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This is a Bill, not an Act. For current law, see the Acts databases.
PAID PARENTAL LEAVE BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Paid Parental Leave Bill 2010
No. , 2010
(Families, Housing, Community Services and Indigenous Affairs)
A Bill for an Act to provide for the payment of
parental leave pay, and for related purposes
i Paid Parental Leave Bill 2010 No. , 2010
Contents
Chapter 1--Introduction
1
Part 1-1--Introduction
1
Division 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Act
binds
Crown
................................................................................
2
Division 2--Guide to this Act
3
4
Guide to this Act ................................................................................ 3
Part 1-2--Definitions
7
Division 1--Guide to this Part
7
5
Guide to this Part ............................................................................... 7
Division 2--The Dictionary
8
6 The
Dictionary
...................................................................................
8
Chapter 2--When parental leave pay is payable to a
person
19
Part 2-1--Key provisions
19
Division 1--Guide to this Part
19
7
Guide to this Part ............................................................................. 19
Division 2--When parental leave pay is payable to a person
21
8
A determination must be made for parental leave pay to be
payable to a person .......................................................................... 21
9
For the determination to be made, the person must be eligible ........ 21
10
For the determination to be made, the person must claim ............... 21
11
The determination must specify the person's PPL period ............... 21
Part 2-2--Determinations about whether parental leave pay is
payable to a person
23
Division 1--Guide to this Part
23
12
Guide to this Part ............................................................................. 23
Division 2--Determinations about whether parental leave pay is
payable to a person
24
13
Determination on a primary claim made alone ................................ 24
Paid Parental Leave Bill 2010 No. , 2010 ii
14 Determination
on
primary
and secondary claims made
jointly--claimants sharing parental leave pay ................................. 25
15 Determination
on
primary
and secondary claims made
jointly--secondary claimant to get all the parental leave pay ......... 27
16
Determination on a secondary claim made after the primary
claim ................................................................................................ 29
17 Determination
on
a
tertiary claim .................................................... 30
Division 3--When the Secretary cannot make a determination
that parental leave pay is payable
32
18
The child's birth has not been verified ............................................. 32
19
The child was born before 1 January 2011 ...................................... 32
20 Multiple
births
.................................................................................
33
21
The person etc. has already been paid parental leave pay ................ 33
Division 4--General provisions applying to determinations
about whether parental leave pay is payable
34
22 Assumptions
when
making the determination ................................. 34
23
When the determination is in force .................................................. 34
24
Notice of the determination ............................................................. 34
25
Revoking the determination on request ........................................... 34
Division 5--Initial eligibility determinations
36
26
Initial eligibility determinations ....................................................... 36
27
Assumptions when making the initial eligibility
determination ................................................................................... 36
28
When the initial eligibility determination comes into force ............. 37
29
Notice of the initial eligibility determination ................................... 37
Part 2-3--Eligibility for parental leave pay
38
Division 1--Guide to this Part
38
30
Guide to this Part ............................................................................. 38
Division 2--When a person is eligible for parental leave pay
40
31
When a person is eligible for parental leave pay ............................. 40
Division 3--The work test
42
32
When a person satisfies the work test .............................................. 42
33 The
work test period ........................................................................ 42
34
When a person performs qualifying work ........................................ 43
35
When a person performs paid work ................................................. 43
36
When there is a permissible break ................................................... 44
Division 4--The income test
46
Subdivision A--The income test
46
iii Paid Parental Leave Bill 2010 No. , 2010
37
When a person satisfies the income test ........................................... 46
38 A
person's
adjusted taxable income ................................................ 46
39 The
reference income year .............................................................. 46
40 The
relevant PPL income limit ........................................................ 46
41 The
PPL income limit ...................................................................... 47
Subdivision B--Indexation of the PPL income limit
47
42
Indexation of the PPL income limit ................................................. 47
43 The
indexation factor ....................................................................... 48
44
Rounding off indexed amounts ........................................................ 49
Division 5--The Australian residency test
50
45
When a person satisfies the Australian residency test ..................... 50
46
Effect of absence from Australia on Australian residency test ........ 50
Division 6--Primary carer
52
47
When a person is the primary carer of a child................................. 52
Division 7--Return to work
53
48
When a person returns to work ........................................................ 53
49
When paid work is for a permissible purpose .................................. 53
50
Performing paid work on a keeping in touch day ............................ 53
Part 2-4--Claims for parental leave pay
55
Division 1--Guide to this Part
55
51
Guide to this Part ............................................................................. 55
Division 2--Claims for parental leave pay
56
52 Who
can
claim
.................................................................................
56
53
Types of claims ................................................................................ 56
54
Who can make a primary claim, secondary claim or tertiary
claim ................................................................................................ 56
55
When a claim is effective ................................................................. 57
56
Requirements of the claim ............................................................... 57
57
Nominated start date ........................................................................ 58
58
Expected date of birth and expected day of primary care ................ 59
59
Tax file number statement ............................................................... 59
60
When to claim .................................................................................. 60
61
Claim may be withdrawn or varied .................................................. 60
Chapter 3--Payment of parental leave pay
61
Part 3-1--Instalments of parental leave pay
61
Division 1--Guide to this Part
61
62
Guide to this Part ............................................................................. 61
Paid Parental Leave Bill 2010 No. , 2010 iv
Division 2--Instalments of parental leave pay
62
63 Instalments
of
parental leave pay ..................................................... 62
64 A
person's
instalment period and the payday for an
instalment ......................................................................................... 62
65
The amount of an instalment ........................................................... 63
66
Protection of instalment ................................................................... 64
67 Deductions
authorised by person ..................................................... 64
68 Deductions
for
PAYG withholding ................................................. 65
69 Deductions
relating
to child support ................................................ 65
70
No other deductions ......................................................................... 66
Part 3-2--Payment of instalments by employer
67
Division 1--Guide to this Part
67
71
Guide to this Part ............................................................................. 67
Division 2--Payment of instalments by employer
68
72
When an employer pays instalments ................................................ 68
73
When an employer has been paid enough to fund an
instalment ......................................................................................... 69
74
Method of payment of instalment payable by employer .................. 69
Division 3--PPL funding amounts
71
75
Payment of PPL funding amounts ................................................... 71
76
Rules affecting the amount of a PPL funding amount ..................... 71
77
Notice requirements relating to PPL funding amounts .................... 72
78
PPL funding amounts not public money .......................................... 72
79 Protection
of
PPL
funding amounts ................................................. 72
Division 4--Obligations of employer relating to paying
instalments
73
80
Giving person record of payment .................................................... 73
81 Keeping
records
...............................................................................
73
82
Notifying Secretary if certain events happen ................................... 73
Part 3-3--Payment of instalments by Secretary
76
Division 1--Guide to this Part
76
83
Guide to this Part ............................................................................. 76
Division 2--Payment of instalments by Secretary
77
84
When the Secretary pays instalments .............................................. 77
85
Payment of arrears--employer determination reviewed or
revoked before coming into force .................................................... 78
86
Payment of arrears--employer determination revoked after
coming into force ............................................................................. 79
v Paid Parental Leave Bill 2010 No. , 2010
87
Payment of arrears--extending PPL period after review ................. 80
88
Method of payment of instalment payable by Secretary .................. 80
89
Giving person record of payment .................................................... 81
Part 3-4--General rules relevant to paying instalments
82
Division 1--Guide to this Part
82
90
Guide to this Part ............................................................................. 82
Division 2--General rules relevant to paying instalments
83
91
Effect of the Secretary or employer becoming required to
pay instalments after start of PPL period ......................................... 83
92
Effect of extending PPL period after review ................................... 83
93
Effect on instalment periods of employer determination
coming into force after review ......................................................... 84
94
Effect on instalment periods of revocation etc. ................................ 84
95
Paying instalment on payday for later instalment--no later
instalment ......................................................................................... 85
96
Paying instalment on particular day--complying with
obligation ......................................................................................... 85
97
Effect of garnishee etc. order ........................................................... 85
98
Exemption from operation of workers' compensation and
accident compensation laws ............................................................. 86
99
PPL period is not a period of paid leave .......................................... 86
Part 3-5--Employer determinations
87
Division 1--Guide to this Part
87
100
Guide to this Part ............................................................................. 87
Division 2--Making employer determinations
88
101 Making
employer
determinations .................................................... 88
102
Secretary must give notice of employer determination .................... 91
103
Employer must respond to notice of employer determination ......... 92
104 Requirements
for
an
acceptance notice ............................................ 92
105
Giving bank account and pay cycle information etc. after
review .............................................................................................. 93
106
Effect of decision on review that parental leave pay is
payable ............................................................................................. 94
Division 3--When an employer determination is in force
95
107
When an employer determination comes into force ........................ 95
108
Revocation of an employer determination ....................................... 95
Division 4--Election by employer to pay instalments
98
109
Election by employer to pay instalments ......................................... 98
110 Employer
may
withdraw an election ............................................... 98
Paid Parental Leave Bill 2010 No. , 2010 vi
111 Secretary
may
cancel an election ..................................................... 98
112
When an election is in force............................................................. 99
Division 5--Notice of decisions
100
113
Notice of outcome of a payability determination ........................... 100
114
Notice of varying, setting aside etc. payability determination ....... 100
115 Notice
of
other
decisions ............................................................... 101
Chapter 4--Compliance and enforcement
102
Part 4-1--Information gathering
102
Division 1--Guide to this Part
102
116
Guide to this Part ........................................................................... 102
Division 2--Information gathering
103
Subdivision A--Gathering information from any person
103
117
General power to obtain information ............................................. 103
118
Power to obtain information from a person who owes a debt
to the Commonwealth .................................................................... 103
119
Obtaining information about a person who owes a debt to the
Commonwealth .............................................................................. 104
120 Written
notice
of
requirement ........................................................ 104
121
Obligations not affected by State or Territory laws ....................... 105
122
Offence--failure to comply with requirement ............................... 105
Subdivision B--Gathering information relating to tax file
numbers
106
123
Secretary may require Commissioner of Taxation to provide
tax file numbers etc. ....................................................................... 106
124
Purposes for which tax file numbers may be used ......................... 106
Subdivision C--Obligation to notify of change of circumstances
107
125
Obligation to notify of change of circumstances ........................... 107
Division 3--Confidentiality
108
126 Operation
of
Division
....................................................................
108
127
Obtaining and using protected information ................................... 108
128 Disclosing
personal information .................................................... 108
129 Offence--unauthorised
access
to protected information ............... 110
130
Offence--unauthorised use of protected information .................... 110
131 Offence--soliciting
disclosure of protected information ............... 110
132
Offence--offering to supply protected information ...................... 111
vii Paid Parental Leave Bill 2010 No. , 2010
Division 4--Offences against Parts 7.3 and 7.4 of the Criminal
Code
112
133
Repayment of instalment of parental leave pay or PPL
funding amount .............................................................................. 112
134
Penalty where person convicted of more than one offence ............ 112
135 Joining
of
charges
..........................................................................
112
136 Particulars
of
each offence ............................................................. 113
137
Trial of joined charges ................................................................... 113
138
Evidentiary effect of Secretary's certificate ................................... 113
139
Enforcement of court certificate as judgment ................................ 113
Part 4-2--Compliance
115
Division 1--Guide to this Part
115
140
Guide to this Part ........................................................................... 115
Division 2--Referring matters to the Fair Work Ombudsman
116
141
Functions of the Fair Work Ombudsman ....................................... 116
142
Exercise of compliance powers ..................................................... 116
143
Referring matters to the Fair Work Ombudsman ........................... 116
144
Fair Work Ombudsman to notify of outcome of investigation ...... 117
Division 3--Civil penalty orders
118
145
Involvement in contravention treated in same way as actual
contravention ................................................................................. 118
146 Civil
penalty
provisions ................................................................. 118
147
Civil penalty orders ........................................................................ 119
148
Proceedings may be heard together ............................................... 120
149
Time limit for application for an order .......................................... 120
150
Civil evidence and procedure rules for civil penalty orders ........... 120
151
Conduct contravening more than one civil penalty provision ........ 121
152
Civil proceedings after criminal proceedings ................................ 121
153 Criminal
proceedings
during civil proceedings ............................. 121
154 Criminal
proceedings
after civil proceedings ................................ 121
155
Evidence given in proceedings for penalty not admissible in
criminal proceedings ...................................................................... 122
156
Requirement for person to assist in applications for civil
penalty orders ................................................................................. 122
Division 4--Compliance notices
124
157 Giving
a
compliance notice ........................................................... 124
158
Fair Work Ombudsman to notify of outcome of compliance
notice ............................................................................................. 125
Paid Parental Leave Bill 2010 No. , 2010 viii
Division 5--Infringement notices
126
159 Giving
an
infringement notice ....................................................... 126
160
Withdrawal of an infringement notice ........................................... 128
161
What happens if the penalty is paid ............................................... 128
162
Effect of this Division on civil proceedings ................................... 129
163
Further provision in relation to infringement notices .................... 129
Part 4-3--Debt recovery
130
Division 1--Guide to this Part
130
164
Guide to this Part ........................................................................... 130
Division 2--Main debts recoverable under this Act
132
165
Debts due to the Commonwealth ................................................... 132
166
Parental leave pay instalment debts--instalments paid by
employer ........................................................................................ 132
167
Parental leave pay instalment debts--instalments paid by
Secretary ........................................................................................ 133
168
PPL funding amount debts--amounts not paid as parental
leave pay instalments ..................................................................... 134
169
Wrong person receives parental leave pay instalment or PPL
funding amount .............................................................................. 135
170
Joint and several liability for debts arising because of false
and misleading statements ............................................................. 136
171
Debts under the Data-matching Program (Assistance and
Tax) Act 1990 ................................................................................. 136
Division 3--Parental leave pay recoverable by employees from
employers
137
172
PPL funding amount debts--debts owing by employers to
employees ...................................................................................... 137
Division 4--Debt notices and interest on debts
138
173 Debt
notices--initial notice ........................................................... 138
174
Debt notices--further debt notice if repayments not made ............ 139
175
Interest on debts--when interest becomes payable ....................... 140
176
Interest on debts--application ....................................................... 141
177
Interest on debts--recovery as a debt ............................................ 141
178 Interest
exemption
determinations ................................................. 142
179 Administrative
charge
....................................................................
142
180
Penalty interest rate ........................................................................ 143
Division 5--How the Commonwealth can recover debts
144
181
Debts to which Division 5 applies ................................................. 144
182 How
to
recover debts ..................................................................... 144
183 Legal
proceedings
..........................................................................
