of the following:
(a) reduce or not charge the amounts that the services would otherwise
charge for the sessions;
(b) make payments to persons who have paid charges for the
sessions;
in order to pass the benefit of the child care benefit on to the persons
who pay or would be liable to pay the charges.
Receipts etc.
(2) If the regulations make provision in accordance with subsection (1),
the regulations may also make provision for the approved child care services to
give the person who pays or would otherwise pay the charges a receipt or other
document stating the following:
(a) the amount of the charges or that there were no charges;
(b) what the charges would have been if the reduction had not taken
place;
(c) how much child care benefit was passed on in reducing the
charges;
(d) any other information of a specified kind in relation to the sessions
of care the services provided.
Maintaining records
(1) The regulations may make provision for approved child care services to
maintain records of a specified kind that are relevant to one or more of the
following:
(a) the services’ eligibility for child care benefit under this
Act;
(b) the payments received by the services under this Act;
(c) the services’ compliance with the conditions for the continued
approval of the services;
(d) any other matters of a specified kind in relation to the
services.
Retaining records
(2) The regulations may make provision for approved child care services to
retain for a specified period any records that are required to be maintained by
regulations for the purposes of subsection (1).
Producing records
(3) The regulations may make provision for approved child care services to
produce to the Secretary in specified circumstances any records that are
required to be retained by regulations for the purposes of subsection (1)
.
Information about changes in circumstances
(1) The regulations may make provision for the giving of information to
the Secretary, by individuals or approved child care services who have become
entitled to be paid child care benefit, or to have child care benefit paid,
under the regulations, about changes in:
(a) circumstances that may be relevant to their entitlement; or
(b) their address.
Information about changes in service used
(2) If the regulations make provision in accordance with paragraph
49(1)(a) for the Secretary to determine that individuals are conditionally
eligible for child care benefit by instalment to an approved child care service,
the regulations may make provision for the individuals to advise the Secretary
of the name and address of any other approved child care service that begins to
provide sessions of care for the child.
Information about children cared for by services
(3) The regulations may make provision for approved child care services to
give the Secretary the following information, in a specified form and manner and
at a specified time:
(a) the names of all children to whom the services provided sessions of
care during specified periods;
(b) the number of hours in those sessions of care;
(c) the amount of child care benefit that the services have been or will
be paid in respect of those sessions of care and the children to whom the
amounts relate;
(d) any other information of a specified kind in relation to the
services.
(1) If the regulations make provision in accordance with section 49, 50,
52 or 53 for the making of claims in relation to child care benefit, the
regulations may make provision for individuals who are claimants, or partners of
claimants, to include in the claim, or in a document in a specified form given
to the Secretary together with the claim, a statement of any of the kinds set
out in subsection (2), (3) or (4).
Statement of tax file number
(2) The first kind of statement is a statement of the tax file number of
the individual.
Statement that individual does not know what his or her tax file number
is etc.
(3) The second kind of statement is a statement that the
individual:
(a) has a tax file number but does not know what it is; and
(b) has asked the Commissioner of Taxation to inform the individual of his
or her tax file number; and
(c) authorises the Commissioner of Taxation to tell the
Secretary:
(i) whether the individual has a tax file number; and
(ii) if the individual has a tax file number—that number.
Statement that an application for a tax file number is
pending
(4) The third kind of statement is a statement that the
individual:
(a) has an application for a tax file number pending; and
(b) authorises the Commissioner of Taxation to tell the
Secretary:
(i) if a tax file number is issued to the individual—that number;
or
(ii) if the application is refused—that the application has been
refused; or
(iii) if the application is withdrawn—that the application has been
withdrawn.
Exemption from requirement under subsection (1)
(5) If the regulations make provision in accordance with subsection (1),
the regulations may also make provision for the Secretary to determine that the
requirement mentioned in that subsection does not apply to partners of claimants
if the claimants cannot obtain from their partners:
(a) the tax file number of their partners; or
(b) a statement by the partners under subsection (2), (3) or
(4).
Consequences of failure to provide tax file number etc.
(6) If the regulations make provision in accordance with subsection (1),
the regulations may also make provision for determinations not to be made in
relation to the claims in specified circumstances where statements of the kind
mentioned in subsection (3) or (4) are made.
(1) If the regulations make provision for determinations to be
made:
(a) in accordance with paragraph 49(1)(a), that individuals are
conditionally eligible for child care benefit by instalment to an approved child
care service; or
(b) in accordance with section 50, 52 or 53, that individuals are entitled
to be paid child care benefit;
the regulations may make provision for the Secretary to request, but not
compel, the individuals to give the Secretary, within 28 days of the request
being made, a statement by the individuals, or by other individuals who are or
have been their partners, of any of the kinds mentioned in subsection 60(2), (3)
or (4).
(2) If the regulations make provision in accordance with subsection (1),
the regulations may also make provision for:
(a) in a paragraph (1)(a) case—the conditional eligibility to be
removed; or
(b) in a paragraph (1)(b) case—variation of the determination to
remove the entitlement;
in cases where the request is not complied with or other specified
circumstances exist in relation to the request.
Without limiting the power under subsection 236(1) for the regulations to
prescribe penalties for breaches of the regulations, the regulations may provide
for the Secretary to vary determinations made in accordance with regulations
under this Subdivision in specified circumstances where information is not
provided, or other things are not done, in accordance with regulations under
this Subdivision.
Without limiting sections 49 to 59, the regulations may make provision
for the following:
(a) the giving of notice that determinations made under regulations for
the purposes of this Subdivision have been made;
(b) the content of such notice;
(c) the period in which determinations made under regulations for the
purposes of this Subdivision are to be in force;
(d) the reduction of any entitlements to payments of child care benefit
under such determinations on account of debts in respect of child care benefit
owed by the individuals or approved child care services to the
Commonwealth;
(e) the making to approved child care services of advance payments to be
set off against later entitlements in relation to payments of child care
benefit;
(f) any other matter incidental or otherwise related to anything about
which regulations can be made under this Division.
(1) If, during the whole or part of an instalment period, a determination
under regulations in accordance with paragraph 49(1)(a) is in force, the
approved child care service concerned must give the Secretary, during the next
instalment period, the statement, details and any other information mentioned in
paragraph 42(1)(b) of the Family Assistance Act.
(2) A person who, without reasonable excuse, contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 60 penalty
units.
(1) If, during the whole or part of an instalment period, a determination
under regulations in accordance with paragraph 51(b) is in force, the approved
child care service concerned must give the Secretary, during the next instalment
period, the statement, details and any other information mentioned in paragraph
47(1)(b) of the Family Assistance Act.
(2) A person who, without reasonable excuse, contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 20 penalty
units.
(1) Payments of the following are absolutely inalienable, whether by way
of, or in consequence of, sale, assignment, charge, execution, bankruptcy or
otherwise:
(a) family tax benefit;
(b) family tax benefit advances;
(c) maternity allowance;
(d) maternity immunisation allowance;
(e) child care benefit;
(f) if regulations in accordance with paragraph 63(e) provide for advance
payments to be set off as mentioned in that paragraph—those advance
payments.
(2) Subsection (1) has effect subject to:
(a) subsections 23(4) and 47(2), and regulations in accordance with
subsection 55(2) (about payment of a person’s family assistance to someone
else on behalf of the person); and
(b) section 84 (about deductions from a person’s family assistance
to repay a debt of the person); and
(c) section 92 (about a person consenting to deductions from the
person’s family assistance to repay the debt of someone else);
and
(d) section 226 (about making of deductions from family assistance for
payment to the Commissioner of Taxation); and
(e) section 227 (about setting off a family assistance entitlement against
a tax liability); and
(f) section 228 (about setting off a person’s entitlement to arrears
of family assistance against a debt of the person); and
(g) section 229 (about a person consenting to deductions from the
person’s entitlement to arrears of family assistance to repay the debt of
another person).
(1) If:
(a) a person has an account with a financial institution; and
(b) payments of any of the kinds mentioned in subsection 66(1) are being
paid, or have been paid, to the credit of the account; and
(c) a court order in the nature of a garnishee order comes into force in
respect of the account;
the court order does not apply to the saved amount (if any) in the
account.
(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.
(1) For the purposes of this Part, if an amount of child care benefit is
paid to an approved child care service pursuant to a claim by a person, the
amount is taken to have been paid to either:
(a) the person who made the claim; or
(b) if, at the time the amount is paid, another person is, in accordance
with the regulations, liable for repayment of debts under this Act in relation
to the child care benefit—that other person.
(2) For the purposes of this Part, an amount of family assistance is taken
to be paid to a person if that amount is applied against a liability of that
person or another person for:
(a) a primary tax; or
(b) a debt under this Act or the Social Security Act
1991.
For the purposes of this Part, a reference to an amount being paid to an
approved child care service includes a reference to an amount that, at the time
when it was paid, was paid to an approved child care service even if:
(a) the service is no longer approved; or
(b) the service no longer operates the service concerned.
If an amount has been paid by way of family assistance, 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—debt generally owed by
person
(1) Subject to subsection (2), if:
(a) an amount has been paid to a person by way of family assistance in
respect of a period or event; and
(b) the person was not entitled to the family assistance in respect of
that period or event;
the amount so paid is a debt due to the Commonwealth by the
person.
Child care benefit (debts owed by approved child care
service)
(2) If:
(a) child care benefit is paid on behalf of a person to an approved child
care service in relation to an FTB child of the person or the person’s
partner; and
(b) the payment is in respect of a period after the service is no longer
providing care for the child;
the amount so paid:
(c) is a debt due to the Commonwealth by the service; and
(d) is not a debt due to the Commonwealth by the person under subsection
(1).
Duplicate instalments—debt generally owed by person
(3) Subject to subsection (4), if:
(a) an amount has been paid to a person by way of an instalment of family
assistance; and
(b) another amount (the later amount) is paid to the person
in respect of the same instalment; and
(c) the later amount is not a payment of arrears; and
(d) the later amount would not otherwise be a debt due to the
Commonwealth;
the later amount is a debt due to the Commonwealth by the person.
Duplicate instalments—modified effect of subsection (3) taking
into account payments to approved child care service
(4) If the first amount and the later amount were both paid to the same
approved child care service on a person’s behalf, the later amount is a
debt due to the Commonwealth by the service, not the person.
Overpayment
(5) If:
(a) an amount (the received amount) has been paid to a
person by way of family assistance; and
(b) the received amount is greater than the amount (the correct
amount) of family assistance that should have been paid to the person
under the family assistance law;
the difference between the received amount and the correct amount is a debt
due to the Commonwealth by the person.
Childcare benefit paid in special circumstances because of false
statement or misrepresentation to service
(6) If:
(a) an individual knowingly makes a false statement or misrepresentation
to:
(i) an approved child care service; or
(ii) an officer; and
(b) an amount of child care benefit is paid for a session of care provided
by the service to an FTB child of the individual or the individual’s
partner; and
(c) because of the false statement or false representation:
(i) the service is eligible for child care benefit for the session of
care; or
(ii) the rate of child care benefit for the session of care is an amount
certified by the service under subsection 71(1) or (2) of the Family Assistance
Act; or
(iii) the rate of child care benefit for the session of care is an amount
determined under subsection 71(4) of the Family Assistance Act;
the difference between the amount paid and the amount that would have been
paid if the individual had not made the statement or representation to the
service is a debt due to the Commonwealth by the individual.
(7) For the purposes of subsection (6), the amount that would have been
paid if the individual had not made the statement or representation to the
service may be nil.
Childcare benefit paid at special circumstances rate when service not
satisfied that special circumstances exist
(8) If:
(a) an approved child care service gives a certificate under subsection
71(1) of the Family Assistance Act in relation to sessions of care provided by
the service to an FTB child of an individual on the basis that:
(i) the child is at risk of serious abuse or neglect; or
(ii) the individual is experiencing hardship of a kind specified in a
determination in force under subsection 48(1) of that Act; and
(b) the service is not satisfied, at the time when it gives the
certificate, that that basis exists;
the difference between the amounts paid to the individual and the amounts
that would have been paid to the individual if the service had not given the
certificate is a debt due to the Commonwealth by the service.
(9) If:
(a) an approved child care service knowingly makes a false statement or
false representation to the Secretary or an officer; and
(b) a determination is made, in reliance on the statement or
representation, under subsection 71(4) of the Family Assistance Act in relation
to an FTB child of an individual;
the difference between the amounts paid under the determination and the
amounts that would have been paid if the service had not made the statement or
representation is a debt due to the Commonwealth by the service.
Section 71 does not apply in relation to a payment to a person of
maternity allowance or maternity immunisation allowance for which the person was
not entitled if the person’s lack of entitlement for the allowance
resulted from the person’s Part A rate of family tax benefit being nil and
either:
(a) the person’s nil Part A rate resulted from an event or change in
circumstances that occurred after the payment of maternity allowance or
maternity immunisation allowance was made; or
(b) the following subparagraphs apply:
(i) the person’s nil Part A rate resulted from the amount of the
person’s adjusted taxable income for the relevant income year;
(ii) maternity allowance or maternity immunisation allowance was made on
the basis of a determination of the person’s Part A rate that was based on
an incorrect estimate by the person of an income component of the person’s
adjusted taxable income;
(iii) at the time when the estimate was made the person did not know, and
had no reason to suspect, that the estimate was incorrect.
If:
(a) a person applies to the AAT under section 143 for review of a
decision; and
(b) the AAT makes an order under subsection 41(2) of the Administrative
Appeals Tribunal Act 1975; and
(c) as a result of the order, the amount that has in fact been paid to the
person by way of family assistance 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 instalment of family assistance 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 under section 5, 7A or 86 of
the Crimes Act 1914 in relation to that contravention;
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.
Notice may be given about interest becoming payable if person fails to
enter agreement to pay debt
(1) If:
(a) a person owes a debt to the Commonwealth under a provision of this
Part; and
(b) either:
(i) the person owing the debt is a person who is not receiving instalments
of family assistance; or
(ii) the person owing the debt is an approved child care service who is
not receiving group payments; and
(c) the Secretary has given the person a notice asking the person to pay
the debt; and
(d) at the end of the period of 21 days after the notice is given, the
person:
(i) has not entered into negotiations to pay the debt; or
(ii) has entered into negotiations to pay the debt, but has not entered
into an agreement to pay the debt by reasonable instalments;
the Secretary may give the person a notice advising the person of the
following:
(e) the amount of the debt;
(f) that, unless the person, within 14 days after the notice is
given:
(i) pays the whole of the debt; or
(ii) enters into an agreement to pay the debt by reasonable
instalments;
interest may become payable on the debt;
(g) how any interest that becomes payable is to be calculated.
When interest becomes payable
(2) Subject to subsection (3), if:
(a) the whole of the debt is not paid within 14 days after the person is
given the notice; or
(b) the person does not enter into an agreement to pay the debt within the
14 day period;
interest is payable by way of penalty on the debt by the person and the
amount of the interest is to be worked out under subsection (4).
Secretary may determine interest is not payable
(3) The Secretary may determine in writing that interest is not payable on
the debt if the Secretary is satisfied that the person intends to pay the debt
as soon as is reasonably practicable having regard to the circumstances of the
person.
The interest payable
(4) Interest is payable on the amount of the debt (excluding interest) as
remains due from time to time:
(a) on and from the day after the 14 day period ends; and
(b) at the penalty interest rate.
Payments in satisfaction of debt and interest
(5) If:
(a) interest is payable on the debt; and
(b) an amount is paid for the purpose of paying the debt and the
interest;
the amount so paid is to be applied as follows:
(c) until the debt (excluding interest) is fully paid—in
satisfaction of the amount of the debt that is due when the payment is
made;
(d) after the debt (excluding interest) is fully paid—in
satisfaction of the interest that had become payable on the debt before the debt
was fully paid.
Interest ceases to be payable if agreement entered into
(6) If a person enters into an agreement to pay the debt by reasonable
instalments, interest that would, apart from this subsection, become payable on
the debt on and from the day on which the agreement is entered into is not
payable.
Interest payable is a debt due to the Commonwealth
(7) The interest that is payable on the debt is a debt due to the
Commonwealth.
Notice may be given about interest becoming payable if person breaches
agreement to pay debt
(1) If:
(a) a person owes a debt to the Commonwealth under a provision of this
Part; and
(b) either:
(i) the person owing the debt is a person who is not receiving instalments
of family assistance; or
(ii) the person owing the debt is an approved child care service who is
not receiving group payments; and
(c) the person enters into an agreement to pay the debt by reasonable
instalments; and
(d) the person does not pay an instalment;
the Secretary may give the person a notice advising the person of the
following:
(e) the amount of the debt;
(f) that, unless the person pays the instalment within 14 days after the
notice is given, interest may become payable on the debt;
(g) how any interest that becomes payable is to be calculated.
When interest becomes payable
(2) Subject to subsections (3) and (4), if the instalment is not paid
within 14 days after the person is given the notice, interest is payable by way
of penalty on the debt by the person and the amount of interest is to be worked
out under subsection (5).
Secretary may determine interest is not payable
(3) The Secretary may determine in writing that interest is not payable on
the debt if the Secretary is satisfied that the person intends to pay the
instalment as soon as is reasonably practicable having regard to the
person’s circumstances.
Interest may cease to accrue
(4) Interest payable under subsection (2) ceases to accrue on and from the
day the person:
(a) next pays the instalment due under an agreement; or
(b) enters into a new agreement;
whichever first occurs.
The interest payable
(5) Interest is payable on the amount of the debt (excluding interest) as
remains due from time to time:
(a) on and from the day after the 14 day period ends; and
(b) at the penalty interest rate set under section 79.
Payments in satisfaction of debt and interest
(6) If:
(a) interest is payable on the debt; and
(b) an amount is paid for the purpose of paying the debt and
interest;
the amount is to be applied as follows:
(c) until the debt (excluding interest) is fully paid—in
satisfaction of the amount of the debt that is due when the payment is
made;
(d) after the debt (excluding interest) is fully paid—in
satisfaction of the interest that had become payable on the debt before it was
fully paid.
Interest payable is a debt due to the Commonwealth
(7) The interest payable on the debt is a debt due to the
Commonwealth.
(1) The penalty interest rate is:
(a) 20% per year; or
(b) if a lower rate is determined under subsection (2)—that lower
rate.
(2) The Minister may determine, in writing, a rate of less than 20% per
year that is to be the penalty interest rate for the purposes of sections 77 and
78.
(3) A determination under subsection (2) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) If:
(a) a person (the garnishee debtor) is given a notice under
section 89 in respect of a debt due by another person (the original
debtor) under this Act; and
(b) the garnishee debtor fails to comply with the notice to the extent
that he or she is capable of complying with it;
then the amount of the debt outstanding (worked out under subsection (2))
is recoverable from the garnishee debtor by the Commonwealth by means
of:
(c) legal proceedings; or
(d) garnishee notice.
(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.
(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.
(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.
(5) This section binds the Crown in right of the Commonwealth, of each of
the States, of the Australian Capital Territory, of the Northern Territory and
of Norfolk Island.
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).
(1) A debt owed by a person, other than an approved child care service, is
recoverable by the Commonwealth by means of:
(a) deductions from family assistance payable to the person; or
(b) if section 92 applies to another person to whom family assistance is
payable—deductions from that other person’s family assistance;
or
(c) the application of an income tax refund owed to the person;
or
(d) if section 93 applies to another person to whom an income tax refund
is owed—the application of that refund; or
(e) legal proceedings; or
(f) garnishee notice.
However, a debt owed in relation to child care benefit is not recoverable
by means of the application of an income tax refund under paragraph (c) or
(d).
(2) A debt owed by an approved child care service for child care benefit
is recoverable by the Commonwealth by means of:
(a) if group payments are being made to the service—deductions from
those payments; or
(b) legal proceedings; or
(c) garnishee notice.
(3) In this section:
debt means:
(a) a debt due to the Commonwealth under section 71, 73, 74, 76, 77 or 78;
or
(b) a debt due to the Commonwealth for which a person is liable because of
section 75.
(1) Sections 84, 85 and 92 provide for debt recovery by deductions from
family assistance in the following situations:
(a) section 84—recovery of a debt owed by a person who is receiving
family assistance;
(b) section 85—recovery of a debt owed by an approved child care
service who is receiving group payments;
(c) section 92—recovery of a debt by consent from a person other
than the debtor.
(2) For the purposes of this Division, a person is taken to be receiving
family assistance even if the person is only to be paid a single payment (for
example, a lump sum payment paid pursuant to a retrospective claim or a payment
of arrears to cover earlier underpayments). In such a case, a deduction from the
single payment may be made under the relevant section.
(1) This section applies to a debt if:
(a) under section 82, the debt is recoverable by the Commonwealth by means
of deductions from family assistance being received by a person; or
(b) the debt is a debt due by a person to the Commonwealth under Chapter 5
of the Social Security Act 1991.
(2) The debt is to be deducted from payments of family assistance to the
person in the following way:
(a) the Secretary is to determine the amount by which each payment of
family assistance to the person is to be reduced; and
(b) each payment of family assistance to the person is to be reduced by
the amount determined by the Secretary until the sum of those amounts, and any
amounts recovered under the Social Security Act 1991, is equal to the
debt.
The Secretary may from time to time vary the amount by which payments of
family assistance are to be reduced.
(3) The debt is recoverable by means of deductions from a payment of child
care benefit to be received by a person only if:
(a) the debt arose from a payment of child care benefit received by the
person; and
(b) at the time the determination to recover the debt in that way is
made:
(i) it is not possible to recover the debt under this Division by means of
deductions from family assistance (other than child care benefit); and
(ii) it is not possible to recover the debts under Chapter 5 of the
Social Security Act 1991 from a social security payment.
(4) Subject to section 86, the debt must be deducted unless:
(a) the Secretary takes action under Division 4 in relation to the amount;
or
(b) the amount is recovered by the Commonwealth under:
(i) another provision of this Division; or
(ii) under the Social Security Act 1991.
(1) This section applies to a debt if, under section 82, the debt is
recoverable by the Commonwealth by means of deductions from group payments being
received by an approved child care service.
(2) The debt is to be deducted from group payments being received by the
service in the following way:
(a) the Secretary is to determine the amount by which each group payment
is to be reduced; and
(b) each group payment to the service is to be reduced by the amount
determined by the Secretary until the sum of those amounts is equal to the
debt.
The Secretary may from time to time vary the amount by which the group
payments are to be reduced.
(3) Subject to section 86, the debt must be deducted unless:
(a) the Secretary takes action under Division 4 in relation to the amount;
or
(b) the amount is recovered by the Commonwealth under another provision of
this Division.
(1) Subject to subsections (2), (3), (4) and (5), action under this
section, or section 84 or 85, for the recovery of a debt is not to be commenced
after the end of the period of 6 years starting on the day on which the debt
arose.
(2) If the debt arose because the person owing the debt:
(a) made a false statement or false representation; or
(b) contravened a provision of the family assistance law;
action under section 84 for the recovery of the debt may be commenced at
any time within the period of 6 years starting on the first day on which an
officer becomes aware, or could reasonably be expected to have become aware, of
the circumstances that gave rise to the debt.
(3) If:
(a) subsection (1) or (2) applies so that action under section 84 or 85
for the recovery of a debt must be commenced within a particular period;
and
(b) within that period part of the amount owing is paid;
action under that section for the recovery of the balance of the debt may
be commenced within the period of 6 years starting on the day of
payment.
(4) If:
(a) subsection (1) or (2) applies so that action under section 84 or 85
for the recovery of a debt must be commenced within a particular period;
and
(b) within that period, the person who owes the amount acknowledges that
he or she owes it;
action under that section for the recovery of the debt may be commenced
within the period of 6 years starting on the day of acknowledgment.