145
ix Paid Parental Leave Bill 2010 No. , 2010
184 Garnishee
notices--general ........................................................... 145
185 Garnishee
notices--amounts
paid in compliance .......................... 146
186
Garnishee notices--debt for failure to comply with notice ........... 146
187 Garnishee
notices--offence for non-compliance ........................... 147
188 Garnishee
notices--relationship with other laws ........................... 147
189
Legal proceedings and garnishee notices--time limits for
debt recovery ................................................................................. 147
190
Payment of debts by arrangement .................................................. 149
191
Deductions from instalments payable to another person ............... 149
192
Recovery from an ADI .................................................................. 149
Division 6--Writing off debts
152
193
When debts can be written off ....................................................... 152
Division 7--Waiver of debts
154
194 Waiver
of
debts--general .............................................................. 154
195 Waiver
of
debts--administrative error .......................................... 154
196 Waiver
of
debts--arising from offence ......................................... 154
197 Waiver
of
debts--small debts ........................................................ 155
198 Waiver
of
debts--settlement of civil actions ................................. 155
199 Waiver
of
debts--special circumstances ....................................... 157
200 Waiver
of
debts--determined classes ............................................ 157
Division 8--Miscellaneous
159
201 Overseas
application of debts ........................................................ 159
Chapter 5--Review of decisions
160
Part 5-1--Internal review of decisions
160
Division 1--Guide to this Part
160
202
Guide to this Part ........................................................................... 160
Division 2--Internal review of decisions
161
203 Internal
review--own-initiative review by Secretary .................... 161
204 Internal
review--own-initiative
review and tribunal review ......... 161
205 Internal
review--review
following application ............................. 162
206
Internal review--application for review of claimant decision ....... 162
207
Internal review--application for review of employer
determination decision ................................................................... 163
208 Internal
review--application
for review of employer funding
amount decision ............................................................................. 165
209 Internal
review--withdrawal of application .................................. 165
210
Internal review--when decision made on review comes into
force ............................................................................................... 166
Paid Parental Leave Bill 2010 No. , 2010 x
211
Internal review--notice of decision on review of claimant
decision .......................................................................................... 166
212
Internal review--notice of decision relating to employer .............. 167
Part 5-2--Review by the Social Security Appeals Tribunal
169
Division 1--Guide to this Part
169
213
Guide to this Part ........................................................................... 169
214 SSAT
objective
under this Act ...................................................... 169
Division 2--Review by SSAT of claimant decisions
170
215
Application of this Division ........................................................... 170
216
SSAT review of claimant decision--application for review ......... 171
217
SSAT review of claimant decision--making of application .......... 171
218
SSAT review of claimant decision--review following
application ..................................................................................... 172
219
SSAT review of claimant decision--powers of the SSAT ............ 172
220
SSAT review of claimant decision--when SSAT decision
comes into force ............................................................................. 173
221
SSAT review of claimant decision--variation of decision
before review completed ................................................................ 173
222
SSAT review of claimant decision--parties to review .................. 173
Division 3--Review by SSAT of employer decisions
175
223
Application of this Division ........................................................... 175
224
SSAT review of employer decision--application for review ........ 175
225
SSAT review of employer decision--making of application ........ 176
226
SSAT review of employer decision--review following
application ..................................................................................... 177
227
SSAT review of employer decision--powers of the SSAT ........... 177
228
SSAT review of employer decision--when SSAT decision
comes into force ............................................................................. 177
229
SSAT review of employer decision--variation of decision
before review completed ................................................................ 177
230
SSAT review of employer decision--parties to review ................. 178
Part 5-3--Procedures for review by the Social Security Appeals
Tribunal
179
Division 1--Guide to this Part
179
231
Guide to this Part ........................................................................... 179
Division 2--Preliminary procedures
181
232
Procedure on receipt of application for review by SSAT .............. 181
233
Parties to be given statements about the decision under
review ............................................................................................ 182
xi Paid Parental Leave Bill 2010 No. , 2010
234
Arrangements for hearing of application ....................................... 183
235
Notice of application to person affected by SSAT reviewable
claimant decision ........................................................................... 183
Division 3--Submissions from parties other than PPL agency
heads
185
236
Division does not apply in relation to PPL agency heads .............. 185
237 Submissions
to SSAT .................................................................... 185
238
SSAT hearings on written submissions only ................................. 186
239
SSAT hearings without oral submissions by party ........................ 186
Division 4--Submissions from PPL agency heads
188
240
Submissions from PPL agency heads ............................................ 188
Division 5--Other evidence provisions
189
241
Evidence on oath or affirmation .................................................... 189
242
Provision of further information by Secretary ............................... 189
243
Exercise by Secretary of information-gathering powers ................ 189
244
Power to obtain information .......................................................... 189
Division 6--Pre-hearing conferences
191
245 Pre-hearing
conferences
.................................................................
191
246
Powers of SSAT if parties reach agreement .................................. 192
Division 7--The hearing
193
247 Hearing
procedure
.........................................................................
193
248 Hearing
in
private
..........................................................................
193
249
Restrictions on disclosure of information obtained at hearing ....... 193
Division 8--Other procedural matters
195
250
Adjournment of SSAT hearings ..................................................... 195
251
Withdrawal of application for review ............................................ 195
252
Dismissal of an application ............................................................ 196
253
Presiding member at SSAT hearing ............................................... 196
254
Decision of questions before SSAT ............................................... 196
255
Directions as to procedure for hearings ......................................... 197
256
Costs of review .............................................................................. 198
Division 9--Notice of decisions
199
257 Procedure
following
SSAT decision .............................................. 199
Division 10--Correction of errors in decisions or statements of
reasons
201
258
Correction of errors in decisions or statements of reasons ............. 201
Paid Parental Leave Bill 2010 No. , 2010 xii
Division 11--Appeals and references of questions of law from
the SSAT to the Federal Court
202
259
Appeals and references of questions of law in relation to
SSAT review of employer decisions .............................................. 202
Part 5-4--Review of claimant decisions by the Administrative
Appeals Tribunal
204
Division 1--Guide to this Part
204
260
Guide to this Part ........................................................................... 204
Division 2--Right to review by AAT
205
261
Review of decisions by AAT ......................................................... 205
262
Variation of decision under section 261 before AAT review
completed ....................................................................................... 205
263
Settlement of proceedings before the AAT .................................... 206
Division 3--Modification of AAT Act in relation to section 261
review applications
207
264 Notice
of
application for review .................................................... 207
265
Parties to a review by the AAT ...................................................... 207
266
Lodgment of documents with the AAT ......................................... 207
267
Power of AAT to obtain additional information ............................ 208
268
Operation and implementation of the decision under review ........ 208
269 Failure
of
party
to appear ............................................................... 209
Part 5-5--Other matters relating to review
210
Division 1--Guide to this Part
210
270
Guide to this Part ........................................................................... 210
Division 2--Other matters relating to review
211
271 Authorised
review officers ............................................................. 211
272
Review body may determine events to have happened, or not
to have happened ........................................................................... 211
273
Certain income test determinations not to be changed on
review ............................................................................................ 211
Chapter 6--Miscellaneous
213
Part 6-1--How this Act applies in particular circumstances
213
Division 1--Guide to this Part
213
274
Guide to this Part ........................................................................... 213
Division 2--How this Act applies to an adopted child
214
275
How this Act applies to an adopted child ...................................... 214
xiii Paid Parental Leave Bill 2010 No. , 2010
Division 3--How this Act applies to claims made in exceptional
circumstances and other cases
215
276
How this Act applies to claims made in exceptional
circumstances ................................................................................. 215
277
Primary carers when a child is stillborn or dies ............................. 215
Division 4--How this Act applies to Commonwealth employment
217
278
How this Act applies to Commonwealth employment .................. 217
Part 6-2--Nominees
218
Division 1--Guide to this Part
218
279
Guide to this Part ........................................................................... 218
Division 2--Appointment of nominees
219
280
Appointment of payment nominee ................................................. 219
281
Appointment of correspondence nominee ..................................... 219
282 Provisions
relating
to appointments ............................................... 219
283
Suspension and cancellation of nominee appointments ................. 220
Division 3--Payment of instalments to payment nominee
222
284
Payment of instalments to payment nominee ................................ 222
Division 4--Functions and responsibilities of nominees
223
285
Actions of correspondence nominee on behalf of principal ........... 223
286
Giving of notices to correspondence nominee ............................... 223
287
Compliance by correspondence nominee ...................................... 224
288
Nominee to inform Department of matters affecting ability to
act as nominee ................................................................................ 226
289
Statement by payment nominee regarding disposal of money ....... 227
Division 5--Other matters relating to nominees
229
290
Protection of principal against liability for actions of
nominee ......................................................................................... 229
291
Protection of nominee against criminal liability ............................ 229
292
Duty of nominee to principal ......................................................... 229
293
Saving of Secretary's powers of revocation .................................. 229
294
Saving of Secretary's powers to give notices to principal ............. 230
295
Notification of nominee where notice given to principal ............... 230
296
Right of nominee to attend with principal ..................................... 230
Part 6-3--Other matters
231
Division 1--Guide to this Part
231
297
Guide to this Part ........................................................................... 231
Paid Parental Leave Bill 2010 No. , 2010 xiv
Division 2--The Paid Parental Leave Rules
232
298
The PPL rules ................................................................................ 232
299
Extension of Act to persons who are not employees and
employers ....................................................................................... 232
Division 3--Jurisdiction of courts
233
300 Jurisdiction
of
Federal Court ......................................................... 233
301 Jurisdiction
of
Federal Magistrates Court ...................................... 233
Division 4--Other matters
234
302 General
administration
...................................................................
234
303 Delegation
......................................................................................
234
304
Decisions to be in writing .............................................................. 235
305
Secretary may arrange for use of computer programs to make
decisions ........................................................................................ 235
306
Notice of decisions ........................................................................ 235
307 Appropriation
.................................................................................
236
308 Regulations
....................................................................................
236
Paid Parental Leave Bill 2010 No. , 2010 1
A Bill for an Act to provide for the payment of
1
parental leave pay, and for related purposes
2
The Parliament of Australia enacts:
3
Chapter 1--Introduction
4
Part 1-1--Introduction
5
Division 1--Preliminary
6
1 Short title
7
This Act may be cited as the Paid Parental Leave Act 2010.
8
Chapter 1 Introduction
Part 1-1 Introduction
Division 1 Preliminary
Section 2
2 Paid Parental Leave Bill 2010 No. , 2010
2 Commencement
1
This Act commences on 1 October 2010.
2
3 Act binds Crown
3
(1) This Act binds the Crown in each of its capacities.
4
(2) However, this Act does not make the Crown liable to be prosecuted
5
for an offence.
6
(3) To avoid doubt, subsection (2) does not prevent the Crown from
7
being liable to pay a pecuniary penalty under section 147 or 159.
8
Note:
Section 147 deals with civil penalty orders and section 159 deals with
9
infringement notices.
10
11
Introduction Chapter 1
Introduction Part 1-1
Guide to this Act Division 2
Section 4
Paid Parental Leave Bill 2010 No. , 2010 3
Division 2--Guide to this Act
1
4 Guide to this Act
2
Overview
3
This Act provides for the payment of parental leave pay to a person
4
in the first year after the birth of a child or, for adoption, the
5
placement of a child.
6
Parental leave pay is paid to a person for a particular period. That
7
period is called the person's PPL period. The maximum period for
8
which any person may be paid parental leave pay is 18 weeks. A
9
person's PPL period may be the full 18 weeks or a lesser period
10
(e.g. where the person is not eligible for parental leave pay for that
11
full period).
12
Parental leave pay is paid in instalments at the national minimum
13
wage for each week day during the person's PPL period. It is paid
14
by either the person's employer or the Secretary.
15
Chapter 2--When parental leave pay is payable to a person
16
Chapter 2 sets out when parental leave pay is payable to a person.
17
The key provisions for the Chapter are found in Part 2-1.
18
A person can only be paid parental leave pay if the Secretary
19
makes a determination that parental leave pay is payable to the
20
person. Part 2-2 has the rules about when the Secretary can make
21
that determination.
22
The Secretary cannot make that determination if the person is not
23
eligible for parental leave pay. Part 2-3 has the rules about
24
eligibility. For the main case, to be eligible a person must
25
(broadly):
26
(a) satisfy the work test, the income test and the Australian
27
residency test; and
28
Chapter 1 Introduction
Part 1-1 Introduction
Division 2 Guide to this Act
Section 4
4 Paid Parental Leave Bill 2010 No. , 2010
(b) be the child's primary carer; and
1
(c) not have returned to work; and
2
(d) not be entitled to baby bonus.
3
The Secretary also cannot make that determination if the person
4
has not made a claim for parental leave pay. Part 2-4 has the rules
5
about claims.
6
There are 3 types of claims: a primary claim, a secondary claim
7
and (in rare cases) a tertiary claim. These claims relate to each
8
other, although the primary claim is the main one--a secondary or
9
tertiary claim cannot be made without it. The primary claim will
10
often be the only claim that is made. If a secondary or tertiary
11
claim is made, that claim will be for the part of the maximum 18
12
week period (or lesser period) in which parental leave pay was not
13
payable to the primary claimant.
14
Chapter 3--Payment of parental leave pay
15
Chapter 3 sets out how parental leave pay is paid to a person.
16
Part 3-1 is about instalments of parental leave pay. It deals with
17
when instalments must be paid, whether the person's employer or
18
the Secretary must pay them and the amount of the instalments.
19
Part 3-2 sets out when a person's employer must pay instalments to
20
the person. The employer is only required to do that if an employer
21
determination has come into force for the employer and the person,
22
and the employer has been paid enough by the Secretary to fund
23
the instalment.
24
Part 3-3 sets out when the Secretary must pay instalments directly
25
to the person. The Secretary is required to do that if an employer
26
determination is never made for the person (e.g. the person is a
27
contractor and so does not have an employer). There are some
28
other circumstances in which the Secretary is also required to pay
29
instalments directly to the person (such as when an employer
30
determination is being reviewed or has been revoked).
31
Introduction Chapter 1
Introduction Part 1-1
Guide to this Act Division 2
Section 4
Paid Parental Leave Bill 2010 No. , 2010 5
Part 3-4 has general rules about the payment of instalments (such
1
as what happens when an instalment cannot be paid on the day
2
specified in this Act).
3
Part 3-5 is about employer determinations. If an employer
4
determination is in force for an employer and a person, the
5
employer must pay instalments to the person. The Secretary must
6
be satisfied that certain conditions have been met before the
7
Secretary can make an employer determination.
8
Chapter 4--Compliance and enforcement
9
Chapter 4 deals with compliance and enforcement.
10
Part 4-1 allows the Secretary to gather information for the purposes
11
of checking compliance with this Act. It also deals with the
12
confidentiality of personal and protected information.
13
Part 4-2 deals with other compliance matters. It allows the
14
Secretary to refer matters to the Fair Work Ombudsman for
15
investigation if the Secretary has reason to believe that an
16
employer has not complied with certain obligations under this Act.
17
It also deals with civil penalty provisions, compliance notices and
18
infringement notices.
19
Part 4-3 provides for debts in relation to the parental leave pay
20
scheme, and for the recovery of debts owing to the
21
Commonwealth.
22
Chapter 5--Review of decisions
23
Chapter 5 is about administrative and judicial review of decisions
24
made under this Act.
25
Part 5-1 allows the Secretary, on his or her own initiative, to
26
conduct an internal review of decisions made under this Act. It also
27
allows a person whose interests are affected by certain types of
28
decisions to seek internal review of those decisions, and an
29
employer to seek internal review of certain types of decisions that
30
affect employers.
31
Chapter 1 Introduction
Part 1-1 Introduction
Division 2 Guide to this Act
Section 4
6 Paid Parental Leave Bill 2010 No. , 2010
Part 5-2 allows a person to apply to the Social Security Appeals
1
Tribunal for review of a decision made under this Act.
2
Part 5-3 is about the procedures to be followed when the Social
3
Security Appeals Tribunal reviews a decision.
4
Part 5-4 allows the Secretary or a person whose interests are
5
affected by a decision made by the Social Security Appeals
6
Tribunal to apply to the Administrative Appeals Tribunal for
7
review of the decision.
8
Part 5-5 has miscellaneous provisions relating to reviews of
9
decisions under this Act.
10
Chapter 6--Miscellaneous
11
Chapter 6 has miscellaneous provisions.
12
Part 6-1 has rules that modify this Act so that it applies correctly in
13
3 limited kinds of cases--adoption, claims made in exceptional
14
circumstances etc. and Commonwealth employment.
15
Part 6-2 is about payment nominees (who are people who can
16
receive payments of instalments of parental leave pay on behalf of
17
other people for the purposes of this Act) and correspondence
18
nominees (who are people who can receive notices on behalf of
19
other people for the purposes of this Act).
20
Part 6-3 deals with other miscellaneous matters, such as the PPL
21
rules, delegations and regulations.
22
23
Introduction Chapter 1
Definitions Part 1-2
Guide to this Part Division 1
Section 5
Paid Parental Leave Bill 2010 No. , 2010 7
Part 1-2--Definitions
1
Division 1--Guide to this Part
2
5 Guide to this Part
3
This Part is about the terms that are defined in this Act.
4
Division 2 has the Dictionary (see section 6). The Dictionary is a
5
list of every term that is defined in this Act. A term will either be
6
defined in the Dictionary itself, or in another provision of this Act.
7
If another provision defines the term, the Dictionary will have a
8
signpost to that definition.
9
10
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
8 Paid Parental Leave Bill 2010 No. , 2010
Division 2--The Dictionary
1
6 The Dictionary
2
In this Act:
3
AAT means the Administrative Appeals Tribunal.
4
AAT Act means the Administrative Appeals Tribunal Act 1975.
5
ABN (short for Australian Business Number) has the same
6
meaning as in the A New Tax System (Australian Business Number)
7
Act 1999.