(5) If:
(a) subsection (1) or (2) applies so that action under section 84 or 85
for the recovery of a debt must be commenced within a particular period;
and
(b) within that period:
(i) action is taken under this section, or section 88 or 89, for the
recovery of the debt; or
(ii) a review of a file relating to action for the recovery of the debt
occurs; or
(iii) other internal Departmental activity relating to action for the
recovery of the debt occurs;
action under section 84 or 85 for the recovery of the debt may be commenced
within the period of 6 years after the end of the activity or action referred to
in paragraph (b).
(1) If, under section 82, a debt owed by a person is recoverable by the
Commonwealth by means of application of an income tax refund payable to the
person, the Commissioner of Taxation may apply the whole or a part of the refund
to the debt.
(2) The amount of the refund and the amount of the debt are reduced
accordingly.
(3) Subject to subsection (4), action under this section for the recovery
of a debt is not to be taken after the end of the period of 6 years starting on
the day on which the debt arose.
(4) If:
(a) action is taken under this section to recover a debt owed by a person
from an income tax refund that relates to a particular income year;
and
(b) the action is taken within 6 years starting on the day on which the
debt arose; and
(c) the amount of the refund is not sufficient to reduce the amount of the
debt to nil;
action may be taken under this section to apply an income tax refund
payable to the person for a later income year to the remainder of the
debt.
(1) 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.
(2) Subject to subsections (3), (4), (5) and (6), legal proceedings for
the recovery of the debt are not to be commenced after the end of the period of
6 years starting on the day on which the debt arose.
(3) If the debt arose because the person owing the debt:
(a) made a false statement or false representation; or
(b) contravened a provision of the family assistance law;
legal proceedings for the recovery of the debt may be commenced at any time
within the period of 6 years starting on the first day on which an officer
becomes aware, or could reasonably be expected to have become aware, of the
circumstances giving rise to the debt.
(4) If:
(a) subsection (2) or (3) applies so that legal proceedings for the
recovery of a debt must be commenced within a particular period; and
(b) within that period part of the amount owing is paid;
legal proceedings for the recovery of the balance of the debt may be
commenced within the period of 6 years starting on the day of payment.
(5) If:
(a) subsection (2) or (3) applies so that legal proceedings for the
recovery of a debt must be commenced within a particular period; and
(b) within that period, the person who owes the amount acknowledges that
he or she owes it;
legal proceedings for the recovery of the debt may be commenced within the
period of 6 years starting on the day of acknowledgment.
(6) If:
(a) subsection (2) or (3) applies so that action under this section for
the recovery of a debt must be commenced within a particular period;
and
(b) within that period:
(i) action is taken under this section, or section 84, 85 or 89, for the
recovery of the debt; or
(ii) a review of a file relating to action for the recovery of the debt
occurs; or
(iii) other internal Departmental activity relating to action for
the recovery of the debt occurs;
action under this section for the recovery of the debt may be commenced
within the period of 6 years after the end of the activity or action referred to
in paragraph (b).
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(8) This section applies to money in spite of any law of a State or
Territory (however expressed) under which the amount is inalienable.
(9) This section binds the Crown in right of the Commonwealth, of each of
the States, of the Australian Capital Territory, of the Northern Territory and
of Norfolk Island.
(1) Subject to subsections (2), (3), (4) and (5), action under section 89
for the recovery of a debt is not to be commenced after the end of the period of
6 years starting on the day on which the debt arose.
(2) If the debt arose because the person owing the debt:
(a) made a false statement or false representation; or
(b) contravened a provision of the family assistance law;
action under section 89 for the recovery of the debt may be commenced at
any time within the period of 6 years starting on the first day on which an
officer becomes aware, or could reasonably be expected to have become aware, of
the circumstances that gave rise to the debt.
(3) If:
(a) subsection (1) or (2) applies so that action under section 89 for the
recovery of a debt must be commenced within a particular period; and
(b) within that period part of the amount owing is paid;
action under that section for the recovery of the balance of the debt may
be commenced within the period of 6 years starting on the day of
payment.
(4) If:
(a) subsection (1) or (2) applies so that action under section 89 for the
recovery of a debt must be commenced within a particular period; and
(b) within that period, the person who owes the amount acknowledges that
he or she owes it;
action under that section for the recovery of the debt may be commenced
within the period of 6 years starting on the day of acknowledgment.
(5) If:
(a) subsection (1) or (2) applies so that action under section 89 for the
recovery of a debt must be commenced within a particular period; and
(b) within that period:
(i) action is taken under this section, or section 84, 85 or 88, for the
recovery of the debt; or
(ii) a review of a file relating to action for the recovery of the debt
occurs; or
(iii) other internal Departmental activity relating to action for the
recovery of the debt occurs;
action under section 89 for the recovery of the debt may be commenced
within the period of 6 years after the end of the activity or action referred to
in paragraph (b).
(1) The Secretary may, on behalf of the Commonwealth, decide to allow a
person to pay a debt in one or more instalments.
(2) A decision made under subsection (1) takes effect:
(a) if no day is specified in the decision—on the day on which the
decision is made; or
(b) if a day is specified in the decision—on the day so specified
(whether that day is before, after or on the day on which the decision is
made).
(3) In subsection (1):
debt means a debt recoverable by the Commonwealth under
Division 2.
(1) If:
(a) a person (the debtor) incurs a debt under this Act;
and
(b) another person (the consenting person) is receiving
family assistance; and
(c) for the purpose of the recovery of the debt, the consenting person
consents to the deduction of an amount from the consenting person’s family
assistance;
the Secretary may deduct the amount from the consenting person’s
family assistance.
(2) A person may not consent under subsection (1) to deductions being made
from the person’s child care benefit.
(3) The debtor’s debt is reduced by an amount equal to the amount
deducted from the consenting person’s family assistance.
(4) The consenting person may revoke the consent at any time.
(1) If:
(a) a person (the debtor) incurs 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.
(2) The amount of the refund and the amount of the debt are reduced
accordingly.
(3) The consenting person may revoke the consent at any
time.
In this Division:
debt means a debt recoverable by the Commonwealth under
Division 2.
(1) Subject to subsection (2), the Secretary may, on behalf of the
Commonwealth, decide to write off a debt, for a stated period or
otherwise.
(2) The Secretary may decide to write off a debt under subsection (1) if,
and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable
efforts have been made to locate the debtor; or
(d) the debt cannot be recovered by deductions under this Act or the
Social Security Act 1991 and it is not cost effective for the
Commonwealth to take action to recover the debt.
(3) For the purposes of paragraph (2)(a), a debt is taken to be
irrecoverable at law if, and only if:
(a) the debt cannot be recovered by means of:
(i) deductions under section 84 or 85; or
(ii) application of an income tax refund under section 87; or
(iii) legal proceedings under section 88; or
(iv) garnishee notice under section 89;
because the relevant time limit for recovery action under that section
has elapsed; or
(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 discharge 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.
(4) For the purposes of paragraph (2)(b):
(a) if a debt is recoverable by means of:
(i) deductions under section 84; or
(ii) application of an income tax refund under section 87;
the person is taken to have a capacity to repay the debt unless recovery
by those means would cause the person severe financial hardship; and
(b) if a debt is recoverable by means of deductions under section 85, the
person is taken to have the capacity to repay the debt.
(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).
(6) Nothing in this section prevents anything being done at any time to
recover a debt that has been written off under this section.
(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.
(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.
(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.
(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.
(3) The Secretary must waive the administrative error proportion of a debt
if:
(a) the payment or payments were made in respect of the debtor’s
eligibility for family assistance for a period or event (the eligibility
period or event) that occurs in an income year; and
(b) the debt is raised after the end of:
(i) the debtor’s next income year after the one in which the
eligibility period or event occurs; or
(ii) the period of 13 weeks starting on the day on which the payment that
gave rise to the debt was made;
whichever ends last; and
(c) the debtor received in good faith the payment or payments that gave
rise to the administrative error proportion of the debt.
(4) For the purposes of this section, the administrative error proportion
of the debt may be 100% of the debt.
(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.
(2) For the purposes of this section, a proportion of a debt may be 100%
of the debt.
(1) The Secretary must waive the right to recover a debt if:
(a) the debt is, or is likely to be, less than $200; and
(b) it is not cost effective for the Commonwealth to take action to
recover the debt.
(2) Subsection (1) does not apply if the debt is at least $50 and could be
recovered by deductions under:
(a) section 84 or 85 of this Act; or
(b) section 1231 of the Social Security Act 1991.
Settlement of civil action
(1) If the Commonwealth has agreed to settle a civil action against a
debtor for recovery of a debt for less than the full amount of the debt, the
Secretary must waive the right to recover the difference between the debt and
the amount that is the subject of the settlement.
Settlement of proceedings before the AAT
(2) If the Secretary has agreed to settle proceedings before the AAT
relating to recovery of a debt on the basis that the debtor will pay less than
the full amount of the debt, the Secretary must waive the right to recover the
difference between the debt and the amount that is the subject of the
settlement.
Waiver where at least 80% of debt recovered and debtor cannot pay
more
(3) If:
(a) the Commonwealth has recovered at least 80% of the original value of a
debt from a debtor; and
(b) the Commonwealth and the debtor agree that the recovery is in full
satisfaction for the whole of the debt; and
(c) the debtor cannot repay a greater proportion of the debt;
the Secretary must waive the remaining 20% or less of the value of the
original debt.
Agreement for part-payment in satisfaction of outstanding
debt
(4) If the Secretary and a debtor agree that the debtor’s debt will
be fully satisfied if the debtor pays the Commonwealth an agreed amount less
than the amount 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
(5) The Secretary must not make an agreement described in subsection (4)
unless the Secretary is satisfied that:
(a) the debtor cannot repay more of the debt than the agreed amount;
and
(b) the agreed amount is at least the present value of the unpaid amount
repaid in instalments whose amount and timing is determined by the Secretary;
and
(c) it would take at least a year to recover the unpaid amount under
Division 2 if subsection (4) did not apply.
Formula for working out present value of unpaid amount
(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 determination in writing.
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.
Determination is a disallowable instrument
(7) A determination for the purposes of the definition of
interest in subsection (6) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
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.
(1) The Secretary may, on behalf of the Commonwealth, decide to waive the
Commonwealth’s right to recover debts arising under or as a result of this
Act that are included in a class of debts specified by the Minister by
determination in writing.
(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).
(3) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) This section deals with the making of determinations under subsections
77(3) and 78(3) (determinations that interest is not payable in certain
circumstances).
(2) The determination may relate to a period before the making of the
determination.
(3) The determination may be expressed to be subject to the person
complying with specified conditions.
(4) The Secretary must give a copy of the determination to the person as
soon as practicable after making the determination.
(5) A failure to comply with subsection (4) does not invalidate the
determination.
(6) If:
(a) the determination is expressed to be subject to the person complying
with specified conditions; and
(b) the person contravenes a condition;
the determination ceases to have effect.
(7) The Secretary may cancel or vary the determination by written notice
to the person.
(1) The Secretary may, if satisfied that there is sufficient reason to do
so, review a decision of any officer under the family assistance law.
(2) The Secretary may review the decision even if an application has been
made to the Social Security Appeals Tribunal or the Administrative Appeals
Tribunal for review of the decision.
(3) The Secretary must not review the decision under this section while
any review of the decision is taking place under section 105.
(4) The Secretary may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(5) If the Secretary makes a decision to do one of the things in paragraph
(4)(b) or (c), the Secretary must give notice of the decision to the person
whose entitlement, or possible entitlement, to family assistance is affected by
the decision. The notice must state the effect of the decision and that the
person may apply for review of the decision involved in the manner set out in
this Part.
(6) A contravention of subsection (5) in relation to a decision does not
affect the validity of the decision.
(7) If:
(a) the Secretary makes a decision to do one of the things in paragraph
(4)(b) or (c); and
(b) by the time the Secretary makes that decision, a person has applied to
the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for
review of the decision that was reviewed by the Secretary;
the Secretary must give written notice of the Secretary’s decision
under that paragraph to the Executive Director or the Registrar of the
Administrative Appeals Tribunal, as the case requires.
(8) If:
(a) the Secretary sets a decision aside under subsection (4);
and
(b) the Secretary is satisfied that an event that did not occur would have
occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the
event to have occurred for the purposes of the family assistance law.
(1) A person affected by a decision of an officer under the family
assistance law (other than a decision made by the Secretary personally) may
apply to the Secretary for review of the decision.
(2) If the person does so, the Secretary must either:
(a) review the decision and:
(i) affirm the decision; or
(ii) vary the decision; or
(iii) set the decision aside and substitute a new decision; or
(b) arrange for an authorised review officer (see section 106) to do
so.
(3) Whoever reviews the decision in accordance with subsection (2) (the
decision reviewer) must, after conducting the review, give the
applicant written notice of his or her decision to affirm or vary the decision
reviewed, or to set it aside and substitute a new decision.
(4) If:
(a) the decision reviewer sets the decision aside after reviewing the
decision under subsection (2); and
(b) the decision reviewer is satisfied that an event that did not occur
would have occurred if the decision had not been made;
the decision reviewer may, if satisfied that it is reasonable to do so,
deem the event to have occurred for the purposes of the family assistance
law.
(5) If:
(a) a person who may apply to the Secretary for a review of a decision
under subsection (1) has not done so; and
(b) the person applies to the Social Security Appeals Tribunal for review
of the decision (despite not being entitled to do so);
the person is taken to have applied to the Secretary for review of the
decision under subsection (1) on the day on which the person applied to the
Social Security Appeals Tribunal.
(1) The Secretary must authorise officers to be authorised review officers
for the purposes of this Division.
(2) The Secretary must not authorise an officer of an agency other than
the Department unless the head of the agency has agreed to the
authorisation.
Application to be made within 52 weeks of notification of
decision
(1) Subject to subsections (2) and (3), an application for review under
section 105 must be made no later than 52 weeks after the applicant is notified
of the decision concerned.
Exception—Secretary determines special circumstances
exist
(2) The Secretary may determine special circumstances in which an
application may be made after the 52 weeks mentioned in subsection (1). The
determination is a disallowable instrument for the purposes of section 46A of
the Acts Interpretation Act 1901.
Exception—making of regulations
(3) The regulations may prescribe circumstances in which an application
may be made after the 52 weeks mentioned in subsection (1).
Withdrawal of application
(4) An applicant for review under section 105 may, in writing or in any
other manner approved by the Secretary, withdraw the application at any time
before the decision reviewer does any of the things in subsection
105(2).
(5) If an application is so withdrawn, it is taken never to have been
made.
(1) If:
(a) an adverse family assistance decision (see subsection (4)) is made;
and
(b) the adverse decision depends on the exercise of a discretion, or the
holding of an opinion, by a person; and
(c) a person applies to the Secretary under section 105 for review of the
adverse decision;
the Secretary may declare that entitlement to the family assistance is to
continue, pending the determination of the review, as if the adverse decision
had not been made.
(2) While the declaration is in force in relation to the adverse decision,
this Act (other than this Part) applies as if the adverse decision had not been
made.
(3) The declaration:
(a) starts to have effect on the day on which it is made or on the earlier
day (if any) specified in the declaration; and
(b) stops having effect if:
(i) the application for review of the adverse decision is withdrawn;
or
(ii) the review of the adverse decision is determined by the Secretary or
an authorised review officer; or
(iii) the declaration is revoked by the Secretary.
(4) In this section:
adverse family assistance decision means any decision having
the effect that an entitlement to family assistance under a determination is
reduced or ceases.
(1) If the decision reviewer gives an applicant a notice under subsection
105(3), the notice must include:
(a) a statement to the effect that the applicant may, subject to this
Part, apply to the Social Security Appeals Tribunal for review of the decision
reviewer’s decision mentioned in the notice; and
(b) a statement about the decision reviewer’s decision
that:
(i) sets out the reasons for the decision; and
(ii) sets out the findings by the decision reviewer on material questions
of fact; and
(iii) refers to the evidence or other material on which those findings
were based; and
(c) a statement to the effect that, if the applicant is dissatisfied with
the Social Security Appeals Tribunal’s decision on any application for
review as mentioned in paragraph (a), the applicant may, subject to the
Administrative Appeals Tribunal Act 1975, apply to the Administrative
Appeals Tribunal for review of the Social Security Appeals Tribunal’s
decision.
(2) A contravention of subsection (1) in relation to a decision does not
affect the validity of the decision.
In carrying out its functions under this Act, the SSAT must pursue the
objective of providing a mechanism of review that is fair, just, economical,
informal and quick.
(1) If the decision reviewer has affirmed, varied or set aside a decision
under Division 1, a person affected by the decision may apply to the Social
Security Appeals Tribunal for review of the decision as affirmed or varied or,
if it has been set aside and another decision substituted, the decision so
substituted.
(2) However, a person cannot apply for review under subsection (1) in
respect of any of the following decisions:
(a) a decision under subsection 7(2) or 38(2) (form and manner of
claim);
(b) if regulations under Division 4 of Part 3 (Child care benefit) allow
the Secretary to determine the form and manner of a claim of any kind for child
care benefit—a decision of the Secretary to determine that form and
manner;
(c) a decision under section 108 or 113 (continuation of payment pending
review of adverse decision);
(d) a decision under section 155, 156, 157 or 158 (Secretary requiring
information from person);
(e) a decision relating to the Secretary’s power under section 147
to settle proceedings before the AAT;
(f) a decision under Part 8 (approval of child care services and approval
of registered carers).
(1) An application to the SSAT under section 111 for review of a decision
must be made within 28 days after the applicant is notified of the
decision.
(2) However, the SSAT may extend the period of 28 days in a particular
case if it is satisfied that special circumstances exist for doing so.
(1) If:
(a) an adverse family assistance decision (see subsection (4)) is made;
and
(b) the adverse decision depends on the exercise of a discretion, or the
holding of an opinion, by a person; and
(c) a person applies to the SSAT under section 111 for review of the
adverse decision;
the Secretary may declare that entitlement to the family assistance is to
continue, pending the determination of the review, as if the adverse decision
had not been made.
(2) While the declaration is in force in relation to the adverse decision,
this Act (other than this Part) applies as if the adverse decision had not been
made.
(3) The declaration:
(a) starts to have effect on the day on which it is made or on the earlier
day (if any) specified in the declaration; and
(b) stops having effect if:
(i) the application to the SSAT for review of the adverse decision is
withdrawn; or
(ii) the review of the adverse decision is determined by the SSAT;
or
(iii) the declaration is revoked by the Secretary.
(4) In this section:
adverse family assistance decision means any decision having
the effect that an entitlement to family assistance under a determination is
reduced or ceases.
(1) If a person applies to the SSAT for review of a decision, the SSAT
must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new decision; or
(ii) send the matter back to the Secretary, for reconsideration in
accordance with any directions or recommendations of the SSAT.
(2) If the SSAT sets a decision aside and substitutes for it a decision
that a person is entitled to have a payment made under this Act, the SSAT
must:
(a) assess the amount of the payment; or
(b) ask the Secretary to assess the amount.
(3) If:
(a) the SSAT sets a decision aside under subsection (1); and
(b) the Secretary or the SSAT, as the case may be, is satisfied that an
event that did not occur would have occurred if the decision had not been
made;
the Secretary or the SSAT, as the case requires, may, if satisfied that it
is reasonable to do so, deem the event to have occurred for the purposes of the
family assistance law.
The SSAT may, for the purpose of reviewing a decision under the family
assistance law, exercise all the powers and discretions that are conferred by
the family assistance law on the Secretary.
(1) Subject to this section, a decision of the SSAT comes into operation
immediately on the giving of the decision.
(2) The SSAT may specify in a decision that the decision is not to come
into operation until a later day specified in the decision and, if it does so,
the decision comes into operation on that later day.
(3) Subject to subsection (4) of this section and any regulations under
subsection 236(4), if the SSAT:
(a) varies a decision (the original decision) under review;
or
(b) sets aside a decision (also the original decision) under
review and substitutes a new decision;
the decision as varied or the new decision, as the case may be, has effect,
or is taken to have had effect, on and from the day on which the original
decision has effect, or would have had effect, if the person who made the
original decision had made the decision as varied or the new decision.
(4) The SSAT may declare:
(a) that subsection (3) does not apply to a decision by the SSAT on a
review; and
(b) that subsections (1) and (2) apply instead.
(1) A person may apply to the SSAT for review of a decision by:
(a) sending or delivering a written application to:
(i) an office of the SSAT; or
(ii) an office of the Department; or
(iii) an office of another agency, where the Secretary has approved the
office for the purposes of this subparagraph; or
(b) going to an office of the SSAT and making an oral application;
or
(c) contacting an office of the SSAT by telephone and making an oral
application.
(2) If a person makes an oral application in accordance with paragraph
(1)(b) or (c), the person receiving the oral application must make a written
record of the details of the oral application and note on the record the day on
which the application is made.
(3) An application may include a statement of the reasons for seeking a
review of the decision.
(1) If an officer varies a decision after an application has been made to
the SSAT for review of the decision but before determination of the review, the
application for review is to be treated as if it were an application for review
of the decision as varied.
(2) If an officer sets a decision aside and substitutes a new decision
after an application has been made to the SSAT for review of the original
decision but before the determination of the review, the application for review
is to be treated as if it were an application for review of the new
decision.
(3) If:
(a) a person applies to the SSAT for review of a decision; and
(b) before determination of the review, an officer varies the decision or
sets it aside and substitutes a new decision;
the person may either:
(c) proceed with the application for review of the decision as varied or
the new decision, as the case may be; or
(d) withdraw the application under section 136.
(1) The parties to a review by the SSAT are:
(a) the applicant; and
(b) the Secretary; and
(c) if the relevant decision was made by an officer of the Commonwealth
Services Delivery Agency—the Chief Executive Officer of the Agency;
and
(d) if the relevant decision was made by an officer of the
Australian Taxation Office—the Commissioner of Taxation; and
(e) if the relevant decision was made by an officer of the Health
Insurance Commission—the Managing Director of the Commission;
and
(f) any other person who has been made a party to the review under
subsection (4).
(2) If a person has applied under section 111 for review of a decision,
any other person affected by the decision may apply to the Executive Director to
be made a party to the review.
(3) An application under subsection (2) must be in writing.
(4) The Executive Director may order that a person who has applied under
subsection (2) be made a party to the review.
(1) If an application under section 111 is sent or delivered to an office
of the Department or another agency, the Secretary must send the application to
the Executive Director as soon as practicable and, in any case, not later than 7
days after the application is received at the office of the Department or other
agency.
(2) If:
(a) an application under section 111 is sent or delivered to an office of
the SSAT; or
(b) the Secretary sends such an application to the Executive Director in
accordance with subsection (1);
the Executive Director must give the applicant and the Secretary written
notice that the application has been received.
(3) Within 28 days after receiving notice of the making of an application
from the Executive Director, the Secretary must send to the Executive
Director:
(a) a statement about the decision under review that:
(i) sets out the findings of fact made by the person who made the
decision; and
(ii) refers to the evidence on which those findings were based;
and
(iii) gives the reasons for the decision; and
(b) the original or a copy of every document or part of a document
that:
(i) is in the possession, or under the control, of the Secretary or any
other officer; and
(ii) relates to the applicant; and
(iii) is relevant to the review of the decision.
(4) If the Executive Director asks the Secretary to send the statement and
documents referred to in subsection (3) by a day earlier than the day fixed by
that subsection, the Secretary must take reasonable steps to comply with the
Executive Director’s request.
(5) If:
(a) after the end of the period referred to in subsection (3) but before
the determination of the review, the Secretary obtains possession of a document;
and
(b) the Secretary considers that the document or a part of the document is
relevant to the review; and
(c) a copy of the document or the part of the document has not been sent
to the Executive Director in accordance with subsection (3);
the Secretary must send a copy of the document or the part of the document
to an office of the SSAT as soon as practicable after obtaining possession of
the document.
(1) The Executive Director must give each party (other than the Secretary)
a copy of the statement referred to in paragraph 120(3)(a).
(2) The Executive Director may make an order directing a person who has
received a copy of a statement in accordance with subsection (1):
(a) not to disclose information in the statement; or
(b) not to disclose information in the statement except in the
circumstances or for the purposes specified in the order.