8
acceptance notice: see section 103.
9
ADI (short for authorised deposit-taking institution) means a body
10
corporate that is an ADI for the purposes of the Banking Act 1959.
11
adjusted taxable income: see section 38.
12
Australia, when used in a geographical sense, includes the
13
Territory of Cocos (Keeling) Islands and the Territory of Christmas
14
Island.
15
Australian-based employee means an employee:
16
(a) whose primary place of work is in Australia; or
17
(b) who is employed by an Australian government employer.
18
Australian government employer means:
19
(a) the Commonwealth; or
20
(b) a State; or
21
(c) a Territory; or
22
(d) a body corporate established for a public purpose by or under
23
a law of the Commonwealth, a State or a Territory; or
24
(e) a body corporate:
25
(i) incorporated under a law of the Commonwealth, a State
26
or a Territory; and
27
(ii) in which the Commonwealth, a State or a Territory, has
28
a controlling interest.
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
Paid Parental Leave Bill 2010 No. , 2010 9
Australian residency test: see sections 45 and 46.
1
Australian resident has the same meaning as in the Social Security
2
Act.
3
authorised party, in relation to the adoption of a child, means a
4
person or agency that, under the law of the State, Territory or
5
foreign country whose courts have jurisdiction in relation to the
6
adoption, is authorised to conduct negotiations or arrangements for
7
the adoption of children.
8
authorised review officer means an officer authorised under
9
section 271 to be an authorised review officer for the purposes of
10
this Act.
11
baby bonus has the same meaning as in the Family Assistance Act.
12
bank account includes an account held with an ADI.
13
bank account information: see subsection 104(2).
14
birth verification form: see subsection 18(4).
15
business includes any profession, trade, employment, vocation or
16
calling, but does not include occupation as an employee.
17
calendar month means one of the 12 months of the year.
18
CEO means:
19
(a) in relation to the Commonwealth Services Delivery
20
Agency--the Chief Executive Officer of the Agency; and
21
(b) in relation to Medicare Australia--the Chief Executive
22
Officer of Medicare Australia.
23
civil penalty order: see subsection 147(2).
24
civil penalty provision: see section 146.
25
claim means a primary claim, a secondary claim or a tertiary claim
26
for parental leave pay for a child.
27
claimant means a person who is a primary claimant, secondary
28
claimant or tertiary claimant.
29
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
10 Paid Parental Leave Bill 2010 No. , 2010
claimant decision: see section 206.
1
Commonwealth agency means any of the following:
2
(a) a Department of State;
3
(b) a Department of the Parliament;
4
(c) a prescribed Agency (within the meaning of the Financial
5
Management and Accountability Act 1997) that forms part of
6
the Commonwealth;
7
(d) any other unincorporated body established for a public
8
purpose by or under a law of the Commonwealth.
9
compliance notice: see subsection 157(3).
10
controls an entity: see subsection 35(4).
11
correspondence nominee means a person who is appointed as a
12
correspondence nominee under section 281.
13
daily national minimum wage amount: see subsection 65(2).
14
date of the further debt notice: see section 174.
15
date of the initial debt notice: see section 173.
16
day of placement of a child with a person: see subsection 275(3).
17
debt payment arrangement: see section 190.
18
decision has the same meaning as in the AAT Act.
19
defence force member means a member of the Australian Defence
20
Force.
21
effective claim means a claim that is made in accordance with
22
Part 2-4.
23
eligible for parental leave pay: see section 31.
24
employee has its ordinary meaning and:
25
(a) includes a reference to a person who is usually such an
26
employee; and
27
(b) does not include a person on a vocational placement.
28
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
Paid Parental Leave Bill 2010 No. , 2010 11
employer has its ordinary meaning and includes a reference to a
1
person who is usually such an employer.
2
employer determination: see section 101.
3
employer determination decision: see section 207.
4
employer funding amount decision: see section 208.
5
engage in conduct means:
6
(a) do an act; or
7
(b) omit to perform an act.
8
entity means any of the following:
9
(a) a natural person;
10
(b) a body corporate;
11
(c) a body politic;
12
(d)
a
partnership;
13
(e) any other unincorporated association or body of persons;
14
(f)
a
trust.
15
exceptional circumstances: a claim is made in exceptional
16
circumstances if it is made by a person who satisfies:
17
(a) paragraph 54(1)(c) (which deals with primary claims); or
18
(b) paragraph 54(2)(d) (which deals with secondary claims); or
19
(c) subsection 54(3) (which deals with tertiary claims).
20
Fair Work Act means the Fair Work Act 2009.
21
Family Assistance Act means the A New Tax System (Family
22
Assistance) Act 1999.
23
Federal Court means the Federal Court of Australia.
24
final debt payment day: see section 175.
25
financial institution means:
26
(a) an ADI; or
27
(b) the Reserve Bank of Australia; or
28
(c) a person who carries on State banking within the meaning of
29
paragraph 51(xiii) of the Constitution.
30
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
12 Paid Parental Leave Bill 2010 No. , 2010
further debt notice: see section 174.
1
garnishee, in relation to a garnishee notice: see section 184.
2
garnishee notice: see section 184.
3
holder, of a visa, has the same meaning as in the Migration Act
4
1958.
5
income test: see section 37.
6
income year has the same meaning as in the Income Tax
7
Assessment Act 1997.
8
indexation day: see subsection 42(1).
9
indexation factor: see subsection 43(1).
10
indexed amount: see subsection 42(2).
11
infringement notice: see subsections 159(1) and (2).
12
initial eligibility determination: see section 26.
13
insolvent: a person is insolvent if:
14
(a) for a natural person:
15
(i) the person is an insolvent under administration (within
16
the meaning of the Corporations Act 2001); or
17
(ii) the person is a debtor in relation to a debt agreement
18
under Part IX of the Bankruptcy Act 1966 that has not
19
ended or been terminated; and
20
(b) for a person that is or was a body corporate:
21
(i) the person is an externally-administered body corporate
22
(within the meaning of the Corporations Act 2001) or
23
an entity with a similar status under a law of a foreign
24
country; or
25
(ii) a provisional liquidator has been appointed in relation to
26
the person under section 472 of the Corporations Act
27
2001; or
28
(iii) a person with a similar status to a provisional liquidator
29
has been appointed in relation to the person under a law
30
of a foreign country.
31
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
Paid Parental Leave Bill 2010 No. , 2010 13
instalment means an instalment of parental leave pay.
1
instalment period for a person: see section 64.
2
interest exemption determination: see subsection 178(1).
3
involved in a contravention of a civil penalty provision: see
4
subsection 145(2).
5
keeping in touch day: see section 50.
6
law enforcement officer means:
7
(a) a member of a police force or police service of the
8
Commonwealth, a State or a Territory; or
9
(b) a person appointed to a position for the purposes of being
10
trained as a member of a police force or police service of the
11
Commonwealth, a State or a Territory; or
12
(c) a person who has the powers and duties of a member of a
13
police force or police service of the Commonwealth, a State
14
or a Territory;
15
and, without limiting paragraphs (a), (b) and (c), includes a police
16
reservist, a police recruit, a police cadet, a junior constable, a
17
police medical officer, a special constable, an ancillary constable
18
or a protective services officer.
19
maximum PPL period: see subsection 11(3).
20
maximum PPL period end day: see subsection 11(5).
21
maximum PPL period start day: see subsection 11(4).
22
minimum amount for a PPL funding amount: see subsection 76(2).
23
national minimum wage order has the same meaning as in the Fair
24
Work Act.
25
nominated start date: see subsection 57(1).
26
nominee means a correspondence nominee or a payment nominee.
27
officer means a person performing duties, or exercising powers or
28
functions, under or in relation to this Act.
29
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
14 Paid Parental Leave Bill 2010 No. , 2010
original debt: see section 184.
1
original debtor: see section 184.
2
paid enough to fund an instalment: see section 73.
3
paid work: see section 35.
4
parent:
5
(a) when used in relation to a child who has been adopted--
6
means an adoptive parent of the child; and
7
(b) when used in relation to a child born because of the carrying
8
out of an artificial conception procedure--means a person
9
who is a parent of the child under section 60H of the Family
10
Law Act 1975; and
11
(c) when used in relation to a child born because of a surrogacy
12
arrangement--includes a person who is a parent of the child
13
under section 60HB of the Family Law Act 1975.
14
parental leave pay means payments of parental leave pay under
15
this Act.
16
partner has the same meaning as in the Social Security Act.
17
payability determination means a determination made under
18
section 13, 14, 15, 16 or 17 that parental leave pay is, or is not,
19
payable to a person for a child.
20
pay cycle information: see subsection 104(3).
21
payday for an instalment: see section 64.
22
payment nominee means a person who is appointed as a payment
23
nominee under section 280.
24
payroll cut-off for an instalment that is payable to a person means
25
the last day on which the person's employer can reasonably make
26
changes to the instalment to be paid to, or in relation to, the person
27
on the person's payday for the instalment.
28
penalty interest rate: see section 180.
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
Paid Parental Leave Bill 2010 No. , 2010 15
penalty unit has the same meaning as in section 4AA of the Crimes
1
Act 1914.
2
permissible break: see subsection 36(1).
3
permissible purpose: see section 49.
4
PPL is short for paid parental leave.
5
PPL agency means:
6
(a) the Department; or
7
(b) the Commonwealth Services Delivery Agency; or
8
(c)
Medicare
Australia.
9
PPL agency head means:
10
(a) for the Department--the Secretary; or
11
(b) for the Commonwealth Services Delivery Agency--the CEO
12
of the Agency; or
13
(c) for Medicare Australia--the CEO of Medicare Australia.
14
PPL day: see subsection 63(3).
15
PPL funding amount: see subsection 75(1).
16
PPL income limit: see section 41.
17
PPL period: see subsection 11(1).
18
PPL requirement: see subsection 287(6).
19
PPL rules (short for Paid Parental Leave Rules) means the rules
20
made by the Minister under section 298.
21
primary carer: see section 47.
22
primary claim: see subsection 53(2).
23
primary claimant means a person who has made an effective
24
primary claim for parental leave pay for a child.
25
principal in relation to a nominee, means the person in relation to
26
whom the nominee was appointed.
27
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
16 Paid Parental Leave Bill 2010 No. , 2010
Principal Member means the Principal Member of the Social
1
Security Appeals Tribunal.
2
protected information means:
3
(a) information about a person that is or was held in the records
4
of the Department or the Commonwealth Services Delivery
5
Agency; or
6
(b) information about a person obtained by an officer under this
7
Act that is or was held in the records of Medicare Australia;
8
or
9
(c) information to the effect that there is no information about a
10
person held in the records of a PPL agency.
11
provisional indexed amount: see section 42.
12
qualifying period: see section 32.
13
qualifying work: see section 34.
14
reference income year: see section 39.
15
reference period: see subsection 47(2).
16
relevant PPL income limit: see section 40.
17
resides in Australia has the same meaning as in the Social Security
18
Act.
19
returns to work: see section 48.
20
saved amount: see subsection 97(2).
21
secondary claim: see subsection 53(3).
22
secondary claimant means a person who has made an effective
23
secondary claim for parental leave pay for a child for which
24
another person has made a primary claim.
25
Secretary means the Secretary of the Department.
26
service arrangements has the same meaning as in:
27
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
Paid Parental Leave Bill 2010 No. , 2010 17
(a) in relation to the CEO of the Commonwealth Services
1
Delivery Agency--section 3 of the Commonwealth Services
2
Delivery Agency Act 1997; and
3
(b) in relation to the CEO of Medicare Australia--section 3 of
4
the Medicare Australia Act 1973.
5
Social Security Act means the Social Security Act 1991.
6
special category visa has the same meaning as in the Migration Act
7
1958.
8
SSAT means the Social Security Appeals Tribunal.
9
SSAT reviewable claimant decision: see section 215.
10
SSAT reviewable employer decision: see section 223.
11
stillborn, in relation to a child, means a child:
12
(a) who weighs at least 400 grams at delivery or whose period of
13
gestation was at least 20 weeks; and
14
(b) who has not breathed since delivery; and
15
(c) whose heart has not beaten since delivery.
16
subject to review: an employer determination is subject to review
17
until:
18
(a) any applicable time limits for applying for a review (however
19
described) or lodging an appeal (however described) of or in
20
relation to the determination have expired; and
21
(b) if there is such a review or appeal of or in relation to the
22
determination--the review or appeal (and any later reviews
23
or appeals) have been finally disposed of.
24
tax file number has the same meaning as in section 202A of the
25
Income Tax Assessment Act 1936.
26
tax file number statement: see subsection 59(1).
27
tertiary claim: see subsection 53(4).
28
tertiary claimant means a person who has made an effective
29
tertiary claim for parental leave pay for a child for which another
30
person has made a secondary claim.
31
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
18 Paid Parental Leave Bill 2010 No. , 2010
this Act includes the PPL rules and the regulations.
1
transfer day: see subsections 84(3), (4) and (5).
2
verifies a child's birth: see section 18.
3
week day means a day that is not a Saturday or a Sunday.
4
working day means a day that is not a Saturday, a Sunday or a
5
public holiday.
6
work test: see section 32.
7
work test period: see section 33.
8
9
When parental leave pay is payable to a person Chapter 2
Key provisions Part 2-1
Guide to this Part Division 1
Section 7
Paid Parental Leave Bill 2010 No. , 2010 19
Chapter 2--When parental leave pay is
1
payable to a person
2
Part 2-1--Key provisions
3
Division 1--Guide to this Part
4
7 Guide to this Part
5
This Part has the key provisions for this Chapter (which deals with
6
when parental leave pay is payable to a person).
7
A person can only be paid parental leave pay if the Secretary
8
makes a determination that parental leave pay is payable to the
9
person. Part 2-2 has the rules about when the Secretary can make
10
that determination.
11
The Secretary cannot make that determination if the person has not
12
made a claim for parental leave pay. Part 2-4 has the rules about
13
claims. There are 3 types of claims: a primary claim, a secondary
14
claim and (in rare cases) a tertiary claim. These claims relate to
15
each other, although the primary claim is the main one--a
16
secondary or tertiary claim cannot be made without it. The primary
17
claim will often be the only claim that is made.
18
If the Secretary makes a determination that parental leave pay is
19
payable to a person for a child, the parental leave pay is payable for
20
the particular period that is specified in the determination. This
21
period is the person's PPL period. The maximum period for which
22
any person may be paid parental leave pay is 18 weeks. A person's
23
PPL period may be the full 18 weeks or a lesser period (e.g. where
24
the person is not eligible for parental leave pay for that full period).
25
If a secondary or tertiary claim is made, that claim will be for the
26
part of the maximum 18 week period (or lesser period) in which
27
parental leave pay was not payable to the primary claimant. The
28
person's employer or the Secretary will pay instalments of parental
29
Chapter 2 When parental leave pay is payable to a person
Part 2-1 Key provisions
Division 1 Guide to this Part
Section 7
20 Paid Parental Leave Bill 2010 No. , 2010
leave pay for that period (see Chapter 3 for the rules about how the
1
person is paid parental leave pay).
2
3
When parental leave pay is payable to a person Chapter 2
Key provisions Part 2-1
When parental leave pay is payable to a person Division 2
Section 8
Paid Parental Leave Bill 2010 No. , 2010 21
Division 2--When parental leave pay is payable to a
1
person
2
8 A determination must be made for parental leave pay to be
3
payable to a person
4
Parental leave pay is payable to a person for a child for a period if
5
a determination of the Secretary that parental leave pay is payable
6
to the person for that period is in force under section 13, 14, 15, 16
7
or 17.
8
Note:
See Part 2-2 for the rules about when the Secretary can make a
9
determination that parental leave pay is, or is not, payable to a person.
10
9 For the determination to be made, the person must be eligible
11
The Secretary cannot make a determination that parental leave pay
12
is payable to a person for a child for a period unless the person was
13
or will be eligible for parental leave pay during the period.
14
Note:
See Part 2-3 for the rules about when a person is eligible for parental
15
leave pay.