(3) An order under subsection (2) must be made by written notice given to
the person to whom it is directed.
(4) A person who contravenes an order under subsection (2) is guilty of an
offence punishable on conviction by imprisonment for a term not exceeding 2
years.
(1) If an application is made to the SSAT for review of a decision, the
Executive Director must fix a day, time and place for the hearing of the
application.
(2) If a declaration under section 113 is in force in relation to a
decision, the Executive Director must take reasonable steps to ensure that the
decision is reviewed as quickly as possible.
(3) The Executive Director must give the applicant and any other parties
to the review written notice of the day, time and place fixed for the hearing of
the application.
(4) The notice under subsection (3) must be given a reasonable time before
the day fixed for the hearing.
(1) If:
(a) an application has been made to the SSAT for review of a decision;
and
(b) the Executive Director is satisfied that the interests of a person who
is not a party to the review are affected by the decision;
the Executive Director must take reasonable steps to give the person
written notice that an application has been made to the SSAT for review of the
decision.
(2) The notice under subsection (1):
(a) must be in writing; and
(b) must include notification of the person’s right under section
119 to apply to the Executive Director to be added as a party to the review;
and
(c) may be given at any time before the determination of the
review.
(3) The Executive Director must give each party to the review a copy of
the notice.
(1) This section applies to a party to a review of a decision (other than
the head of an agency).
(2) Subject to section 126, the party may make oral or written submissions
to the SSAT or both oral and written submissions.
(3) The party may have another person make submissions to the SSAT on
behalf of the party.
(4) The Executive Director may determine that submissions to the SSAT by
the party or the party’s representative are to be made by telephone or by
means of other electronic communications equipment.
(5) Without limiting subsection (4), the Executive Director may make a
determination under subsection (4) in relation to an application if:
(a) the application is urgent; or
(b) the party lives in a remote area and unreasonable expense would be
incurred if the party or the party’s representative had to travel to the
place at which the hearing is to be held; or
(c) the party has failed to attend the hearing and has not indicated that
he or she intends to attend the hearing; or
(d) the applicant is unable to attend the hearing because of illness or
infirmity.
(6) If the party is not proficient in English, the Executive Director may
give directions in relation to the use of an interpreter in connection with the
hearing of the review.
The head of an agency that is a party to a review of a decision may make
written submissions, but not oral submissions, to the SSAT.
(1) The Executive Director may direct that a hearing be conducted without
oral submissions from those parties that may make oral submissions if the
Executive Director considers that the review hearing could be determined fairly
on the basis of written submissions by all the parties to the review.
(2) If the Executive Director gives a direction under subsection (1), the
Executive Director must give each of the parties to the review written
notice:
(a) informing the party of the direction; and
(b) inviting the party to submit written submissions; and
(c) specifying the address to which the written submissions are to be
delivered; and
(d) specifying the time within which the written submissions are to be
delivered.
(3) The time specified under paragraph (2)(d) must be such as to allow a
reasonable period for the parties to make written submissions.
(4) Despite subsection (1), the SSAT, as constituted for the hearing, may,
if it thinks necessary after considering the written submissions made by the
parties, make an order permitting the parties (other than the head of an agency)
to make oral submissions to the SSAT at the hearing of the review.
(1) This section applies to a party to a review of a decision (other than
the head of an agency).
(2) If the party has informed the Executive Director that the party does
not intend to make oral submissions to the SSAT, the SSAT may proceed to hear
the application for review without oral submissions from the party.
(3) If:
(a) the Executive Director has determined that oral submissions to the
SSAT by the party or the party’s representative are to be made by
telephone or by means of other electronic communications equipment;
and
(b) on the day fixed for the hearing the presiding member has been unable
to contact the party or the party’s representative, as the case may be,
after taking reasonable steps to do so;
the Executive Director may authorise the SSAT to proceed to hear the
application without oral submissions from the party or the party’s
representative, as the case may be.
(4) If:
(a) the Executive Director has not determined that oral submissions to the
SSAT by the party or the party’s representative are to be made by
telephone or by means of other electronic communications equipment;
and
(b) the party or the party’s representative, as the case may be,
does not attend the hearing at the time fixed for the hearing;
the Executive Director may authorise the SSAT to proceed to hear the
application without oral submissions from the party or the party’s
representative, as the case may be.
(5) If the Executive Director gives an authorisation under subsection (3)
or (4), the SSAT may proceed to hear the application in accordance with the
authorisation.
(6) The Executive Director may revoke an authorisation under subsection
(3) or (4).
The SSAT may take evidence on oath or affirmation for the purposes of a
review of a decision.
(1) The Executive Director may ask the Secretary to provide the SSAT with
information or a document the Secretary has and that is relevant to the review
of a decision.
(2) The Secretary must comply with a request under subsection (1) as soon
as practicable and, in any event, not later than 14 days after the request is
made.
(1) The Executive Director may ask the Secretary to exercise the
Secretary’s powers under section 155 if the Executive Director is
satisfied that a person has information, or has custody or control of a
document, that is relevant to the review of a decision.
(2) The Secretary must comply with a request under subsection (1) as soon
as practicable and, in any event, within 7 days after the request is
made.
(1) The SSAT, in reviewing a decision:
(a) is not bound by legal technicalities, legal forms or rules of
evidence; and
(b) is to act as speedily as a proper consideration of the review allows;
and
(c) in determining what a proper consideration of the review requires,
must have regard to the objective laid down by section 110.
(2) The SSAT may inform itself on any matter relevant to a review of a
decision in any manner it considers appropriate.
(1) The hearing of a review is to be in private.
(2) The Executive Director may give directions, in writing or otherwise,
as to the persons who may be present at any hearing of a review.
(3) In giving directions under subsection (2), the Executive Director must
have regard to the wishes of the parties and the need to protect their
privacy.
(1) If an applicant for review of a decision provides to the SSAT evidence
that was not available to the original decision-maker or to a person who
reviewed the decision, the SSAT may:
(a) refer the decision to the Secretary for review; and
(b) adjourn the hearing.
(2) The SSAT may determine a review without referring the decision under
subsection (1) if the SSAT is satisfied that the applicant had reasonable
grounds for not providing the information to the original decision-maker or to a
person who reviewed the decision.
(1) The Executive Director may make an order directing a person who is
present at the hearing of a review:
(a) not to disclose information obtained by the person in the course of
the hearing; or
(b) not to disclose information obtained by the person in the course of
the hearing except in the circumstances, or for the purposes, specified in the
order.
(2) A
person who contravenes an order under subsection (1) is guilty of an offence
punishable on conviction by imprisonment for a term not exceeding 2
years.
(1) The SSAT may adjourn the hearing of a review of a decision from time
to time.
(2) Without limiting subsection (1), the SSAT may refuse to adjourn the
hearing of a review if:
(a) the hearing has already been adjourned on 2 or more occasions;
or
(b) the SSAT is satisfied that to grant an adjournment would be
inconsistent with the pursuit of the objective laid down by section 110;
or
(c) a declaration under section 113 is in force in relation to the
decision under review.
(1) An applicant for review of a decision may withdraw the application at
any time.
(2) An applicant may withdraw an application by:
(a) sending by any means, or delivering, written notice of withdrawal of
the application to:
(i) an office of the SSAT; or
(ii) an office of the Department; or
(iii) an office of another agency, where the Secretary has approved the
office for the purposes of this subparagraph; or
(b) going to an office of the SSAT and orally withdrawing the application;
or
(c) contacting an office of the SSAT by telephone and orally withdrawing
the application.
(3) If a person withdraws an application in accordance with paragraph
(2)(b) or (c), the person who receives the oral withdrawal must make a written
record of the day on which the withdrawal was made.
(4) If a person withdraws an application by sending or delivering written
notice of withdrawal to an office of an agency, the head of the agency must send
notice of the withdrawal to the Executive Director as soon as practicable and,
in any event, not later than 7 days after the notice of withdrawal is received
at the office of the agency.
(1) If:
(a) a person makes an application to the SSAT for review of a decision;
and
(b) the Executive Director is satisfied:
(i) after having communicated with the person; or
(ii) after having made reasonable attempts to communicate with the person
and having failed to do so;
that the person does not intend to proceed with the
application;
the Executive Director may dismiss the application.
(2) If the Executive Director dismisses an application under subsection
(1), the application is taken to have been withdrawn at the time at which the
application was dismissed.
(1) If the Executive Director is one of the members who constitute the
SSAT for the purposes of the review of a decision, the Executive Director is to
preside at the hearing of the review.
(2) If:
(a) the members who constitute the SSAT for the purposes of the review of
a decision include one Director; and
(b) the Executive Director is not one of those members;
the Director is to preside at the hearing of the review.
(3) In any other case in which the SSAT is constituted by 2 or more
members for the purposes of the review of a decision, the Executive Director
must designate one of those members as the member who is to preside at the
hearing of the review.
(1) Subject to subsection (2), a question arising before the SSAT on a
review is to be decided according to the opinion of a majority of the members
constituting the SSAT for the purposes of the review.
(2) If, on a question arising on a review, the opinions of the members of
the SSAT are equally divided, the question is to be decided according to the
opinion of the member presiding.
(1) The Executive Director:
(a) may give general directions as to the procedure to be followed by the
SSAT in connection with the review of decisions under the family assistance law;
and
(b) may give directions as to the procedure to be followed by the SSAT in
connection with a particular review.
(2) A direction under subsection (1) must not be inconsistent with any
provision of the family assistance law.
(3) A direction under paragraph (1)(b) may be given before or after the
hearing of the particular review has commenced.
(4) The presiding member of the SSAT as constituted for the purposes of a
particular review may give directions as to the procedure to be followed on the
hearing of the review.
(5) A direction under subsection (4) must not be inconsistent
with:
(a) any provision of the family assistance law; or
(b) a direction under subsection (1) of this section.
(6) A direction under subsection (4) may be given before or after the
hearing of the particular review has commenced.
(7) Directions under this section must have due regard to the objective
laid down by section 110.
(1) Subject to subsection (4), a party to a review must bear any expenses
incurred by the party in connection with the review.
(2) The SSAT may determine that the Commonwealth is to pay the reasonable
costs that are:
(a) incurred by a party for travel and accommodation in connection with
the review; and
(b) specified in the determination.
(3) If the SSAT arranges for the provision of a medical service in
relation to a party to a review, the SSAT may determine that the Commonwealth is
to pay the costs of the provision of the service.
(4) If the SSAT makes a determination under subsection (2) or (3), the
costs to which the determination relates are payable by the
Commonwealth.
(1) When the SSAT makes its decision on a review, the SSAT must:
(a) prepare a written statement that:
(i) sets out the decision of the SSAT on the review; and
(ii) sets out the reasons for the decision; and
(iii) sets out the findings on any material questions of fact;
and
(iv) refers to evidence or other material on which the findings of fact
are based; and
(b) give each party to the review a copy of the statement referred to in
paragraph (a) within 14 days after the making of the decision in relation to the
review; and
(c) return to the Secretary any document that the Secretary has provided
to the SSAT in connection with the review; and
(d) give the Secretary a copy of any document that contains evidence or
material on which the findings of fact are based.
(2) When the SSAT determines a review, the Executive Director must give
each party to the review (other than a head of an agency) a written notice that
includes a statement to the effect that, if the party is dissatisfied with the
decision of the SSAT, application may, subject to the Administrative Appeals
Tribunal Act 1975, be made to the AAT for review of the decision.
(3) A failure to comply with subsection (2) in relation to a decision of
the SSAT does not affect the validity of the decision.
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the
SSAT;
the Secretary or a person affected by the decision made by the SSAT may
apply to the AAT for review of that decision.
(2) For the purposes of subsection (1), the decision made by the SSAT is
taken to be:
(a) where the SSAT affirms a decision—that decision as affirmed;
and
(b) where the SSAT varies a decision—that decision as varied;
and
(c) where the SSAT sets a decision aside and substitutes a new
decision—the new decision; and
(d) where the SSAT sets a decision aside and sends the matter back to the
Secretary for reconsideration in accordance with any directions or
recommendations of the SSAT—the directions or recommendations of the
SSAT.
(3) Subsection (1) has effect subject to section 29 of the
Administrative Appeals Tribunal Act 1975.
(4) If:
(a) the AAT sets aside a decision of the SSAT that it reviews under this
section; and
(b) the Secretary is satisfied that an event that did not occur would have
occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the
event to have occurred for the purposes of the family assistance law.
(1) If an officer varies a decision after an application has been made
under section 143 to the AAT for review of that decision but before the
determination of the application, the application is to be treated as
if:
(a) the decision as varied had been affirmed by the SSAT; and
(b) the application were an application for review of the decision as
varied.
(2) If an officer sets a decision aside and substitutes a new decision
after an application has been made under section 143 to the AAT for review of
the original decision but before the determination of the application, the
application is to be treated as if:
(a) the SSAT had set aside the original decision and substituted the new
decision; and
(b) the application were an application for review of the new
decision.
(3) If:
(a) a person applies to the AAT for review of a decision under section
143; and
(b) before determination of the review, an officer varies the decision or
sets the decision aside and substitutes a new decision;
the applicant may, instead of proceeding with the application under
subsection (1) or (2), withdraw the application.
(1) Application may also be made to the AAT for review of the following
decisions:
(a) a decision under section 196 not to approve a child care service for
the purposes of the family assistance law;
(b) a decision under subsection 200(2) to impose another condition for the
continued approval of an approved child care service;
(c) a decision under subsection 201(1) to do one or more of the things
mentioned in paragraphs (a) to (e) of that subsection in relation to an approved
child care service;
(d) a decision under subsection 201(3) to revoke the suspension of the
approval of an approved child care service;
(e) a decision under subsection 203(2) not to cancel an approved child
care service’s approval;
(f) a decision under subsection 203(3) to cancel an approved child care
service’s approval;
(g) a decision under subsection 203(4) to cancel an approved child care
service’s approval, but only if the service made submissions under
paragraph 204(1)(e) in relation to the cancellation;
(h) a decision under paragraph 206(3)(a) not to exempt a specified child
care service from a specified eligibility rule;
(i) a decision under section 208 to:
(i) refuse to allocate any child care places to an approved child care
service; or
(ii) refuse to allocate the number of child care places an approved child
care service has applied for under that section;
unless the decision is based on guidelines of the Minister of the kind
mentioned in paragraph 207(c);
(j) a decision under subsection 211(1) not to approve an individual as a
registered carer for the purposes of the family assistance law;
(k) a decision under subsection 213(1) as to when the approval of an
applicant as a registered carer is taken to have come into force;
(l) a decision under subsection 213(3) as to when the approval of an
applicant as a registered carer is taken not to have been in force;
(m) a decision under subsection 214(2) to impose another condition for the
continued approval of an individual as a registered carer;
(n) a decision under subsection 215(1) to do one or more of the things
mentioned in paragraphs (a) to (d) of that subsection in relation to a
registered carer;
(o) a decision under subsection 217(3) to cancel a registered
carer’s approval;
(p) a decision under subsection 53(3) of the Family Assistance
Act.
(2) Subsection (1) has effect subject to section 29 of the
Administrative Appeals Tribunal Act 1975.
(3) If:
(a) the AAT sets aside a decision that it reviews under this section;
and
(b) the Secretary is satisfied that an event that did not occur would have
occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, deem the
event to have occurred for the purposes of the family assistance law.
(1) If an officer varies a decision after an application has been made
under section 145 to the AAT for review of that decision but before the
determination of the application, the application is to be treated as if the
application were an application for review of the decision as varied.
(2) If an officer sets a decision aside and substitutes a new decision
after an application has been made under section 145 to the AAT for review of
the original decision but before the determination of the application, the
application is to be treated as if the application were an application for
review of the new decision.
(3) If:
(a) a person applies to the AAT for review of a decision under section
145; and
(b) before determination of the review, an officer varies the decision or
sets the decision aside and substitutes a new decision;
the applicant may, instead of proceeding with the application under
subsection (1) or (2), withdraw the application.
(1) The Secretary may agree with other parties to proceedings before the
AAT that relate to the recovery of a debt that the proceedings be settled. The
agreement must be in writing.
(2) If proceedings are settled and the Secretary gives the AAT a copy of
the agreement to settle the proceedings, the application for review of the
decision the subject of the proceedings is taken to have been
dismissed.
The AAT Act applies to an application under section 143 for review of a
decision as if the reference in subsection 29(11) of the AAT Act to the person
who made the decision were a reference to each person who was a party to the
review of the decision by the SSAT (other than the party who made the
application under section 143).
The AAT Act applies to an application under section 143 for review as if
the reference in paragraph 30(1)(b) of the AAT Act to the person who made the
decision were a reference to each party to the review of the decision by the
SSAT.
(1) The AAT Act applies to an application under section 143 for review as
if references in section 37 of the AAT Act to the person who made the decision
the subject of the application were references to the officer who made the
decision that was reviewed by the SSAT.
(2) If a person applies to the AAT under section 143 of this Act for
review of a decision, the Secretary is taken to have complied with the
Secretary’s obligations under paragraph 37(1)(a) of the AAT Act in
relation to the decision if the Secretary gives the AAT the prescribed number of
copies of the statement prepared by the SSAT under paragraph 142(1)(a) of this
Act.
(3) Subsection (2) does not limit the powers of the AAT under section 38
of the AAT Act.
The AAT Act applies to an application under section 143 for review as if
references in section 38 of the AAT Act to the person who lodges a statement
referred to in paragraph 37(1)(a) of that Act with the AAT were references to
the Executive Director.
(1) The AAT Act applies to an application under section 143 for review of
a decision as if references in subsection 41(4) of the AAT Act to the person who
made the decision were references to each party to the review by the
SSAT.
(2) The AAT Act applies to an application under section 143 for review of
a decision as if references in section 41 of the AAT Act to the decision to
which the relevant proceeding relates were references to:
(a) if the SSAT affirmed the original decision—the original
decision; or
(b) if the SSAT varied the original decision:
(i) the original decision as varied by the SSAT; and
(ii) the original decision; or
(c) if the SSAT set aside the original decision and substituted a new
decision:
(i) the new decision; and
(ii) the original decision; or
(d) if the SSAT set aside the original decision and sent the matter back
to the Secretary for reconsideration in accordance with any directions or
recommendations of the SSAT:
(i) any decision made as a result of that reconsideration; and
(ii) the original decision.
(3) For the purposes of subsection (2), the original decision is the
decision that was reviewed by the SSAT.
The AAT Act applies to the review of a decision on an application under
section 143 as if the reference in subsection 42A(2) of the AAT Act to the
person who made the decision were a reference to the Secretary.
(1) This Division:
(a) binds the Crown in all its capacities; and
(b) extends to:
(i) acts, omissions, matters and things outside Australia, whether or not
in a foreign country; and
(ii) all persons, irrespective of their nationality or
citizenship.
(2) This Division does not require a person to give information or produce
a document to the extent that in doing so the person would contravene a law of
the Commonwealth (other than a law of a Territory).
(3) This Division does not make the Crown liable to be prosecuted for an
offence.
The Secretary may require a person to give information, or produce a
document that is in the person’s custody or under the person’s
control, to an officer 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.
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 an officer information that is relevant to the
person’s financial situation; or
(b) to produce to an officer a document that is in the person’s
custody or under the person’s control and is relevant to the
person’s financial situation; or
(c) if the person’s address changes—to inform an officer of
the new address within 14 days after the change.
If the Secretary believes that a person may have information or a
document:
(a) that would help the Secretary locate another person (the
debtor) who owes a debt to the Commonwealth under or as a result
of this Act; or
(b) that is relevant to the debtor’s financial situation;
the Secretary may require the person to give the information, or produce
the document, to an officer.
(1) The Secretary may require a person to give information about a class
of persons, to an officer 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 of persons who have made claims for family
assistance.
(2) The information that the Secretary may require about each person in
the class of persons is all or any of the following information (but no other
information):
(a) full name and any previous name;
(b) address;
(c) sex;
(d) marital status;
(e) date of birth;
(f) date of death;
(g) dates of entries into and departures from Australia;
(h) any payments received by the person from the person given the notice,
within the period of 52 weeks before the giving of the notice, and the account
number of the account into which any of those payments was paid;
(i) in relation to a course of study being undertaken by the
person:
(i) the name of the educational institution that the person is
attending;
(ii) the name of any educational institution previously attended by the
person;
(iii) the person’s enrolment status;
(iv) the person’s student identification number;
(v) the name of the course;
(vi) the course code;
(vii) the date on which the course started or starts;
(viii) the date on which the course ends;
(ix) the subject or unit code;
(x) the normal full-time study workload for the course;
(xi) indicators of the person’s workload, including (but not limited
to) effective full-time student units, credit points, contact hours, number of
subjects undertaken and number of assignments completed;
(xii) the number of semesters required to complete the course;
(xiii) the date on which the person first attended, or will first attend,
the course;
(xiv) the date on which the person last attended, or will last attend, the
course;
(xv) whether the person has discontinued the course and, if the person has
discontinued the course, the date on which it happened;
(xvi) details of any unapproved absences from the course;
(xvii) the results or grade obtained by the person;
(j) in relation to any employment of the person by the person given the
notice:
(i) the date on which the person’s employment started; and
(ii) the date on which the person’s employment ended.
(3) The Secretary may require information about a particular class of
persons, whether or not the Secretary is able to identify any of the persons in
that class as being persons:
(a) who have been paid; or
(b) who are entitled to; or
(c) who have made claims for;
family assistance.
(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).
(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.
(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.
(1) A requirement under this Division must be made by written notice given
to the person of whom the requirement is made.
(2) The notice:
(a) may be given personally or by post or in any other manner approved by
the Secretary; and
(b) must specify:
(i) how the person is to give the information or produce the document to
which the requirement relates; and
(ii) the period within which the person is to give the information or
produce the document to an officer; and
(iii) the officer to whom the information is to be given or the document
is to be produced; and
(iv) that the notice is given under this section.
(3) The period specified under paragraph (2)(b) must not end earlier than
14 days after the notice is given.
(4) The notice may require the person to give the information by appearing
before a specified officer to answer questions.
(5) If the notice requires the person so to appear, the notice must
specify a time and place at which the person is to appear. The time must be at
least 14 days after the notice is given.
A person must not, without reasonable excuse, refuse or fail to comply
with a requirement under this Division to give information or produce a
document, to the extent that the person is capable of complying with the
requirement.
Penalty: Imprisonment for 12 months.
Nothing contained in a law of a State or a Territory operates to prevent
a person from:
(a) giving information; or
(b) producing a document; or
(c) giving evidence;
that the person is required to give or produce to an officer for the
purposes of the family assistance law.
(1) Nothing in this Division prevents a person from disclosing information
to another person if the information is disclosed for the purposes of the
Child Support (Assessment) Act 1989.
(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.
(1) A person may obtain protected information if the information is
obtained for the purposes of the family assistance law.
(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
(e) for the purpose for which the information was disclosed to the person
under section 168 or 169.
If:
(a) a person intentionally obtains information; and
(b) the person:
(i) is not authorised under the family assistance law to obtain the
information; and
(ii) has no other lawful authority to obtain the information;
and
(c) the person knows or ought reasonably to know that the information is
protected information;
the person is guilty of an offence punishable on conviction by imprisonment
for a term not exceeding 2 years.
If:
(a) a person intentionally:
(i) makes a record of; or
(ii) discloses to any other person; or
(iii) otherwise makes use of;
information; and
(b) the person is not authorised or required under:
(i) the family assistance law; or
(ii) the Social Security Act 1991; or
(iii) the Social Security (Administration) Act 1999;
to make the record, disclosure or use of the information that is made by
the person; and
(c) the person knows or ought reasonably to know that the information is
protected information;
the person is guilty of an offence punishable on conviction by imprisonment
for a term not exceeding 2 years.
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 is guilty of an offence (whether or not any protected
information is actually disclosed) punishable on conviction by imprisonment for
a term not exceeding 2 years.