16
10 For the determination to be made, the person must claim
17
The Secretary cannot make a determination that parental leave pay
18
is payable to a person for a child for a period unless the person has
19
made:
20
(a) an effective primary claim for the child (in which case the
21
person is the primary claimant); or
22
(b) an effective secondary claim for the child (in which case the
23
person is the secondary claimant); or
24
(c) an effective tertiary claim for the child (in which case the
25
person is the tertiary claimant).
26
Note:
See Part 2-4 for the rules about how to make an effective claim.
27
11 The determination must specify the person's PPL period
28
(1) If the Secretary makes a determination that parental leave pay is
29
payable to a person for a child, the Secretary must specify, in the
30
Chapter 2 When parental leave pay is payable to a person
Part 2-1 Key provisions
Division 2 When parental leave pay is payable to a person
Section 11
22 Paid Parental Leave Bill 2010 No. , 2010
determination, the period for which parental leave pay is payable to
1
the person. That period is the person's PPL period.
2
Note:
For a primary claimant's PPL period, see subsections 13(3) and 14(3).
3
For a secondary claimant's PPL period, see subsections 14(6), 15(5)
4
and 16(4). For a tertiary claimant's PPL period, see subsection 17(3).
5
(2) A person's PPL period must be the same as, or within, the
6
maximum PPL period for the child.
7
(3)
The
maximum PPL period for a child is the period that:
8
(a) starts on the child's maximum PPL period start day; and
9
(b) ends on the child's maximum PPL period end day.
10
(4)
The
maximum PPL period start day for a child is:
11
(a) if, on or before the day (the relevant day) that is 28 days after
12
the day the child was born, the primary claimant both made
13
an effective claim for parental leave pay for the child and
14
verified the child's birth--the later of the following days:
15
(i) the day the child was born;
16
(ii) the primary claimant's nominated start date; and
17
(b) if, on or before the relevant day, the primary claimant made
18
an effective claim for parental leave pay for the child but did
19
not verify the child's birth--the later of the following days:
20
(i) the day the primary claimant verifies the child's birth;
21
(ii) the primary claimant's nominated start date; and
22
(c) if the primary claimant makes an effective claim for parental
23
leave pay for the child after the relevant day--the later of the
24
following days:
25
(i) the day the claim is made;
26
(ii) the primary claimant's nominated start date.
27
(5)
The
maximum PPL period end day for a child is the earlier of the
28
following days:
29
(a) the day that is 125 days after the maximum PPL period start
30
day (which is 18 weeks from (and including) that start day);
31
(b) the day before the child's first birthday.
32
33
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
Guide to this Part Division 1
Section 12
Paid Parental Leave Bill 2010 No. , 2010 23
Part 2-2--Determinations about whether parental
1
leave pay is payable to a person
2
Division 1--Guide to this Part
3
12 Guide to this Part
4
This Part is about the Secretary making determinations about
5
whether parental leave pay is payable to a person. These
6
determinations are payability determinations. A person cannot be
7
paid parental leave pay unless there is a payability determination
8
that parental leave pay is payable to the person.
9
Division 2 has the rules that apply to the Secretary when making a
10
payability determination. Different rules apply depending on the
11
type of claim and, for a primary or secondary claim, whether it was
12
made by itself or at the same time as another claim.
13
Division 3 has restrictions that apply in particular circumstances to
14
prevent the Secretary from making a payability determination that
15
parental leave pay is payable to a person (for example, where the
16
child's birth has not been verified or the person has already been
17
paid parental leave pay for the child).
18
Division 4 has general rules that apply to payability determinations
19
(for example, if the Secretary makes a determination, the Secretary
20
must give a notice of it to the claimant).
21
Division 5 deals with initial eligibility determinations. These
22
determinations can be made by the Secretary before the Secretary
23
makes a payability determination. The Secretary can make an
24
initial eligibility determination if the Secretary is satisfied that the
25
person satisfies, or will satisfy, particular eligibility criteria (the
26
work test, the income test and the Australian residency test). If the
27
Secretary makes a determination, the Secretary must give a notice
28
of it to the claimant.
29
30
Chapter 2 When parental leave pay is payable to a person
Part 2-2 Determinations about whether parental leave pay is payable to a person
Division 2 Determinations about whether parental leave pay is payable to a person
Section 13
24 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Determinations about whether parental leave
1
pay is payable to a person
2
13 Determination on a primary claim made alone
3
When a claim is to be determined under this section
4
(1)
If:
5
(a) a primary claimant has made an effective primary claim for
6
parental leave pay for a child; and
7
(b) another person has not made an effective secondary claim for
8
parental leave pay for the child at the same time;
9
the Secretary must make a determination on the primary claim
10
under this section.
11
When parental leave pay is payable to primary claimant
12
(2) The Secretary must determine that parental leave pay is payable to
13
the primary claimant for the primary claimant's PPL period if,
14
when making the determination, the Secretary is satisfied that the
15
primary claimant was or will be eligible for parental leave pay on
16
each day in the period that:
17
(a) starts on the day the child was born; and
18
(b) ends on the last day of the primary claimant's PPL period.
19
Note:
The Secretary is prevented from making a determination under this
20
subsection in certain circumstances: see Division 3.
21
Primary claimant's PPL period
22
(3) The Secretary must specify in the determination under
23
subsection (2) that the primary claimant's PPL period:
24
(a) starts on the child's maximum PPL period start day; and
25
(b)
ends
on:
26
(i) if the Secretary is satisfied that the primary claimant
27
was or will be eligible on each day in the child's
28
maximum PPL period--the child's maximum PPL
29
period end day; or
30
(ii) if the Secretary is satisfied that the primary claimant
31
was or will be eligible for a period that is shorter than
32
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
Determinations about whether parental leave pay is payable to a person Division 2
Section 14
Paid Parental Leave Bill 2010 No. , 2010 25
the child's maximum PPL period--the last day in the
1
child's maximum PPL period that the primary claimant
2
was or will be eligible.
3
When parental leave pay is not payable to primary claimant
4
(4) The Secretary must determine that parental leave pay is not
5
payable to the primary claimant if the Secretary is not satisfied of
6
the matters in subsection (2).
7
14 Determination on primary and secondary claims made jointly--
8
claimants sharing parental leave pay
9
When a claim is to be determined under this section
10
(1)
If:
11
(a) a primary claimant has made an effective primary claim for
12
parental leave pay for a child; and
13
(b) a secondary claimant has made an effective secondary claim
14
for parental leave pay for the child at the same time; and
15
(c) in the primary claim, the primary claimant requested that
16
parental leave pay that is or may be payable for the child be
17
shared between the primary claimant and the secondary
18
claimant;
19
the Secretary must make a determination on the primary claim and
20
the secondary claim under this section.
21
When parental leave pay is payable to primary claimant
22
(2) The Secretary must determine that parental leave pay is payable to
23
the primary claimant for the primary claimant's PPL period if,
24
when making the determination, the Secretary is satisfied that the
25
primary claimant was or will be eligible for parental leave pay on
26
each day in the period that:
27
(a) starts on the day the child was born; and
28
(b) ends on the last day of the primary claimant's PPL period.
29
Note:
The Secretary is prevented from making a determination under this
30
subsection in certain circumstances: see Division 3.
31
Chapter 2 When parental leave pay is payable to a person
Part 2-2 Determinations about whether parental leave pay is payable to a person
Division 2 Determinations about whether parental leave pay is payable to a person
Section 14
26 Paid Parental Leave Bill 2010 No. , 2010
Primary claimant's PPL period
1
(3) The Secretary must specify in the determination under
2
subsection (2) that the primary claimant's PPL period:
3
(a) starts on the child's maximum PPL period start day; and
4
(b) ends on the last day in the child's maximum PPL period that
5
the Secretary is satisfied that the primary claimant was or
6
will be eligible.
7
When parental leave pay is not payable to primary claimant
8
(4) The Secretary must determine that parental leave pay is not
9
payable to the primary claimant if the Secretary is not satisfied of
10
the matters in subsection (2).
11
When parental leave pay is payable to secondary claimant
12
(5) The Secretary must determine that parental leave pay is payable to
13
the secondary claimant for the secondary claimant's PPL period if,
14
when making the determination, the Secretary is satisfied that:
15
(a) a determination has been made under subsection (2) for the
16
primary claimant; and
17
(b) the secondary claimant was or will be eligible for parental
18
leave pay on each day in the secondary claimant's PPL
19
period.
20
Note:
The Secretary is prevented from making a determination under this
21
subsection in certain circumstances: see Division 3.
22
Secondary claimant's PPL period
23
(6) The Secretary must specify in the determination under
24
subsection (5) that the secondary claimant's PPL period:
25
(a) starts on the first day after the primary claimant's PPL period
26
ends; and
27
(b)
ends
on:
28
(i) if the Secretary is satisfied that the secondary claimant
29
was or will be eligible on each day that remains in the
30
child's maximum PPL period--the child's maximum
31
PPL period end day; or
32
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
Determinations about whether parental leave pay is payable to a person Division 2
Section 15
Paid Parental Leave Bill 2010 No. , 2010 27
(ii) otherwise--the last day in the child's maximum PPL
1
period that the Secretary is satisfied that the secondary
2
claimant was or will be eligible.
3
When parental leave pay is not payable to secondary claimant
4
(7) The Secretary must determine that parental leave pay is not
5
payable to the secondary claimant if the Secretary is not satisfied
6
of the matters in subsection (5).
7
15 Determination on primary and secondary claims made jointly--
8
secondary claimant to get all the parental leave pay
9
When a claim is to be determined under this section
10
(1)
If:
11
(a) a primary claimant has made an effective primary claim for
12
parental leave pay for a child; and
13
(b) a secondary claimant has made an effective secondary claim
14
for parental leave pay for the child at the same time; and
15
(c) in the primary claim, the primary claimant requested that the
16
secondary claimant be paid the full amount of parental leave
17
pay that is or may be payable for the child;
18
the Secretary must make a determination on the primary claim and
19
the secondary claim under this section.
20
When parental leave pay is not payable to primary claimant
21
(2) The Secretary must determine that parental leave pay is not
22
payable to the primary claimant.
23
When parental leave pay is payable to secondary claimant
24
(3) The Secretary must determine that parental leave pay is payable to
25
the secondary claimant for the secondary claimant's PPL period if,
26
when making the determination, the Secretary is satisfied that:
27
(a) the primary claimant:
28
(i) satisfies the work test and income test on that day; and
29
(ii) satisfied the Australian residency test on the day the
30
child was born; and
31
Chapter 2 When parental leave pay is payable to a person
Part 2-2 Determinations about whether parental leave pay is payable to a person
Division 2 Determinations about whether parental leave pay is payable to a person
Section 15
28 Paid Parental Leave Bill 2010 No. , 2010
(b) the secondary claimant was or will be eligible for parental
1
leave pay on each day in the secondary claimant's PPL
2
period; and
3
(c) if the secondary claimant's PPL period starts after the day the
4
child was born--subsection (4) applies to the period that:
5
(i) starts on the day the child was born; and
6
(ii) ends on the day before the start of the secondary
7
claimant's PPL period.
8
Note:
The Secretary is prevented from making a determination under this
9
subsection in certain circumstances: see Division 3.
10
(4) This subsection applies to the period referred to in paragraph (3)(c)
11
if:
12
(a) the primary claimant was or will be eligible for parental leave
13
pay on each day in that period; or
14
(b) the secondary claimant was or will be eligible for parental
15
leave pay on each day in that period; or
16
(c) both of the following are satisfied:
17
(i) the primary claimant was or will be eligible for parental
18
leave pay on each day in the first part of that period;
19
(ii) the secondary claimant was or will be eligible for
20
parental leave pay on each day in the last part of that
21
period.
22
Secondary claimant's PPL period
23
(5) The Secretary must specify in the determination under
24
subsection (3) that the secondary claimant's PPL period:
25
(a) starts on the maximum PPL period start day; and
26
(b)
ends
on:
27
(i) if the Secretary is satisfied that the secondary claimant
28
was or will be eligible on each day in the child's
29
maximum PPL period--the child's maximum PPL
30
period end day; or
31
(ii) if the Secretary is satisfied that the secondary claimant
32
was or will be eligible for a period that is shorter than
33
the child's maximum PPL period--the last day in the
34
child's maximum PPL period that the Secretary is
35
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
Determinations about whether parental leave pay is payable to a person Division 2
Section 16
Paid Parental Leave Bill 2010 No. , 2010 29
satisfied that the secondary claimant was or will be
1
eligible.
2
When parental leave pay is not payable to secondary claimant
3
(6) The Secretary must determine that parental leave pay is not
4
payable to the secondary claimant if the Secretary is not satisfied
5
of the matters in subsection (3).
6
16 Determination on a secondary claim made after the primary
7
claim
8
When a claim is to be determined under this section
9
(1)
If:
10
(a) a primary claimant makes an effective primary claim for
11
parental leave pay for a child; and
12
(b) a secondary claimant makes an effective secondary claim for
13
parental leave pay for the child at a later time;
14
the Secretary must make a determination on the secondary claim
15
under this section.
16
(2) However, the Secretary cannot make a determination on the
17
secondary claim under this section until the Secretary has first
18
made a determination on the primary claim.
19
When parental leave pay is payable to secondary claimant
20
(3) The Secretary must determine that parental leave pay is payable to
21
the secondary claimant for the secondary claimant's PPL period if,
22
when making the determination, the Secretary is satisfied that:
23
(a) a determination under section 13 or 14 that parental leave pay
24
is payable to the primary claimant was or will be in force on
25
the day before the start of the secondary claimant's PPL
26
period; and
27
(b) the secondary claimant was or will be eligible for parental
28
leave pay for the child on each day in the secondary
29
claimant's PPL period.
30
Note:
The Secretary is prevented from making a determination under this
31
subsection in certain circumstances: see Division 3.
32
Chapter 2 When parental leave pay is payable to a person
Part 2-2 Determinations about whether parental leave pay is payable to a person
Division 2 Determinations about whether parental leave pay is payable to a person
Section 17
30 Paid Parental Leave Bill 2010 No. , 2010
Secondary claimant's PPL period
1
(4) The Secretary must specify in the determination under
2
subsection (3) that the secondary claimant's PPL period:
3
(a) starts on the first day after the primary claimant's PPL period
4
ends; and
5
(b)
ends
on:
6
(i) if the Secretary is satisfied that the secondary claimant
7
was or will be eligible on each day that remains in the
8
child's maximum PPL period--the child's maximum
9
PPL period end day; or
10
(ii) otherwise--the last day in the child's maximum PPL
11
period that the Secretary is satisfied the secondary
12
claimant was or will be eligible.
13
When parental leave pay is not payable to secondary claimant
14
(5) The Secretary must determine that parental leave pay is not
15
payable to the secondary claimant if the Secretary is not satisfied
16
of the matters in subsection (3).
17
17 Determination on a tertiary claim
18
When a tertiary claim is to be determined under this section
19
(1) If a tertiary claimant makes an effective tertiary claim for parental
20
leave pay for a child, the Secretary must make a determination on
21
the tertiary claim under this section.
22
When parental leave pay is payable to tertiary claimant
23
(2) The Secretary must determine that parental leave pay is payable to
24
the tertiary claimant for the tertiary claimant's PPL period if, when
25
making the determination, the Secretary is satisfied that:
26
(a) a determination under section 14, 15 or 16 that parental leave
27
pay is payable to the secondary claimant was or will be in
28
force on the day before the start of the tertiary claimant's
29
PPL period; and
30
(b) the tertiary claimant was or will be eligible for parental leave
31
pay on each day in the tertiary claimant's PPL period.
32
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
Determinations about whether parental leave pay is payable to a person Division 2
Section 17
Paid Parental Leave Bill 2010 No. , 2010 31
Note:
The Secretary is prevented from making a determination under this
1
subsection in certain circumstances: see Division 3.
2
Tertiary claimant's PPL period
3
(3) The Secretary must specify in the determination under
4
subsection (2) that the tertiary claimant's PPL period:
5
(a) starts on the first day after the secondary claimant's PPL
6
period ends; and
7
(b)
ends
on:
8
(i) if the Secretary is satisfied that the tertiary claimant was
9
or will be eligible on each day that remains in the
10
child's maximum PPL period--the child's maximum
11
PPL period end day; or
12
(ii) otherwise--the last day in the child's maximum PPL
13
period that the Secretary is satisfied the tertiary claimant
14
was or will be eligible.
15
When parental leave pay is not payable to tertiary claimant
16
(4) The Secretary must determine that parental leave pay is not
17
payable to the tertiary claimant if the Secretary is not satisfied of
18
the matters in subsection (2).
19
20
Chapter 2 When parental leave pay is payable to a person
Part 2-2 Determinations about whether parental leave pay is payable to a person
Division 3 When the Secretary cannot make a determination that parental leave pay is
payable
Section 18
32 Paid Parental Leave Bill 2010 No. , 2010
Division 3--When the Secretary cannot make a
1
determination that parental leave pay is payable
2
18 The child's birth has not been verified
3
(1) The Secretary must not make a payability determination that
4
parental leave pay is payable to a person for a child unless the
5
primary claimant has verified the child's birth.
6
Verifying a child's birth
7
(2)
A
person
verifies a child's birth if:
8
(a) the person gives the Secretary a completed birth verification
9
form for the child; and
10
(b) if subsection (3) applies to the person, the person satisfies the
11
requirement of that subsection.
12
(3)
If:
13
(a) the person is the parent (other than an adoptive parent) of the
14
child; and
15
(b) the child is not stillborn; and
16
(c) the person is, under a law of a State or a Territory,
17
responsible (whether alone or jointly) for registering the birth
18
of the child under the law;
19
then the person must give the Secretary information showing that:
20
(d) the child's birth has been registered under the law; or
21
(e) the person has applied to have the birth of the child registered
22
under the law.
23
(4) The Secretary may approve a form (a birth verification form) for
24
the purposes of verifying the birth of a child.
25
19 The child was born before 1 January 2011
26
The Secretary must not make a payability determination that
27
parental leave pay is payable to a person for a child if the child was
28
born before 1 January 2011.
29
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
When the Secretary cannot make a determination that parental leave pay is payable
Division 3
Section 20
Paid Parental Leave Bill 2010 No. , 2010 33
20 Multiple births
1
The Secretary must not make a payability determination that
2
parental leave pay is payable to a person for a child if:
3
(a) the child and another child are born during the same multiple
4
birth; and
5
(b) parental leave pay is or was payable to the person or another
6
person for the other child.
7
21 The person etc. has already been paid parental leave pay
8
(1) The Secretary must not make a payability determination that
9
parental leave pay is payable to a person for a child if:
10
(a) the person has been paid parental leave pay for the child
11
under a different claim; or
12
(b) if the person is the primary claimant:
13
(i) the person's partner has been paid parental leave pay for
14
the child; or
15
(ii) a former partner of the person was paid parental leave
16
pay for the child when he or she was the person's
17
partner; or
18
(c) if the person is the secondary claimant:
19
(i) the person's partner has been paid parental leave pay for
20
the child (other than as the primary claimant to which
21
the person's secondary claim relates); or
22
(ii) a former partner of the person was paid parental leave
23
pay for the child when he or she was the person's
24
partner (other than as the primary claimant to which the
25
person's secondary claim relates).
26
(2) Subsection (1) does not apply to a claim that is made in exceptional
27
circumstances.
28
29
Chapter 2 When parental leave pay is payable to a person
Part 2-2 Determinations about whether parental leave pay is payable to a person
Division 4 General provisions applying to determinations about whether parental leave
pay is payable
Section 22
34 Paid Parental Leave Bill 2010 No. , 2010
Division 4--General provisions applying to determinations
1
about whether parental leave pay is payable
2
22 Assumptions when making the determination
3
In deciding whether to make a payability determination, the
4
Secretary may act on the assumption that the state of affairs known
5
to the Secretary when making the determination will remain
6
unchanged.
7
23 When the determination is in force
8
A payability determination comes into force on the day it is made
9
and continues in force unless it is:
10
(a) revoked under section 25 (which deals with revoking a
11
payability determination on the claimant's request); or
12
(b) set aside under Chapter 5 (which deals with review of
13
decisions).
14
24 Notice of the determination
15
If the Secretary makes a payability determination, the Secretary
16
must give a notice of the determination to the claimant, stating:
17
(a) whether parental leave pay is payable; and
18
(b) if parental leave pay is payable--the claimant's PPL period;
19
and
20
(c) that the claimant may apply for review of the determination
21
in the manner set out in Chapter 5.
22
25 Revoking the determination on request
23
(1)
If:
24
(a) a payability determination is made that parental leave pay is
25
payable to a person; and
26
(b) the person requests the Secretary to revoke the determination;
27
and
28
(c) the request is made:
29
(i) before the start of the person's PPL period; and
30
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
General provisions applying to determinations about whether parental leave pay is
payable Division 4
Section 25
Paid Parental Leave Bill 2010 No. , 2010 35
(ii) in a manner approved by the Secretary;
1
then the Secretary must revoke the determination.
2
(2) The revocation is taken to have come into force on the day the
3
person requested the Secretary to revoke the determination.
4
5
Chapter 2 When parental leave pay is payable to a person
Part 2-2 Determinations about whether parental leave pay is payable to a person
Division 5 Initial eligibility determinations
Section 26
36 Paid Parental Leave Bill 2010 No. , 2010
Division 5--Initial eligibility determinations
1
26 Initial eligibility determinations
2
Primary claimants
3
(1) If a person makes an effective primary claim, the Secretary may
4
make a determination (the initial eligibility determination) that the
5
person is initially eligible for parental leave pay for the child if,
6
when making the determination, the Secretary is satisfied that the
7
person satisfies:
8
(a) the work test; and
9
(b) the income test; and
10
(c) the Australian residency test.
11
Secondary claimants
12
(2) If a person makes an effective secondary claim, the Secretary may
13
make a determination (the initial eligibility determination) that the
14
person is initially eligible for parental leave pay for the child if,
15
when making the determination, the Secretary is satisfied that the
16
person:
17
(a)
satisfies:
18
(i) the work test; and
19
(ii) the income test; and
20
(iii) the Australian residency test; or
21
(b) will satisfy those tests on the day the person becomes the
22
child's primary carer.
23
27 Assumptions when making the initial eligibility determination
24
In deciding whether to make an initial eligibility determination, the
25
Secretary may act on the assumption that the state of affairs known
26
to the Secretary when making the determination will remain
27
unchanged.
28
When parental leave pay is payable to a person Chapter 2
Determinations about whether parental leave pay is payable to a person Part 2-2
Initial eligibility determinations Division 5
Section 28
Paid Parental Leave Bill 2010 No. , 2010 37
28 When the initial eligibility determination comes into force
1
An initial eligibility determination comes into force on the day it is
2
made.
3
29 Notice of the initial eligibility determination
4
If the Secretary makes an initial eligibility determination, the
5
Secretary must give a notice of the determination to the claimant.
6
7
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 1 Guide to this Part
Section 30
38 Paid Parental Leave Bill 2010 No. , 2010
Part 2-3--Eligibility for parental leave pay
1
Division 1--Guide to this Part
2
30 Guide to this Part
3
This Part sets out when a person is eligible for parental leave pay.
4
The Secretary cannot make a payability determination that parental
5
leave pay is payable if the person is not eligible for it.
6
Division 2 sets out when a person is eligible for parental leave pay.
7
Subsection 31(2) deals with the main case and requires that for a
8
person to be eligible for parental leave pay for a child, the person
9
must (broadly):
10
(a) satisfy the work test, the income test and the Australian
11
residency test; and
12
(b) be the child's primary carer; and
13
(c) not have returned to work; and
14
(d) not be entitled to baby bonus.
15
There are other eligibility criteria that apply for more unusual
16
cases--see subsection 31(3) (which deals with when a child is
17
stillborn or dies) and subsection 31(4) (which allows the PPL rules
18
to prescribe eligibility criteria).
19
Division 3 has the work test. To satisfy the work test, a person
20
must have performed enough paid work or taken enough paid leave
21
in a particular period before the day the child was born (for a
22
primary claimant) or the day the person became the child's primary
23
carer (for a secondary claimant).
24
Division 4 has the income test. To satisfy the income test, the
25
person's income for a particular income year must not be more
26
than the PPL income limit (which is $150,000 until 30 June 2012
27
and then indexed).
28
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
Guide to this Part Division 1
Section 30
Paid Parental Leave Bill 2010 No. , 2010 39
Division 5 has the Australian residency test. To satisfy this test, the
1
person must be an Australian resident or be in a special class of
2
visa holder.
3
Division 6 sets out when a person is the primary carer of a child.
4
For the main case, a person will not be eligible for parental leave
5
pay if the person is not the child's primary carer.
6
Division 7 sets out when a person returns to work after the birth of
7
a child. For the main case, a person will not be eligible for parental
8
leave pay if the person performs more than one hour of work other
9
than for a permissible purpose. There are 2 permissible purposes.
10
One is where the person performs the work for another entity on a
11
keeping in touch day with that entity. The other is where the person
12
performs the work for a business that the person carries on and the
13
work consists of overseeing the business or is an occasional
14
administrative task.
15
16
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 2 When a person is eligible for parental leave pay
Section 31
40 Paid Parental Leave Bill 2010 No. , 2010
Division 2--When a person is eligible for parental leave
1
pay
2
31 When a person is eligible for parental leave pay
3
(1) This section sets out when a person is eligible for parental leave
4
pay for a child on a day.
5
(2) First, a person is eligible for parental leave pay for a child on a day
6
if, on that day:
7
(a) the person satisfies the work test (see Division 3); and
8
(b) the person satisfies the income test (see Division 4); and
9
(c) the person satisfies the Australian residency test (see
10
Division 5); and
11
(d) the person is the primary carer of the child (see Division 6);
12
and
13
(e) the person has not returned to work (see Division 7); and
14
(f) both of the following are satisfied:
15
(i) the person and the person's partner are not entitled to
16
baby bonus for the child;
17
(ii) a former partner of the person was not entitled to baby
18
bonus for the child when he or she was the person's
19
partner.
20
(3) Second, a person is eligible for parental leave pay for a child on a
21
day if:
22
(a) the child is stillborn or has died before that day; and
23
(b) on that day, the person would be eligible under subsection (2)
24
for parental leave pay for the child, if paragraphs (2)(d) and
25
(e) were disregarded; and
26
(c) the person would have been the child's primary carer on that
27
day had the child not been stillborn or died.
28
(4) Third, a person is eligible for parental leave pay for a child on a
29
day if, on that day:
30
(a) if the person is the primary claimant:
31
(i) the person satisfies the work test (see Division 3); and
32
(ii) the person satisfies the income test (see Division 4); and
33
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
When a person is eligible for parental leave pay Division 2
Section 31
Paid Parental Leave Bill 2010 No. , 2010 41
(iii) the person satisfies the Australian residency test (see
1
Division 5); and
2
(iv) the person satisfies the conditions prescribed by the PPL
3
rules; and
4
(b) if the person is a secondary claimant or tertiary claimant--the
5
person satisfies the conditions prescribed by the PPL rules.
6
(5) Despite subsections (2), (3) and (4), a person is not eligible for
7
parental leave pay for a child on a day if, on that day, the person is
8
deceased.
9
10
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 3 The work test
Section 32
42 Paid Parental Leave Bill 2010 No. , 2010
Division 3--The work test
1
32 When a person satisfies the work test
2
To work out whether a person satisfies the work test on a day, use
3
the following method statement:
4
Method statement
5
Step 1. Work out the person's work test period under section 33.
6
Step 2. Work out the days in the work test period on which the
7
person has and has not performed qualifying work.
8
Note:
Qualifying work is defined in section 34.
9
Step 3. Work out whether any days on which the person has not
10
performed qualifying work during the work test period
11
fall within a permissible break.
12
Note:
Permissible break is defined in section 36.
13
Step 4. Work out whether there is a period (a qualifying period)
14
of 295 consecutive days in the work test period that are
15
days:
16
(a)
on which the person has performed qualifying
17
work; or
18
(b)
that fall within a permissible break.
19
Step 5. If the person has performed at least 330 hours of
20
qualifying work in a qualifying period, the person
21
satisfies the work test.
22
33 The work test period
23
Primary claimant's work test period
24
(1)
The
work test period for a primary claimant is the 392 days
25
immediately before:
26
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
The work test Division 3
Section 34
Paid Parental Leave Bill 2010 No. , 2010 43
(a) if the child is born on or before the expected date of birth of
1
the child--the day the child is born; or
2
(b) if the child is born after the expected date of birth of the
3
child--either:
4
(i) the day the child is born; or
5
(ii) if the person does not satisfy the work test in the work
6
test period that applies under subparagraph (i), the
7
expected date of birth of the child.
8
(2) However, for the purposes of making an initial eligibility
9
determination on a primary claim that is made before the child is
10
born, the work test period for the primary claimant is the 392 days
11
immediately before the expected date of birth of the child.
12
Secondary claimant's work test period
13
(3)
The
work test period for a secondary claimant is the 392 days
14
immediately before the day the person becomes the child's primary
15
carer.
16
34 When a person performs qualifying work
17
(1) A person performs qualifying work if:
18
(a) the person performs at least one hour of paid work on a day;
19
or
20
(b) the person takes a period of paid leave of at least one hour on
21
a day.
22
(2) For the purposes of paragraph (1)(b), the PPL rules may prescribe
23
what is, or is not, taken to be paid leave.
24
35 When a person performs paid work
25
People other than self-employed
26
(1) A person performs paid work on a day if, on that day, the person
27
performs work (whether as an employee, a contractor or otherwise
28
and whether or not in Australia) for another entity for remuneration
29
or other financial benefit.
30
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 3 The work test
Section 36
44 Paid Parental Leave Bill 2010 No. , 2010
(2) However, a person is taken not to perform paid work for the
1
purposes of subsection (1) if the other entity is controlled by the
2
person (whether alone or with others).
3
Self-employed
4
(3) A person performs paid work on a day if, on that day, the person
5
performs work for the purposes of a business that is carried on for
6
profit (whether in or outside of Australia) by:
7
(a) the person (whether alone or with others); or
8
(b) an entity that is controlled by the person (whether alone or
9
with others).
10
When a person controls an entity
11
(4)
A
person
controls an entity if the person has the capacity to
12
determine the outcome of decisions about the entity's financial and
13
operating policies.
14
PPL rules about what paid work is
15
(5) The PPL rules may prescribe what is, or is not, taken to be paid
16
work.
17
36 When there is a permissible break
18
(1)
A
permissible break is any of the periods in subsections (2) and
19
(3).
20
Permissible break between 2 qualifying work days
21
(2) If, between a day on which the person performed qualifying work
22
(a qualifying work day) in the work test period and the next
23
qualifying work day, there was at least 1 day but not more than 56
24
consecutive days on which the person did not perform qualifying
25
work--the day or period of consecutive days between those 2
26
qualifying work days is a permissible break.
27
Permissible break at the start of the work test period
28
(3)
If:
29
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
The work test Division 3
Section 36
Paid Parental Leave Bill 2010 No. , 2010 45
(a) a person performed qualifying work on a day (the earlier
1
qualifying work day) before the first day in the work test
2
period; and
3
(b) the person next performed qualifying work on a day (the
4
later qualifying work day) after the first day in the work test
5
period; and
6
(c) the later qualifying work day was no more than 56
7
consecutive days after the earlier qualifying work day;
8
then the day or period of consecutive days on which the person did
9
not perform qualifying work between the first day in the work test
10
period and the later qualifying work day (including the first day of
11
the work test period) is a permissible break.
12
13
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 4 The income test
Section 37
46 Paid Parental Leave Bill 2010 No. , 2010
Division 4--The income test
1
Subdivision A--The income test
2
37 When a person satisfies the income test
3
A person satisfies the income test on a day if the person's adjusted
4
taxable income for the reference income year is not more than the
5
relevant PPL income limit.
6
38 A person's adjusted taxable income
7
A
person's
adjusted taxable income for an income year is worked
8
out in accordance with Schedule 3 to the Family Assistance Act
9
(disregarding subclause 2(2) and clauses 3 and 3A of that
10
Schedule).
11
Note:
Schedule 3 to the Family Assistance Act sets out how to work out a
12
person's adjusted taxable income for the purposes of that Act.