(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.
(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.
(3) Nothing in subsection (1) or (2) makes an officer acting in the
performance or exercise of his or her powers, duties or functions under the
family assistance law guilty of an offence.
An officer must not, except for the purposes of the family assistance
law, 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.
(1) Despite sections 165 and 168, 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.
(2) In giving certificates for the purposes of paragraph (1)(a), the
Secretary must act in accordance with guidelines from time to time in force
under section 170.
(3) In disclosing information under paragraph (1)(b), the Secretary must
act in accordance with guidelines from time to time in force under section
170.
(1) The Minister:
(a) is to determine guidelines for the exercise of:
(i) the Secretary’s power to give certificates for the purposes of
paragraph 169(1)(a); and
(ii) the Secretary’s power under paragraph 169(1)(b); and
(b) may revoke or vary those guidelines.
(2) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
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.
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.
A person must not knowingly or recklessly make a false or misleading
statement in connection with, or in support of, the person’s or any other
person’s claim for family assistance.
A person must not knowingly or recklessly make a false or misleading
statement to:
(a) deceive an officer exercising powers, or performing duties or
functions, under the family assistance law; or
(b) affect an entitlement to a payment of family assistance under the
family assistance law; or
(c) affect the rate of a payment of family assistance under the family
assistance law.
A person must not knowingly or recklessly:
(a) make to an officer exercising powers, or performing duties or
functions, under the family assistance law a statement that is false in any
particular; or
(b) present to such an officer a document that is false in any
particular.
A person must not knowingly or recklessly obtain a payment of family
assistance to which the person is not entitled, or only entitled in
part.
A person must not knowingly or recklessly obtain a payment of family
assistance:
(a) by means of a false or misleading statement made knowingly or
recklessly; or
(b) by means of impersonation; or
(c) by fraudulent means.
A person who contravenes a provision of Subdivision B is guilty of an
offence punishable on conviction by imprisonment for a term not exceeding 12
months.
(1) If a person is convicted of an offence against section 178, 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
paid by way of family assistance because of the act, failure or omission that
constituted the offence.
(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).
(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.
(1) Subject to subsection (2), if a person is convicted of more than one
offence against section 178, the court may, if it thinks fit, impose one penalty
for all the offences.
(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.
Charges against the same person for a number of offences against section
178 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.
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.
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.
(1) For the purposes of paragraph 179(1)(b), a certificate signed by the
Secretary is evidence of the matters specified in the certificate.
(2) The certificate may specify:
(a) the person to whom an amount of family assistance has been paid
because of an act, a failure or an omission for which the person or another
person has been convicted of an offence against section 178; and
(b) the amount paid; and
(c) the act, failure or omission that caused the amount to be
paid.
If:
(a) a court makes an order under paragraph 179(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.
A reference in this Part to the state of mind of a person includes a
reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
A reference in this Part to a director of a corporation includes a
reference to a constituent member of a corporation incorporated for a public
purpose by a law of the Commonwealth, a State or a Territory.
A reference in this Part to engaging in conduct includes a reference to
failing or refusing to engage in conduct.
A reference in this Part to an offence against this Act includes a
reference to an offence created by section 5, 6, 7 or 7A, or subsection 86(1),
of the Crimes Act 1914 that relates to this Act.
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.
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.
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.
Despite any other provision of this Act, if:
(a) a person is convicted of an offence; and
(b) the person would not have been convicted if sections 192 and 193 had
not been in force;
the person is not liable to be punished by imprisonment for that
offence.
Who may apply
(1) A person who operates, or proposes to operate, any of the following
kinds of child care service:
(a) a centre based long day care service;
(b) a family day care service;
(c) an occasional care service;
(d) an outside school hours care service;
may apply to the Secretary to have the service approved for the purposes of
the family assistance law.
Exception—person is a registered carer
(2) However, a person cannot make an application under subsection (1) if
the person is a registered carer.
Form of application
(3) An application under subsection (1) must:
(a) be made in a form and manner required by the Secretary; and
(b) state which of the kinds of service mentioned in subsection (1) the
service is; and
(c) contain any information required by the Secretary; and
(d) be accompanied by any documents required by the Secretary;
and
(e) in the case where a determination under section 207 is in
force—be accompanied by the fee (if any) prescribed by the regulations for
the making of applications under subsection (1).
Approval
(1) The Secretary must approve a child care service for the purposes of
the family assistance law if the Secretary is satisfied that:
(a) an application has been made in accordance with section 195 to have
the service approved; and
(b) the service is of the kind stated in the application; and
(c) the service satisfies any eligibility rules applicable to the service
under paragraph 206(1)(a); and
(d) in the case where a determination under section 207 is in
force—if the service were to be approved, child care places would be
allocated to the service under section 208.
Refusal
(2) The Secretary may refuse to approve a child care service for the
purposes of the family assistance law if:
(a) the service has previously been approved under section 196 for the
purposes of the family assistance law; and
(b) while the approval mentioned in paragraph (a) was in force, either of
the following applied:
(i) the Secretary did one or more of the things mentioned in paragraphs
201(1)(a) to (e) (which allow sanctions for breach of conditions for continued
approval) in relation to the service;
(ii) the service was convicted of an offence under this Act.
Certificate of approval
(3) If the Secretary approves the service, the Secretary must give the
applicant a certificate of approval, stating the kind of approved child care
service.
Eligibility requirements
(1) It is a condition for the continued approval of an approved child care
service that the service satisfies any eligibility rules that are from time to
time applicable to the service under paragraph 206(1)(b).
Compliance with family assistance law
(2) It is a condition for the continued approval of an approved child care
service that the service not contravene an obligation imposed on the service by
the family assistance law (whether or not such a contravention constitutes an
offence).
Compliance with child care laws
(3) It is a condition for the continued approval of an approved child care
service that the provision of care by the service complies with all applicable
requirements imposed by a law of the Commonwealth, or of the State or Territory
in which the service is situated, relating to child care.
It is a condition for the continued approval of an approved child care
service that, if a determination under section 207 is in force:
(a) child care places are allocated to the service under section 208;
and
(b) the service does not provide child care places in excess of the number
of any child care places allocated to the service under section 208.
(1) It is a condition for the continued approval of an approved child care
service that the service complies with any determination in force under this
section.
Imposition of other conditions
(2) The Minister may, by determination, impose conditions for the
continued approval of a class of approved child care services.
(1) It is a condition for the continued approval of an approved child care
service that the service complies with any conditions imposed under subsection
(2).
(2) The Secretary may, by notice to a particular approved child care
service, impose conditions for the continued approval of the service.
Sanctions
(1) If the Secretary is satisfied that an approved child care service has
not complied, or is not complying, with a condition for the continued approval
of the service, the Secretary may do one or more of the following:
(a) vary the conditions for the continued approval of the service imposed
under subsection 200(2);
(b) impose additional conditions for the continued approval of the service
under subsection 200(2);
(c) reduce the number of child care places allocated to the service under
section 208;
(d) suspend the service’s approval;
(e) cancel the service’s approval.
Notice of sanction
(2) If the Secretary does one or more of the things mentioned in
paragraphs (1)(a) to (e), the Secretary must give notice to the service that the
Secretary has done so.
Revocation of suspension
(3) If the Secretary suspends the approval of an approved child service,
the Secretary may at any time, by notice to the service, revoke the suspension
with effect from the day specified in the notice.
Secretary to have regard to any Ministerial determination
(4) The Secretary must have regard to any determination under subsection
(5) in exercising a power under subsection (1) or (3).
Ministerial determination
(5) The Minister may determine:
(a) factors to be taken into account by the Secretary in applying
subsection (1) to approved child care services; or
(b) factors to be taken into account by the Secretary in specifying the
date of effect of a revocation of a suspension under subsection (3).
(1) Before doing a thing mentioned in paragraphs 201(1)(a) to (e), the
Secretary must give a notice to the service concerned that:
(a) states that the Secretary is considering doing the thing;
and
(b) sets out the grounds for doing the thing; and
(c) summarises the evidence and other material on which those grounds are
based; and
(d) summarises the effect of the doing of the thing (including the review
process provided for under this Act) on a person’s entitlement to child
care benefit in respect of child care provided by the service; and
(e) invites the service to make written submissions to the Secretary,
within 28 days, stating why the thing should not be done.
(2) The Secretary must have regard to any submissions made by the service
as mentioned in paragraph (1)(e) in deciding whether to do the thing.
Scope of section
(1) This section sets out circumstances, in addition to those in section
201, in which the Secretary may, or must, cancel the approval of an approved
child care service.
Cancellation on request
(2) The Secretary may cancel an approved child care service’s
approval if the service requests the Secretary in writing to do so.
Cancellation if service should not have been approved
(3) The Secretary must cancel an approved child care service’s
approval if the Secretary is satisfied that the service should not have been
approved.
Cancellation if service fails to provide child care for 3 continuous
months
(4) The Secretary must cancel an approved child care service’s
approval if the service fails to provide child care for a continuous period of 3
months, unless the Secretary is satisfied that, because of special circumstances
affecting the service, the approval should not be cancelled.
Notice to service
(5) If the Secretary cancels an approved child care service’s
approval under this section, the Secretary must give notice to the service that
the Secretary has done so.
Secretary to have regard to any Ministerial determination
(6) The Secretary must have regard to any determination under subsection
(7) in exercising a power under subsection (2).
Ministerial determination
(7) The Minister may determine factors to be taken into account by the
Secretary in deciding whether to grant a request under subsection (2).
(1) Before cancelling an approved child care service’s approval
under subsection 203(3) or (4), the Secretary must give a notice to the service
that:
(a) states that the Secretary is considering cancelling the
service’s approval; and
(b) sets out the grounds on which the cancellation is being considered;
and
(c) summarises the evidence and other material on which those grounds are
based; and
(d) summarises the effect of the notice (including the review processes
provided for under this Act) on a person’s entitlement to child care
benefit in respect of child care provided by the service; and
(e) invites the service to make written submissions to the Secretary,
within 28 days, stating why the approval should not be cancelled.
(2) The Secretary must have regard to any submissions made by the service
as mentioned in paragraph (1)(e) in deciding whether to cancel the
approval.
If an approved child care service has:
(a) after the service was approved, become aware of any matter existing
when the service was approved as a result of which the service should not have
been approved; or
(b) become aware of any matter occurring after the service was approved as
a result of which a condition for the continued approval of the service has not
been complied with;
the service must notify the Secretary in writing of the matter as soon as
practicable after becoming aware of it.
Penalty: 20 penalty units.
Eligibility rules
(1) The Minister may determine:
(a) rules relating to the eligibility of child care services to become
approved for the purposes of the family assistance law; and
(b) rules relating to the eligibility of those services to continue to be
so approved.
Eligibility rules may deal with who may operate a service and change of
operator of a service
(2) Without limiting subsection (1), rules made under that subsection may
specify requirements:
(a) to be met by the operators and staff of services, including
requirements relating to individual suitability to provide child care;
and
(b) to be met by the operator of a service if the operation of the service
is proposed to be transferred from one operator to another.
Exemption from eligibility rules
(3) The Secretary may also determine that one or more of the rules do not
apply to:
(a) specified child care services; or
(b) child care services of a specified class or of specified
classes.
The Minister may determine guidelines about the following:
(a) procedures relating to the allocation of child care places to approved
child care services;
(b) matters to be taken into account in working out the number (if any) of
child care places to be allocated to approved child care services;
(c) the maximum number of places that can be allocated to approved child
care services in a specified class;
(d) any other matters to be taken into account in making such an
allocation.
Initial allocation of child care places
(1) The Secretary must allocate child care places to approved child care
services in accordance with any determination under section 207.
Additional allocation of child care places
(2) If an approved child care service is allocated child care places under
subsection (1), the service may apply to the Secretary for an additional
allocation of child care places.
(3) The application must:
(a) be made in a form and manner required by the Secretary; and
(b) contain any information required by the Secretary; and
(c) be accompanied by any documents required by the Secretary;
and
(d) be accompanied by the fee (if any) prescribed by the regulations for
the making of applications under subsection (2).
(4) The Secretary must, in accordance with the determination under section
207, decide whether or not to grant the application.
(5) The Secretary must give the applicant notice of the decision under
subsection (4). If the Secretary decides to grant the application, the Secretary
must allocate the additional child care places to the applicant.
A determination under subsection 199(2), 201(5), 203(7) or 206(1) or
paragraph 206(3)(b) or section 207 is a disallowable instrument for the purposes
of section 46A of the Acts Interpretation Act 1901.
Who may apply
(1) An individual who provides care, or proposes to provide care, for a
child or children may apply to the Secretary to be approved as a registered
carer for the purposes of the family assistance law.
Exception—individual operates child care service
etc.
(2) However, an individual cannot make an application under subsection (1)
if the individual:
(a) operates an approved child care service; or
(b) operates a child care service that is receiving financial assistance
from the Commonwealth in connection with its operational costs, where the
provision of that assistance is administered by the Department; or
(c) provides child care under a contract with an approved family day care
service.
Form of application
(3) An
application under subsection (1) must:
(a) be made in a form and manner; and
(b) contain any information; and
(c) be accompanied by any documents;
required by the Secretary.
Registration
(1) The Secretary must approve an individual as a registered carer for the
purposes of the family assistance law if:
(a) the individual has made an application in accordance with section 210;
and
(b) the individual either:
(i) meets the age requirement in subsection (2); or
(ii) has a qualification of a kind specified in a determination under
subsection (4); and
(c) the Secretary is satisfied that the applicant meets the requirements
of section 212.
Age requirement
(2) For the purposes of subparagraph (1)(b)(i), an individual meets the
age requirement if:
(a) in the case where a determination under subsection (3) is in
force—the individual has turned the age specified in the determination;
or
(b) in any other case—the individual has turned 18.
(3) The Minister may determine that an individual must have turned the age
specified in the determination for the individual to be eligible to be approved
as a registered carer.
Qualification requirement
(4) The Minister may determine that an individual who does not meet the
age requirement in subsection (2) must have a qualification of a kind specified
in the determination for the individual to be eligible to be approved as a
registered carer.
Certificate of approval of registration
(5) If the Secretary approves an applicant as a registered carer, the
Secretary must give the applicant a certificate of approval.
(1) An applicant meets the requirements of this section if:
(a) the applicant has a tax file number; and
(b) the application contains a statement to that effect.
(2) The Secretary must accept a statement made under paragraph (1)(b)
unless the Commissioner of Taxation has informed the Secretary that the
applicant does not have a tax file number.
(3) This section does not authorise the Secretary:
(a) to require or request a person to quote the person’s tax file
number; or
(b) to seek or obtain, in any way, a person’s tax file number;
or
(c) to record a person’s tax file number.
(4) The Secretary may ask the Commissioner of Taxation to provide
information on whether an applicant has a tax file number.
(1) An approval of an applicant as a registered carer is taken to have
come into force on the later of the following days:
(a) the day on which, in the Secretary’s opinion, the applicant was
first eligible to be approved;
(b) the day occurring 12 months before the day on which the application
for approval was made.
(2) Subject to this Division, an approval remains in force at all times
after it came into force.
(3) If the Secretary is satisfied that the applicant was not eligible to
be approved during a period occurring after the day the applicant’s
approval came into force but before the day on which the application was made,
the Secretary may determine that the approval is taken not to have been in force
during that period.
Compliance with child care laws
(1) It is a condition for the continued approval of an individual as a
registered carer that the provision of care by the individual complies with all
applicable requirements imposed by a law of the Commonwealth, or of the State or
Territory in which the care is provided, relating to child care.
Conditions imposed by notice on individual
(2) The Secretary may, by notice to a particular registered carer, impose
other conditions for the continued approval of the carer.
Conditions imposed by Minister
(3) The Minister may, by determination, impose other conditions for the
continued approval of individuals as registered carers.
Sanctions
(1) If the Secretary is satisfied that a registered carer has not
complied, or is not complying, with a condition for the continued approval of
the carer, the Secretary may do one or more of the following:
(a) vary the conditions for the continued approval of the carer imposed
under subsection 214(2);
(b) impose additional conditions for the continued approval of the carer
under subsection 214(2);
(c) suspend the carer’s approval;
(d) cancel the carer’s approval.
Notice of sanction
(2) If the Secretary does one or more of the things mentioned in
paragraphs (1)(a) to (d), the Secretary must give notice to the registered carer
that the Secretary has done so.
Revocation of suspension
(3) If the Secretary suspends the approval of a registered carer, the
Secretary may at any time, by notice to the carer, revoke the suspension with
effect from the day specified in the notice.
Secretary to have regard to any Ministerial determination
(4) The
Secretary must have regard to any determination under subsection (5) in
exercising a power under subsection (1) or (3).
Ministerial determination
(5) The Minister may determine:
(a) factors to be taken into account by the Secretary in applying
subsection (1) to registered carers; or
(b) factors to be taken into account by the Secretary in specifying the
date of effect of a revocation of a suspension under subsection (3).
(1) Before doing a thing mentioned in paragraphs 215(1)(a) to (d), the
Secretary must give a notice to the registered carer concerned that:
(a) states that the Secretary is considering doing the thing;
and
(b) sets out the grounds for doing the thing; and
(c) summarises the evidence and other material on which those grounds are
based; and
(d) summarises the effect of the doing of the thing (including the review
process provided for under this Act) on a person’s entitlement to child
care benefit in respect of child care provided by the carer; and
(e) invites the carer to make written submissions to the Secretary, within
28 days, stating why the thing should not be done.
(2) The Secretary must have regard to any submissions made by the carer as
mentioned in paragraph (1)(e) in deciding whether to do the thing.
Scope of section
(1) This section sets out circumstances, in addition to those in section
215, in which the Secretary must cancel the approval of a registered
carer.
Cancellation on request
(2) The Secretary must cancel a registered carer’s approval if the
carer requests the Secretary in writing to do so.
Cancellation if carer should not have been approved
(3) The Secretary must cancel a registered carer’s approval if the
Secretary is satisfied that the carer should not have been approved.
Notice to service
(4) If the Secretary cancels a registered carer’s approval under
this section, the Secretary must give notice to the carer that the Secretary has
done so.
(1) Before cancelling a registered carer’s approval under subsection
217(3), the Secretary must give a notice to the carer that:
(a) states that the Secretary is considering cancelling the carer’s
approval; and
(b) sets out the grounds on which the cancellation is being considered;
and
(c) summarises the evidence and other material on which those grounds are
based; and
(d) summarises the effect of the notice (including the review processes
provided for under this Act) on a person’s entitlement to child care
benefit in respect of child care provided by the carer; and
(e) invites the carer to make written submissions to the Secretary, within
28 days, stating why the approval should not be cancelled.
(2) The Secretary must have regard to any submissions made by the carer as
mentioned in paragraph (1)(e) in deciding whether to cancel the
approval.
If a registered carer has:
(a) after the carer was approved, become aware of any matter existing when
the carer was approved as a result of which the carer should not have been
approved; or
(b) become aware of any matter occurring after the carer was approved as a
result of which a condition for the continued approval of the carer has not been
complied with;
the carer must notify the Secretary in writing of the matter as soon as
practicable after becoming aware of it.
Penalty: 20 penalty units.
A determination under subsection 211(3) or (4), 214(3) or 215(5) is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
The Secretary is, subject to any direction of the Minister, to have the
general administration of the family assistance law.
(1) Subject to this section, the Secretary may delegate to an officer all
or any of the powers of the Secretary under the family assistance law.
(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.
(3) The Secretary must not delegate to an officer, except the head of an
agency, the Secretary’s power under paragraph 169(1)(b) (disclosure of
information).
(1) A decision of the Minister or of an officer under the family
assistance law must be in writing.
(2) Such a decision is taken to be in writing if it is made, or recorded,
by means of a computer.
If:
(a) payment of family assistance is based upon data in a computer;
and
(b) the amount or rate of the payment is increased or reduced, or the
payment is stopped, because of the operation of a computer program used under
the control of the Secretary; and
(c) the program causes the change for a reason for which the Secretary
could make the change;
the Secretary is taken to have made the change, in writing, at the time at
which the computer program caused the change to be made.
(1) If notice of a decision of an officer affecting a person’s
entitlement to be paid family assistance under the family assistance law
is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the
person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to
the Secretary;
notice of the decision is taken, for the purposes of the family assistance
law, to have been given to the person.
(2) Notice of a decision of an officer affecting a person’s
entitlement to be paid family assistance under the family assistance law may be
given to a person by properly addressing, prepaying and posting the document as
a letter.
(3) If notice of a decision is given in accordance with subsection (2),
notice of the decision is taken to have been given to the person at the time at
which the notice would be delivered in the ordinary course of the post, unless
the contrary is proved.
The Secretary must, in accordance with section 218 of the Income Tax
Assessment Act 1936, for the purpose of enabling the collection of tax 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 benefit.
(1) If:
(a) a person is entitled to an amount of family assistance (other than
child care benefit); 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.
(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 the amount credited by the
Commissioner in payment of the tax at the time when the Commissioner credits the
amount or at any earlier time that the Commissioner determines.
(3) This section has effect in spite of anything in any other Act or any
other law of the Commonwealth.
(1) If:
(a) a person is entitled to an amount by way of arrears of family
assistance; and
(b) the person incurs a debt under this Act;
the Secretary may determine that the whole or a part of the entitlement to
arrears is to be set off against the debt.
(2) Under subsection (1), the Secretary may set off a person’s
arrears of child care benefit only against a debt the person incurs in relation
to child care benefit.
(3) If the Secretary makes a determination under subsection (1), the
amount of the entitlement to arrears and the amount of the debt are reduced
accordingly.
(1) If:
(a) a person (the debtor) incurs a debt under this Act;
and
(b) another person (the consenting person) is entitled to an
amount by way of arrears of family assistance; and
(c) for the purpose of the recovery of the debt, the consenting person
consents to the deduction of an amount from the consenting person’s
arrears;
the Secretary may determine that the whole or a part of the entitlement to
arrears is to be set off against the debt.
(2) Subsection (1) does not apply to an entitlement to arrears of child
care benefit.
(3) If the Secretary makes a determination under subsection (1), the
amount of the entitlement to arrears and the amount of the debt are reduced
accordingly.
(4) The consenting person may revoke the consent at any time.
(1) All courts are to take judicial notice of a signature that purports to
be attached or appended to any official document produced under the family
assistance law, if the signature is of a person who is or has been an
officer.
(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.
(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.
(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.
(1) The family assistance law applies to an unincorporated body or
association (the body) as if it were a person other than an
individual, but it applies with the following 2 changes.
Imposition of obligations
(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.
Commission of offences
(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.
(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.
(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.
Payments under this Act are to be made out of the Consolidated Revenue
Fund, which is appropriated accordingly.
(1) The Secretary and the Executive Director may agree on administrative
arrangements to further the objectives of Division 2 of Part 5.
(2) The Secretary and the Commissioner of Taxation may agree on
administrative arrangements to further the objectives of this Act.
(3) The Secretary and the Managing Director of the Health Insurance
Commission may agree on administrative arrangements to further the objectives of
this Act.
(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;
and, in particular, may make regulations prescribing penalties of a fine
not exceeding 10 penalty units for any breach of the regulations.
Fees
(2) Without limiting subsection (1), the regulations may prescribe fees
for the making of applications under section 195 or 208. Any such fees must not
be such as to amount to taxation.
Proof of making of claims etc.
(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
(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, the Social Security Appeals Tribunal, or
the Administrative Appeals Tribunal, under Part 5;
that have the effect of creating or increasing an entitlement to be paid
family tax benefit by instalment, only have effect from a specified day before
the making of the decisions.
Conditional eligibility determinations
(5) If regulations providing for the making of determinations as mentioned
in paragraph 49(1)(a) are made, in accordance with section 4 of the Acts
Interpretation Act 1901, before the provisions under which the regulations
are made come into operation, then, in spite of that section, the determinations
may be made at any time after the regulations are made, but do not have effect
before the provisions under which the regulations are made come into
operation.