13
39 The reference income year
14
The
reference income year for a person is:
15
(a) if the person is a primary claimant--the income year that
16
ended before the earlier of:
17
(i) the day the person made the claim; and
18
(ii) the day the child was born; and
19
(b) if the person is a secondary claimant--the income year that
20
ended before the earlier of:
21
(i) the day the person made the claim; and
22
(ii) the day the person became the child's primary carer.
23
40 The relevant PPL income limit
24
The
relevant PPL income limit for a person is:
25
(a) if the person is a primary claimant--the PPL income limit
26
that applies on the earlier of the following days:
27
(i) the day the person made the claim;
28
(ii) the day the child was born; or
29
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
The income test Division 4
Section 41
Paid Parental Leave Bill 2010 No. , 2010 47
(b) if the person is a secondary claimant--the PPL income limit
1
that applies on the earlier of the following days:
2
(i) the day the person made the claim;
3
(ii) the day the person became the child's primary carer.
4
41 The PPL income limit
5
The
PPL income limit that applies on a day is:
6
(a) if the day is on or after 1 October 2010 but before 1 July
7
2012--$150,000; and
8
(b) if the day is on or after an indexation day (the relevant
9
indexation day) but before the next indexation day--the
10
indexed amount on the relevant indexation day worked out
11
under Subdivision B.
12
Subdivision B--Indexation of the PPL income limit
13
42 Indexation of the PPL income limit
14
(1) The amount of the PPL income limit in section 41 is to be indexed
15
under this Subdivision on 1 July each year (the indexation day)
16
starting on 1 July 2012.
17
Working out the indexed amount for the PPL income limit
18
(2) This is how to work out the indexed amount for the PPL income
19
limit on the indexation day:
20
Method statement
21
Step 1. Work out the amount (the previous amount) for the PPL
22
income limit that applied on the day immediately before
23
the indexation day.
24
Step 2. Use section 43 to work out the indexation factor on the
25
indexation day.
26
Step 3. Multiply the previous amount by the indexation factor:
27
the result is the provisional indexed amount.
28
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 4 The income test
Section 43
48 Paid Parental Leave Bill 2010 No. , 2010
Step 4. Use section 44 to round off the provisional indexed
1
amount: the result is the indexed amount.
2
43 The indexation factor
3
(1)
The
indexation factor is worked out using the following formula
4
and applying subsections (2) and (3):
5
Index number for the reference December quarter
Index number for the base December quarter
6
where:
7
base December quarter means the December quarter that has the
8
highest index number of the December quarters before the
9
reference December quarter (but not earlier than the December
10
quarter 2007).
11
index number, for a quarter, means the All Groups Consumer
12
Price Index number that is the weighted average of the 8 capital
13
cities and is published by the Australian Statistician in relation to
14
that quarter.
15
reference December quarter means the last December quarter
16
before the indexation day.
17
(2) The indexation factor is to be worked out to 3 decimal places, but
18
increased by 0.001 if the fourth decimal place is more than 4.
19
(3) If an indexation factor worked out under subsections (1) and (2)
20
would be less than 1, that indexation factor is to be increased to 1.
21
Changes to CPI reference base and publication of substituted
22
index numbers
23
(4) Amounts are to be worked out under this section:
24
(a) using only the index numbers published in terms of the most
25
recently published reference base for the Consumer Price
26
Index; and
27
(b) disregarding index numbers published in substitution for
28
previously published index numbers (except where the
29
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
The income test Division 4
Section 44
Paid Parental Leave Bill 2010 No. , 2010 49
substituted numbers are published to take account of changes
1
in the reference base).
2
44 Rounding off indexed amounts
3
(1) If a provisional indexed amount is a multiple of $1.00, the
4
provisional indexed amount becomes the indexed amount.
5
(2) If a provisional indexed amount is not a multiple of $1.00, the
6
indexed amount is the provisional indexed amount rounded up or
7
down to the nearest multiple of $1.00.
8
(3) If a provisional indexed amount is not a multiple of $1.00 but is a
9
multiple of $0.50, the indexed amount is the provisional indexed
10
amount rounded up to the nearest multiple of $1.00.
11
12
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 5 The Australian residency test
Section 45
50 Paid Parental Leave Bill 2010 No. , 2010
Division 5--The Australian residency test
1
45 When a person satisfies the Australian residency test
2
(1) A person satisfies the Australian residency test on a day if, on that
3
day, the person:
4
(a) is an Australian resident; or
5
(b) is a special category visa holder residing in Australia; or
6
(c) satisfies subsection (2).
7
When a person satisfies this subsection
8
(2) A person satisfies this subsection if the person is the holder of a
9
visa determined by the Minister for the purposes of subparagraph
10
729(2)(f)(v) of the Social Security Act, and either of the following
11
applies:
12
(a) the person is in Australia;
13
(b)
the
person:
14
(i) is temporarily absent from Australia for not more than
15
13 weeks; and
16
(ii) the absence is an allowable absence in relation to special
17
benefit within the meaning of Part 4.2 of that Act.
18
46 Effect of absence from Australia on Australian residency test
19
(1) Despite section 45, a person does not satisfy the Australian
20
residency test on a day (the relevant day) if:
21
(a) before the relevant day, the person left Australia; and
22
(b) on the relevant day, the person has been absent from
23
Australia for more than 3 years since the day the person left
24
Australia.
25
Effect of a person's return to Australia within 3 years
26
(2)
If:
27
(a) a person who has been absent from Australia for more than
28
13 weeks, but not more than 3 years, returns to Australia; and
29
(b) the person leaves Australia again less than 13 weeks later;
30
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
The Australian residency test Division 5
Section 46
Paid Parental Leave Bill 2010 No. , 2010 51
then the person is taken not to have returned to Australia for the
1
purposes of subsection (1).
2
Effect of a person's return to Australia after 3 years
3
(3)
If:
4
(a) a person satisfies the Australian residency test while the
5
person is absent from Australia; and
6
(b) the person then ceases to satisfy the Australian residency test
7
because of the application of subsection (1) or a previous
8
application of this subsection; and
9
(c) the person returns to Australia; and
10
(d) the person leaves Australia again less than 13 weeks later;
11
then, despite section 45, the person does not satisfy the Australian
12
residency test at any time during:
13
(e) the person's return to Australia referred to in paragraph (c);
14
or
15
(f) the person's absence from Australia referred to in
16
paragraph (d).
17
18
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 6 Primary carer
Section 47
52 Paid Parental Leave Bill 2010 No. , 2010
Division 6--Primary carer
1
47 When a person is the primary carer of a child
2
(1) A person is the primary carer of a child on a day in the person's
3
reference period if:
4
(a) the child is in the person's care in that period; and
5
(b) the person meets the child's physical needs more than anyone
6
else in that period.
7
(2)
A
person's
reference period is the period that is determined by the
8
Secretary for the purposes of making a payability determination on
9
the person's claim.
10
(3) Only one person can be a child's primary carer on a particular day.
11
(4) Despite subsection (1), a person is not the primary carer of a child
12
on a day if, before that day, the child has died.
13
14
When parental leave pay is payable to a person Chapter 2
Eligibility for parental leave pay Part 2-3
Return to work Division 7
Section 48
Paid Parental Leave Bill 2010 No. , 2010 53
Division 7--Return to work
1
48 When a person returns to work
2
A
person
returns to work on a day that is on or after the birth of a
3
child if, on that day, the person performs one hour or more of paid
4
work other than for a permissible purpose.
5
49 When paid work is for a permissible purpose
6
Permissible purpose for people other than self-employed
7
(1) If a person performs paid work on a day for another entity (see
8
subsection 35(1)), the person does so for a permissible purpose if:
9
(a) the person performs the work for the entity as an employee,
10
defence force member or law enforcement officer; and
11
(b) the day is a keeping in touch day with the entity and would
12
otherwise be a day of leave in a period of leave granted by
13
that entity; and
14
(c) the person has not already performed paid work on 10
15
keeping in touch days (whether with the entity or another
16
entity).
17
Permissible purpose for self-employed
18
(2) If a person performs paid work on a day for a business in the
19
situation referred to in subsection 35(3), the person does so for a
20
permissible purpose if the work performed by the person consists
21
of overseeing the business or is an occasional administrative task
22
for the purposes of the business.
23
50 Performing paid work on a keeping in touch day
24
A day on which a person performs paid work for an entity on a day
25
that would otherwise be a day of leave in a period of leave granted
26
by that entity is a keeping in touch day if:
27
(a) the purpose of performing the work is to enable the person to
28
keep in touch with his or her employment or engagement in
29
order to facilitate a return to that employment or engagement
30
after the end of the period of leave; and
31
Chapter 2 When parental leave pay is payable to a person
Part 2-3 Eligibility for parental leave pay
Division 7 Return to work
Section 50
54 Paid Parental Leave Bill 2010 No. , 2010
(b) both the person and the entity consent to the person
1
performing work for the entity on that day; and
2
(c) the day is not within 14 days after the day the child was born.
3
4
When parental leave pay is payable to a person Chapter 2
Claims for parental leave pay Part 2-4
Guide to this Part Division 1
Section 51
Paid Parental Leave Bill 2010 No. , 2010 55
Part 2-4--Claims for parental leave pay
1
Division 1--Guide to this Part
2
51 Guide to this Part
3
This Part is about claims for parental leave pay. A person cannot
4
be paid parental leave pay unless the person has first made a claim
5
for it.
6
Division 2 sets out the rules about claims. There are 3 types of
7
claims: a primary claim, a secondary claim and (in rare cases) a
8
tertiary claim. These claims relate to each other, although the
9
primary claim is the main one--a secondary or tertiary claim
10
cannot be made without it. However, it will often be the only claim
11
that is made. Section 54 sets out who can make a primary claim, a
12
secondary claim or a tertiary claim.
13
The Secretary cannot make a payability determination on a claim
14
unless it is an effective claim. To be effective, the claim must be
15
made by the right person and satisfy the requirements in the
16
provisions listed in section 55. One of those requirements is that
17
the claim must be in the form, and contain the information,
18
required by the Secretary (see section 56). Another requirement is
19
that the claim must be made in the period set out in section 60.
20
21
Chapter 2 When parental leave pay is payable to a person
Part 2-4 Claims for parental leave pay
Division 2 Claims for parental leave pay
Section 52
56 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Claims for parental leave pay
1
52 Who can claim
2
Only a natural person can make a claim.
3
53 Types of claims
4
(1) There are 3 types of claims:
5
(a) a primary claim; and
6
(b) a secondary claim; and
7
(c) a tertiary claim.
8
(2)
A
primary claim is a claim in the form approved by the Secretary
9
for primary claims.
10
(3)
A
secondary claim is a claim in the form approved by the
11
Secretary for secondary claims.
12
(4)
A
tertiary claim is a claim in the form approved by the Secretary
13
for tertiary claims.
14
(5) For the purposes of subsections (2), (3) and (4), the Secretary may
15
approve:
16
(a) different forms for different types of claims; and
17
(b) different forms for the same type of claim.
18
54 Who can make a primary claim, secondary claim or tertiary
19
claim
20
Primary claim
21
(1) Only the following people can make a primary claim for a child:
22
(a) the child's birth mother;
23
(b) an adoptive parent of the child;
24
(c) a person who satisfies the circumstances prescribed by the
25
PPL rules as being exceptional circumstances in which a
26
primary claim can be made.
27
When parental leave pay is payable to a person Chapter 2
Claims for parental leave pay Part 2-4
Claims for parental leave pay Division 2
Section 55
Paid Parental Leave Bill 2010 No. , 2010 57
Secondary claim
1
(2) Only the following people can make a secondary claim for a child:
2
(a) the partner of a primary claimant;
3
(b) a person who:
4
(i) is a parent of the child; and
5
(ii) is not the primary claimant;
6
(c) a partner of a person covered by paragraph (b);
7
(d) a person who satisfies the circumstances prescribed by the
8
PPL rules as being exceptional circumstances in which a
9
secondary claim can be made.
10
Tertiary claim
11
(3) Only a person who satisfies the circumstances prescribed by the
12
PPL rules as being exceptional circumstances in which a tertiary
13
claim can be made can make a tertiary claim for a child.
14
55 When a claim is effective
15
(1) A claim is not effective unless the requirements of the following
16
provisions that apply to the claim are satisfied:
17
(a) section 56 (which deals with the form etc. of the claim);
18
(b) section 57 (which deals with the nominated start date);
19
(c) section 58 (which deals with expected date of birth etc.);
20
(d) section 59 (which deals with tax file number statements);
21
(e) section 60 (which deals with when to make the claim).
22
(2) A claim is also not effective if it is made by a person who cannot
23
make that type of claim under section 54.
24
(3) A claim that is not effective is taken not to have been made.
25
56 Requirements of the claim
26
(1) The claim must:
27
(a) be made in the form approved, and the manner required, by
28
the Secretary for that type of claim; and
29
Chapter 2 When parental leave pay is payable to a person
Part 2-4 Claims for parental leave pay
Division 2 Claims for parental leave pay
Section 57
58 Paid Parental Leave Bill 2010 No. , 2010
(b) contain any information (including information about the
1
claimant's employer or the claimant's employment with that
2
employer) required by the Secretary; and
3
(c) be accompanied by any documents required by the Secretary.
4
(2) For the purposes of paragraphs (1)(b) and (c), the Secretary may
5
require that different information be contained in, and different
6
documents accompany:
7
(a) different types of claims; or
8
(b) different claims of the same type of claim.
9
57 Nominated start date
10
(1) If the claim is a primary claim, the claim must state a specific date
11
(the nominated start date) on which the primary claimant wants
12
parental leave pay to start being paid.
13
Note 1:
For the purposes of subsection (1), "6 months after the birth of the
14
child" would not be a specific date. However, the "date of birth of the
15
child" would be.
16
Note 2:
Even though a primary claimant nominates a specific date, parental
17
leave pay may not be payable from that date because, for example, the
18
primary claimant has not verified the child's birth before that date: see
19
subsection 11(4).
20
(2) Before a payability determination is made on the primary claim,
21
the primary claimant may change his or her nominated start date by
22
notifying the Secretary of the new nominated start date.
23
(3) If a payability determination is made that parental leave pay is
24
payable to the primary claimant, the primary claimant may only
25
change his or her nominated start date (the old date) by:
26
(a) notifying the Secretary, before the old date, of the new
27
nominated start date; and
28
(b) nominating a new nominated start date that is on or after the
29
day the person notifies the Secretary of the change.
30
When parental leave pay is payable to a person Chapter 2
Claims for parental leave pay Part 2-4
Claims for parental leave pay Division 2
Section 58
Paid Parental Leave Bill 2010 No. , 2010 59
58 Expected date of birth and expected day of primary care
1
Primary claim
2
(1) If the claim is a primary claim and it is made before the child's
3
birth, the claim must specify the child's expected date of birth.
4
Secondary claim
5
(2) If the claim is a secondary claim and it is made before the day the
6
secondary claimant expects to become the child's primary carer,
7
the claim must specify the day the claimant expects to become the
8
child's primary carer.
9
59 Tax file number statement
10
(1) The claim must contain the person's tax file number statement,
11
which is a statement of the kind set out in subsection (2), (3) or (4).
12
Statement of tax file number
13
(2) The first kind is a statement of the person's tax file number.
14
Statement that person does not know his or her tax file number
15
(3) The second kind is a statement that the person:
16
(a) has a tax file number but does not know what it is; and
17
(b) has asked the Commissioner of Taxation to inform the person
18
of his or her tax file number; and
19
(c) authorises the Commissioner of Taxation to tell the
20
Secretary:
21
(i) whether the person has a tax file number; and
22
(ii) if the person has a tax file number--that number.
23
Statement that an application for a tax file number is pending
24
(4) The third kind is a statement that the person:
25
(a) has an application for a tax file number pending; and
26
(b) authorises the Commissioner of Taxation to tell the
27
Secretary:
28
Chapter 2 When parental leave pay is payable to a person
Part 2-4 Claims for parental leave pay
Division 2 Claims for parental leave pay
Section 60
60 Paid Parental Leave Bill 2010 No. , 2010
(i) if a tax file number is issued to the person--that
1
number; or
2
(ii) if the application is refused--that the application has
3
been refused; or
4
(iii) if the application is withdrawn--that the application has
5
been withdrawn.
6
60 When to claim
7
A claim must be made in the period that:
8
(a) starts on the day that is 97 days before the expected date of
9
birth of the child; and
10
(b) ends on the day before the child's first birthday.
11
61 Claim may be withdrawn or varied
12
(1) After making an effective claim, the person may withdraw or vary
13
the claim before a payability determination is made on it.
14
(2) The person may only do so in a manner approved by the Secretary.
15
(3) If a claim is withdrawn, it is taken never to have been made.
16
17
Payment of parental leave pay Chapter 3
Instalments of parental leave pay Part 3-1
Guide to this Part Division 1
Section 62
Paid Parental Leave Bill 2010 No. , 2010 61
Chapter 3--Payment of parental leave pay
1
Part 3-1--Instalments of parental leave pay
2
Division 1--Guide to this Part
3
62 Guide to this Part
4
This Part is about instalments of parental leave pay.
5
Parental leave pay is payable in instalments for regular periods
6
called instalment periods. Instalments are payable to a person if
7
those instalment periods overlap with the person's PPL period.
8
Instalments are payable by either a person's employer (see
9
Part 3-2) or the Secretary (see Part 3-3).
10
This Part also contains rules for working out the amount of an
11
instalment and deals with the deductions that may be made from an
12
instalment.
13
14
Chapter 3 Payment of parental leave pay
Part 3-1 Instalments of parental leave pay
Division 2 Instalments of parental leave pay
Section 63
62 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Instalments of parental leave pay
1
63 Instalments of parental leave pay
2
(1) Parental leave pay must be paid to a person in instalments.
3
Who pays an instalment
4
(2) An instalment is payable to a person, in accordance with
5
sections 72, 84, 85, 86 and 87, by either:
6
(a) the person's employer; or
7
(b)
the
Secretary.
8
When an instalment is payable
9
(3) An instalment is payable to a person if one or more days (the PPL
10
days) of an instalment period for the person fall within the person's
11
PPL period.
12
(4) An instalment becomes payable on the payday for the instalment.
13
(5) More than one instalment may be paid to a person on a particular
14
day.
15
64 A person's instalment period and the payday for an instalment
16
(1)
A
person's
instalment period, and the payday for an instalment
17
that relates to an instalment period, are worked out according to the
18
following rules.
19
Note:
Sections 93 and 94 affect when an instalment period for a person starts
20
and ends in certain circumstances.
21
Instalment to be paid by employer--regular pay period
22
(2) If the instalment is to be paid by the person's employer and there is
23
a regular period for which the person would usually be paid in
24
relation to the person's performance of work:
25
(a)
the
person's
instalment period is each such regular period;
26
and
27
(b)
the
payday for the instalment is the day on which the person
28
would usually be paid in relation to the person's performance
29
Payment of parental leave pay Chapter 3
Instalments of parental leave pay Part 3-1
Instalments of parental leave pay Division 2
Section 65
Paid Parental Leave Bill 2010 No. , 2010 63
of work for the instalment period to which the instalment
1
relates.
2
Instalment to be paid by employer--no regular pay period
3
(3) If the instalment is to be paid by the person's employer and there is
4
not a regular period for which the person would usually be paid in
5
relation to the person's performance of work:
6
(a)
the
person's
instalment period is each calendar month; and
7
(b)
the
payday for the instalment is the first day after the end of
8
the instalment period to which the instalment relates.
9
Instalment to be paid by Secretary
10
(4) If the instalment is to be paid by the Secretary:
11
(a)
the
person's
instalment period is the period of 14 days
12
starting on a day the Secretary considers appropriate for the
13
person (or a class of person in which the person is included)
14
and each successive 14 day period; and
15
(b)
the
payday for the instalment is a day that the Secretary
16
considers appropriate that occurs after the instalment period
17
to which the instalment relates.
18
65 The amount of an instalment
19
(1) The amount of an instalment is the total of the daily national
20
minimum wage amounts for each week day, during the instalment
21
period to which the instalment relates, that is also a PPL day.
22
(2)
The
daily national minimum wage amount for a day is 7.6 times
23
the amount of the national minimum wage (when expressed as a
24
monetary amount per hour) set by a national minimum wage order
25
that is in operation on that day (whether or not the order has also
26
taken effect on that day).
27
Note:
For when a national minimum wage order comes into operation, see
28
section 287 of the Fair Work Act.
29
(3) For the purposes of subsection (2):
30
(a) the national minimum wage is taken to be the wage set by the
31
national minimum wage order for employees in relation to
32
Chapter 3 Payment of parental leave pay
Part 3-1 Instalments of parental leave pay
Division 2 Instalments of parental leave pay
Section 66
64 Paid Parental Leave Bill 2010 No. , 2010
whom no exceptional circumstances exist (see subsection
1
287(2) of the Fair Work Act); and
2
(b)
if:
3
(i) Fair Work Australia makes a determination under
4
section 296 of the Fair Work Act varying a national
5
minimum wage order; and
6
(ii) the day the determination comes into operation under
7
section 297 of that Act is earlier than the day the
8
determination is made;
9
the determination is taken to come into operation on the day
10
the determination is made.
11
66 Protection of instalment
12
(1) An instalment is absolutely inalienable, whether by way of, or in
13
consequence of, sale, assignment, charge, execution, bankruptcy or
14
otherwise.
15
Note:
Section 97 (which deals with the effect of a garnishee etc. order) also
16
provides a protection for an account into which an instalment has been
17
paid.
18
(2) Subsection (1) has effect subject to sections 67, 68 and 69 (which
19
deal with deductions).
20
67 Deductions authorised by person
21
(1) An employer or the Secretary may deduct an amount from an
22
instalment that is payable to a person if the deduction is:
23
(a) authorised by the person; and
24
(b) principally for the person's benefit.
25
Note:
A deduction by an employer in accordance with a salary sacrifice or
26
other arrangement, under which a person chooses to:
27
(a) forgo an amount payable to the person in relation to an
28
instalment; but
29
(b) receive some other form of benefit or remuneration;
30
will be permitted if it is made in accordance with this section.
31
(2) The Secretary may deduct an amount from an instalment that is
32
payable to a secondary claimant for a child if:
33
Payment of parental leave pay Chapter 3
Instalments of parental leave pay Part 3-1
Instalments of parental leave pay Division 2
Section 68
Paid Parental Leave Bill 2010 No. , 2010 65
(a) a primary claimant owes a debt to the Commonwealth in
1
relation to amounts paid to, or in relation to, the primary
2
claimant by way of instalments for the same child; and
3
(b) the deduction is authorised by the secondary claimant for the
4
purposes of the recovery of the debt.
5
(3) An authorisation for the purposes of paragraph (1)(a) or (2)(b):
6
(a) must be in writing; and
7
(b) must specify the amount of the deduction; and
8
(c) may be withdrawn in writing by the person at any time.
9
(4) Any variation in the amount of the authorised deduction must also
10
be authorised in writing by the person.
11
68 Deductions for PAYG withholding
12
An employer or the Secretary (the payer) may deduct an amount
13
from an instalment that is payable to a person if the payer is
14
required to withhold the amount under section 12-110 in
15
Schedule 1 to the Taxation Administration Act 1953.
16
69 Deductions relating to child support
17
(1) An employer may deduct an amount from an instalment that is
18
payable to a person if the employer is required to deduct the
19
amount under section 46 or 72A of the Child Support (Registration
20
and Collection) Act 1988.
21
(2) The Secretary, in accordance with a notice given to the Secretary
22
under section 72AD of the Child Support (Registration and
23
Collection) Act 1988 in relation to a person to whom an instalment
24
is payable, must:
25
(a) make deductions from an instalment that is payable to the
26
person (subject to subsections (3) and (4) of that section); and
27
(b) pay the amounts deducted to the Child Support Registrar.
28
Chapter 3 Payment of parental leave pay
Part 3-1 Instalments of parental leave pay
Division 2 Instalments of parental leave pay
Section 70
66 Paid Parental Leave Bill 2010 No. , 2010
70 No other deductions
1
(1) An amount must not be deducted from an instalment except in
2
accordance with section 67, 68 or 69. This subsection applies
3
despite any other law of the Commonwealth, a State or a Territory.
4
(2) An employer must comply with subsection (1).
5
Note:
This subsection is a civil penalty provision (see section 146).
6
7
Payment of parental leave pay Chapter 3
Payment of instalments by employer Part 3-2
Guide to this Part Division 1
Section 71
Paid Parental Leave Bill 2010 No. , 2010 67
Part 3-2--Payment of instalments by employer
1
Division 1--Guide to this Part
2
71 Guide to this Part
3
This Part is about the payment of instalments to a person by the
4
person's employer.
5
Under Division 2, an employer is only required to pay an
6
instalment to a person if an employer determination has come into
7
force for the employer and the person (see Part 3-5) and the
8
employer has been paid enough by the Secretary to fund the
9
instalment.
10
Division 3 is about the payment by the Secretary of amounts
11
(called PPL funding amounts) to an employer to ensure the
12
employer has been paid enough to fund an instalment.
13
Division 4 sets out certain obligations of employers relating to
14
paying instalments (such as giving and keeping records and
15
notifying the Secretary if certain events happen).
16
17
Chapter 3 Payment of parental leave pay
Part 3-2 Payment of instalments by employer
Division 2 Payment of instalments by employer
Section 72
68 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Payment of instalments by employer
1
72 When an employer pays instalments
2
Employer determination in force on day during instalment period
3
(1) An employer must pay an instalment to a person on the payday for
4
the instalment if:
5
(a) the instalment is payable to the person; and
6
(b) an employer determination is in force for the employer and
7
the person on a day during the instalment period to which the
8
instalment relates; and
9
(c) as at the payroll cut-off for the instalment, the employer has
10
been paid enough to fund the instalment.
11
Note 1:
This subsection is a civil penalty provision (see section 146).
12
Note 2:
See section 96 for when the employer is taken to have complied with
13
this requirement.
14
Employer determination comes into force after instalment period
15
(2)
If:
16
(a) a person's employer becomes required under subsection (1)
17
to pay an instalment after the start of the person's PPL
18
period; and
19
(b) an earlier instalment is taken to have become payable to the
20
person under section 91 (which deals with the effect of the
21
Secretary or an employer becoming required to pay
22
instalments after the start of a person's PPL period); and
23
(c) as at the payroll cut-off for the instalment referred to in
24
subsection (1), the employer has been paid enough to fund
25
the earlier instalment;
26
the employer must pay the earlier instalment on the payday for the
27
instalment referred to in subsection (1).
28
Note 1:
This subsection is a civil penalty provision (see section 146).
29
Note 2:
See section 96 for when the employer is taken to have complied with
30
this requirement.
31
Payment of parental leave pay Chapter 3
Payment of instalments by employer Part 3-2
Payment of instalments by employer Division 2
Section 73
Paid Parental Leave Bill 2010 No. , 2010 69
Employer determination in force and employer paid enough at
1
later time
2
(3)
If:
3
(a) an employer is not required under subsection (1) or (2) to pay
4
an instalment only because paragraph (1)(c) or (2)(c) (as the
5
case may be) was not satisfied; and
6
(b) that paragraph is satisfied as at the payroll cut-off for an
7
instalment for a later instalment period;
8
the employer must pay the instalment to the person on the payday
9
for the instalment for that later instalment period.
10
Note 1:
This subsection is a civil penalty provision (see section 146).
11
Note 2:
If there is no instalment payable for a later instalment period, see
12
section 95.
13
Note 3:
See section 96 for when the employer is taken to have complied with
14
this requirement.
15
(4) An employer is not required to pay an instalment to a person
16
except in accordance with this section.
17
73 When an employer has been paid enough to fund an instalment
18
An employer has been paid enough to fund an instalment for a
19
person as at a day if the total of the PPL funding amounts paid to
20
the employer for the person for a child before that day is at least
21
the total of the following amounts:
22
(a) the amount of the instalments the employer has previously
23
paid to, or in relation to, the person for the child;
24
(b) the amount of the instalment;
25
(c) the amount of any other instalment that is to be paid to, or in
26
relation to, the person on the payday for the instalment.
27
74 Method of payment of instalment payable by employer
28
An instalment payable to a person by an employer must be paid in
29
money by one, or a combination, of the following methods:
30
(a)
cash;
31
(b) cheque, money order, postal order or similar order, payable
32
to the person;
33
Chapter 3 Payment of parental leave pay
Part 3-2 Payment of instalments by employer
Division 2 Payment of instalments by employer
Section 74
70 Paid Parental Leave Bill 2010 No. , 2010
(c) the use of an electronic funds transfer system to credit an
1
account held by the person.
2
Note:
This section is a civil penalty provision (see section 146).
3
4
Payment of parental leave pay Chapter 3
Payment of instalments by employer Part 3-2
PPL funding amounts Division 3
Section 75
Paid Parental Leave Bill 2010 No. , 2010 71
Division 3--PPL funding amounts
1
75 Payment of PPL funding amounts
2
(1) The Secretary must pay one or more amounts (the PPL funding
3
amounts) to a person's employer if the Secretary is satisfied that:
4
(a) an instalment was or is likely to be payable to the person; and
5
(b) the employer is or is likely to be required to pay the
6
instalment to the person.
7
(2) Subsection (1) does not require the Secretary to pay a PPL funding
8
amount in relation to an instalment earlier than a reasonable period
9
before the payroll cut-off for the instalment.
10
(3)
If:
11
(a) the Secretary is required under subsection (1) to pay a PPL
12
funding amount to a person's employer in relation to an
13
instalment for the person; and
14
(b) the employer has not been paid enough to fund the instalment
15
as at the first payroll cut-off for an instalment for the person
16
after the Secretary becomes required to pay the PPL funding
17
amount;
18
the Secretary must pay the PPL funding amount to the employer
19
before the next payroll cut-off for an instalment for the person.
20
76 Rules affecting the amount of a PPL funding amount
21
(1) A PPL funding amount for a person must not:
22
(a) be less than the minimum amount for the PPL funding
23
amount; or
24
(b) be more than the sum of the following:
25
(i) the minimum amount;
26
(ii) the amount that is 30 times the daily national minimum
27
wage amount that applies on the day the PPL funding
28
amount is paid to the employer.
29
(2)
The
minimum amount for a PPL funding amount is the sum of the
30
amounts of the instalments that:
31
Chapter 3 Payment of parental leave pay
Part 3-2 Payment of instalments by employer
Division 3 PPL funding amounts
Section 77
72 Paid Parental Leave Bill 2010 No. , 2010
(a) will have become payable to the person as at the next payday
1
for an instalment for the person after the PPL funding amount
2
is paid to the person's employer; and
3
(b) do not relate to days in the person's PPL period for which the
4
Secretary has previously paid the employer a PPL funding
5
amount for the person.
6
(3) The sum of the PPL funding amounts paid to a person's employer
7
for the person must not be more than the sum of the amounts of the
8
instalments that are payable to the person for the person's PPL
9
period.
10
77 Notice requirements relating to PPL funding amounts
11
(1) The Secretary must give a written notice to an employer each time
12
the Secretary pays a PPL funding amount to the employer for a
13
person.
14
(2) The notice must contain the following information:
15
(a) the name of the person for whom the PPL funding amount
16
has been paid;
17
(b) the amount of the PPL funding amount;
18
(c) the PPL days for the person for which the PPL funding
19
amount has been paid;
20
(d) the daily national minimum wage amount for each of those
21
PPL days;
22
(e) any information prescribed by the PPL rules.
23
78 PPL funding amounts not public money
24
To avoid doubt, a PPL funding amount paid by the Secretary to an
25
employer (other than an Agency within the meaning of the
26
Financial Management and Accountability Act 1997) is not public
27
money for the purposes of that Act.
28
79 Protection of PPL funding amounts
29
A PPL funding amount is absolutely inalienable, whether by way
30
of, or in consequence of, sale, assignment, charge, execution,
31
bankruptcy or otherwise, until it has been paid to the employer.
32
Payment of parental leave pay Chapter 3
Payment of instalments by employer Part 3-2
Obligations of employer relating to paying instalments Division 4
Section 80
Paid Parental Leave Bill 2010 No. , 2010 73
Division 4--Obligations of employer relating to paying
1
instalments
2
80 Giving person record of payment
3
An employer must, before the end of the next working day after
4
paying an instalment to a person, give the person the information
5
prescribed by the PPL rules in the form (if any) prescribed by the
6
PPL rules.
7
Note:
This section is a civil penalty provision (see section 146).
8
81 Keeping records
9
(1) An employer must make, and keep for 7 years, records of the kind
10
prescribed by the PPL rules in relation to each person for whom an
11
employer determination for the employer comes into force.
12
Note:
This subsection is a civil penalty provision (see section 146).
13
(2) A record must:
14
(a) if a form is prescribed by the PPL rules for that kind of
15
record--be in that form; and
16
(b) include any information prescribed by the PPL rules.
17
Note:
This subsection is a civil penalty provision (see section 146).
18
82 Notifying Secretary if certain events happen
19
(1) If the Secretary makes an employer determination for a person and
20
the person's employer, the employer must notify the Secretary if
21
any of the following events happen:
22
(a) the employer's bank account information changes;
23
(b) the person's instalment period changes;
24
(c) the day on which the person would usually be paid in relation
25
to the person's performance of work for instalment periods
26
for the person changes;
27
(d) the payroll cut-off for instalments payable to the person
28
changes;
29
(e) the employer becomes aware that the employer has ceased, or
30
is likely to cease, to carry on a business;
31
Chapter 3 Payment of parental leave pay
Part 3-2 Payment of instalments by employer
Division 4 Obligations of employer relating to paying instalments
Section 82
74 Paid Parental Leave Bill 2010 No. , 2010
(f) the person returns to work for the employer at any time from
1
the birth of the person's child until the end of the person's
2
PPL period;
3
(g) the person ceases to be employed by the employer before the
4
end of the person's PPL period;
5
(h) the person is not paid an instalment the employer is required
6
to pay to the person;
7
(i) the employer is not paid enough to fund a particular
8
instalment for the person as at the payroll cut-off for the
9
instalment;
10
(j) if the Secretary has agreed to pay a particular PPL funding
11
amount to the employer--the employer is not paid the PPL
12
funding amount as agreed;
13
(k) in any case--a PPL funding amount paid to the employer is
14
more than the sum of the amounts of the instalments payable
15
for the PPL days for which the PPL funding amount has been
16
paid;
17
(l) the sum of the PPL funding amounts paid to the employer for
18
the person is more than the sum of the amounts of the
19
instalments that are payable by the employer to the person for
20
the person's PPL period.
21
(2) The notice must be given:
22
(a) as soon as practicable after the employer becomes aware that
23
the event has happened (subject to paragraph (b)); and
24
(b) if paragraph (1)(e) applies--not more than 30 days before the
25
day the employer ceased, or is likely to cease, to carry on the
26
business; and
27
(c)
in
writing.
28
Note:
This subsection is a civil penalty provision (see section 146).
29
When obligation to notify of certain events ceases
30
(3) An obligation under subsection (1) that arises because of any of
31
paragraphs (1)(a) to (g) ceases to apply if the event happens on or
32
after the earliest of the following days:
33
(a) the day a decision is made that has the effect that parental
34
leave pay is not payable to the person (including a decision
35
that there are no days in the person's PPL period);
36
Payment of parental leave pay Chapter 3
Payment of instalments by employer Part 3-2
Obligations of employer relating to paying instalments Division 4
Section 82
Paid Parental Leave Bill 2010 No. , 2010 75
(b) if the employer determination comes into force:
1
(i) if the employer determination is not revoked--the day
2
after the end of the person's PPL period; and
3
(ii) if the employer determination is revoked--the day of
4
the revocation;
5
(c) if the employer determination never comes into force--the
6
day the Secretary becomes required to pay instalments to the
7
person instead of the employer under the employer
8
determination.
9
10
Chapter 3 Payment of parental leave pay
Part 3-3 Payment of instalments by Secretary
Division 1 Guide to this Part
Section 83
76 Paid Parental Leave Bill 2010 No. , 2010
Part 3-3--Payment of instalments by Secretary
1
Division 1--Guide to this Part
2
83 Guide to this Part
3
This Part is about the payment of instalments to a person by the
4
Secretary.
5
The Secretary is required to pay instalments directly to a person if
6
an employer determination is never made for the person.
7
The Secretary is also required to pay instalments directly to a
8
person in certain circumstances where an employer determination
9
is being reviewed or has been revoked, or where a matter has been
10
referred to the Fair Work Ombudsman relating to a failure by an
11
employer to pay an instalment to a person.
12
In certain circumstances where the Secretary becomes required to
13
pay instalments to a person, the Secretary is also required to pay
14
the person arrears for instalments that had previously become
15
payable, but not been paid, to the person.
16
17
Payment of parental leave pay Chapter 3
Payment of instalments by Secretary Part 3-3
Payment of instalments by Secretary Division 2
Section 84
Paid Parental Leave Bill 2010 No. , 2010 77
Division 2--Payment of instalments by Secretary
1
84 When the Secretary pays instalments
2
(1) If the Secretary is required under this section to pay an instalment
3
to a person, the Secretary must do so on the payday for the
4
instalment.
5
Note:
See section 96 for when the Secretary is taken to have complied with
6
this requirement.
7
Employer determination never made
8
(2) The Secretary must pay an instalment that is payable to a person if
9
the Secretary, in accordance with section 101, never made an
10
employer determination for the person and the person's employer.
11
Employer determination reviewed
12
(3) The Secretary must pay an instalment that is payable to a person if:
13
(a) the person's employer has applied for review under Part 5-1
14
or 5-2, or to a court for judicial review, in relation to the
15
employer determination made for the person and the
16
employer; and
17
(b) the employer determination has not come into force before
18
the 28th day after the start of the person's PPL period; and
19
(c) the instalment relates to an instalment period that:
20
(i) either includes the day referred to in paragraph (b) or is
21
a later instalment period; and
22
(ii) starts before the day (the transfer day) on which the
23
employer determination comes into force (if at all).
24
Note 1:
The Secretary must also pay the person instalments payable to the
25
person for earlier instalment periods (see section 85).
26
Note 2:
If the employer determination never comes into force, the Secretary
27
will pay all instalments to the person.
28
Employer determination revoked
29
(4) The Secretary must pay an instalment that is payable to a person if:
30
(a) the Secretary revokes the employer determination for the
31
person and the person's employer; and
32
Chapter 3 Payment of parental leave pay
Part 3-3 Payment of instalments by Secretary
Division 2 Payment of instalments by Secretary
Section 85
78 Paid Parental Leave Bill 2010 No. , 2010
(b) the instalment relates to an instalment period that starts on or
1
after the day (the transfer day) the revocation comes into
2
force.
3
Note:
See sections 85 and 86 for when the Secretary must also pay the
4
person instalments payable to the person for earlier instalment periods.
5
Referral of matter to Fair Work Ombudsman relating to failure to
6
pay instalment
7
(5) The Secretary must pay an instalment that is payable to a person if:
8
(a) the Secretary has referred a matter to the Fair Work
9
Ombudsman relating to a contravention by the employer of
10
section 70, 72 or 74 (which deal with unauthorised
11
deductions and payment of instalments by an employer) in
12
relation to the person; and
13
(b) the instalment relates to an instalment period that starts on or
14
after the day (the transfer day) after the last PPL day for
15
which the Secretary has paid the employer a PPL funding
16
amount for the person; and
17
(c) the Secretary is satisfied that it is appropriate to pay the
18
instalment; and
19
(d) the Fair Work Ombudsman has not notified the Secretary,
20
before the transfer day, that the employer has not complied
21
with a compliance notice given for the contravention referred
22
to in paragraph (a).
23
(6) If both subsections (4) and (5) apply in relation to a person, then
24
only the subsection where the transfer day occurs first is taken to
25
apply in relation to the person.
26
85 Payment of arrears--employer determination reviewed or
27
revoked before coming into force
28
(1) This section applies if:
29
(a) the Secretary is required to pay an instalment to a person
30
under subsection 84(3) (which deals with payment of
31
instalments where an employer determination is reviewed);
32
or
33
(b) both of the following apply:
34
Payment of parental leave pay Chapter 3
Payment of instalments by Secretary Part 3-3
Payment of instalments by Secretary Division 2
Section 86
Paid Parental Leave Bill 2010 No. , 2010 79
(i) the Secretary is required to pay an instalment to a
1
person under subsection 84(4) (which deals with
2
payment of instalments where an employer
3
determination is revoked);
4
(ii) the employer determination made for the person and the
5
person's employer has never come into force.
6
(2) The Secretary must pay the person each instalment that is taken to
7
have become payable to the person under section 91 (which deals
8
with the effect of the Secretary or an employer becoming required
9
to pay instalments after the start of a person's PPL period).
10
(3) The Secretary must pay the instalments on the payday for the first
11
instalment that the Secretary is required to pay as referred to in
12
paragraph (1)(a) or (b) of this section.
13
Note:
See section 96 for when the Secretary is taken to have complied with
14
this requirement.
15
86 Payment of arrears--employer determination revoked after
16
coming into force
17
(1) This section applies if:
18
(a) the Secretary revokes an employer determination that has
19
come into force for a person and the person's employer; and
20
(b) the employer has not, as at the payday for the instalment,
21
paid all or part of an instalment that was payable to the
22
person by the employer; and
23
(c)
either:
24
(i) the Fair Work Ombudsman has notified the Secretary
25
that the employer has not complied with a compliance
26
notice given for a contravention of section 70, 72 or 74
27
(which deal with unauthorised deductions and payment
28
of instalments by an employer) that relates to the
29
payment of the instalment; or
30
(ii) the employer determination was revoked because the
31
Secretary was satisfied that the employer was insolvent.
32
(2) The Secretary must pay the person the instalment, or the part of the
33
instalment, on the payday for the next instalment that the Secretary
34
is required to pay under subsection 84(4) (which deals with
35
Chapter 3 Payment of parental leave pay
Part 3-3 Payment of instalments by Secretary
Division 2 Payment of instalments by Secretary
Section 87
80 Paid Parental Leave Bill 2010 No. , 2010
payment of instalments where an employer determination is
1
revoked).
2
Note 1:
If there is no instalment payable for a later instalment period, see
3
section 95.
4
Note 2:
See section 96 for when the Secretary is taken to have complied with
5
this requirement.
6
(3) Subsection (2) does not require the Secretary to pay the person all
7
or part of an instalment to the extent that the instalment or the part
8
of the instalment has been recovered under section 172 (which
9
deals with debts owing by employers to employees).
10
(4) To avoid doubt, this section applies whether or not the Secretary is
11
required to pay an instalment to the person under subsection 84(4).
12
87 Payment of arrears--extending PPL period after review
13
(1) The Secretary must pay a person each instalment that is taken to
14
have become payable to the person under section 92 (which deals
15
with the effect of extending a person's PPL period after a review).
16
(2) The Secretary must pay the instalments as soon as practicable after
17
the Secretary becomes required to pay the instalments.
18
88 Method of payment of instalment payable by Secretary
19
(1) The Secretary must pay an instalment, or a part of an instalment,
20
that the Secretary is required to pay to a person, to the credit of a
21
bank account nominated and maintained by the person.
22
(2) The Secretary may direct that the whole or a part of an instalment
23
that the Secretary is required to pay a person is to be paid in a
24
different way from that provided for by subsection (1). If the
25
Secretary gives the direction, the instalment, or the part of the
26
instalment, is to be paid in accordance with the direction.
27
(3) A direction made under subsection (2) is not a legislative
28
instrument.
29
Payment of parental leave pay Chapter 3
Payment of instalments by Secretary Part 3-3
Payment of instalments by Secretary Division 2
Section 89
Paid Parental Leave Bill 2010 No. , 2010 81
89 Giving person record of payment
1
If the Secretary pays an instalment, or part of an instalment, to or
2
in relation to a person, in particular circumstances, the Secretary
3
must give the person the information prescribed by the PPL rules
4
in relation to instalments paid in those circumstances.
5
6
Chapter 3 Payment of parental leave pay
Part 3-4 General rules relevant to paying instalments
Division 1 Guide to this Part
Section 90
82 Paid Parental Leave Bill 2010 No. , 2010
Part 3-4--General rules relevant to paying
1
instalments
2
Division 1--Guide to this Part
3
90 Guide to this Part
4
This Part contains general rules that are relevant to the payment of
5
instalments to a person, whether by the person's employer or the
6
Secretary.
7
Some of those rules deem instalments to have become payable in
8
certain circumstances (such as when an employer or the Secretary
9
becomes required to pay instalments to a person after the person's
10
PPL period has already started).
11
Other rules deal with the effect on a person's instalment periods of
12
changing who is required to pay instalments to the person.
13
There are also rules that relate to what happens when an instalment
14
cannot be paid on the day specified in this Act.
15
Finally, this Part deals with the interaction of this Chapter with
16
certain Commonwealth, State and Territory laws.
17
18
Payment of parental leave pay Chapter 3
General rules relevant to paying instalments Part 3-4
General rules relevant to paying instalments Division 2
Section 91
Paid Parental Leave Bill 2010 No. , 2010 83
Division 2--General rules relevant to paying instalments
1
91 Effect of the Secretary or employer becoming required to pay
2
instalments after start of PPL period
3
If:
4
(a) the Secretary or a person's employer (the payer) becomes
5
required to pay an instalment to the person after the start of
6
the person's PPL period; and
7
(b) neither the Secretary nor the employer is otherwise required
8
to pay an earlier instalment to the person; and
9
(c) one or more instalments would have been payable to the
10
person on the paydays for the instalments if the payer had
11
been required to pay instalments from the start of the
12
person's PPL period;
13
then the instalments referred to in paragraph (c) are taken to have
14
become payable on the respective paydays for the instalments.
15
92 Effect of extending PPL period after review
16
If:
17
(a) a person's PPL period ends; and
18
(b) later, a decision in relation to a payability determination for
19
the person is made that has the effect that the person's PPL
20
period is extended by an additional period; and
21
(c) one or more instalments that relate to instalment periods that
22
overlap with the additional period would have been payable
23
to the person on the paydays for the instalments if:
24
(i) the payability determination had always specified the
25
extended PPL period; and
26
(ii) the Secretary had been required to pay the instalments;
27
and
28
(d) the Secretary is not otherwise required to pay the instalments;
29
then the instalments referred to in paragraph (c) are taken to have
30
become payable on the respective paydays for the instalments.
31
Chapter 3 Payment of parental leave pay
Part 3-4 General rules relevant to paying instalments
Division 2 General rules relevant to paying instalments
Section 93
84 Paid Parental Leave Bill 2010 No. , 2010
93 Effect on instalment periods of employer determination coming
1
into force after review
2
(1) This section applies if:
3
(a) the Secretary is required to pay an instalment to a person
4
under subsection 84(3) (which deals with payment of
5
instalments where an employer determination is reviewed);
6
and
7
(b) the employer determination comes into force for the person
8
and the person's employer on the transfer day referred to in
9
that subsection.
10
(2) The instalment period for the person for the last instalment payable
11
by the Secretary is taken to end on the day before the transfer day.
12
(3) The instalment period for the person for the first instalment
13
payable by the employer is taken to start on the transfer day.
14
Note:
Subsection (3) does not affect when the instalment period ends.
15
94 Effect on instalment periods of revocation etc.
16
(1) This section applies if:
17
(a) an employer determination has come into force for a person
18
and the person's employer; and
19
(b) the Secretary becomes required to pay an instalment to the
20
person under either of the following subsections for an
21
instalment period that starts on or after the transfer day
22
referred to in that subsection:
23
(i) subsection 84(4) (which deals with payment of
24
instalments where an employer determination is
25
revoked);
26
(ii) subsection 84(5) (which deals with payment of
27
instalments where a matter is referred to the Fair Work
28
Ombudsman relating to a failure to pay an instalment).
29
(2) The instalment period for the person for the last instalment payable
30
by the employer is taken to end on the day before the transfer day.
31
(3) The instalment period for the person for the first instalment
32
payable by the Secretary is taken to start on the transfer day.
33
Payment of parental leave pay Chapter 3
General rules relevant to paying instalments Part 3-4
General rules relevant to paying instalments Division 2
Section 95
Paid Parental Leave Bill 2010 No. , 2010 85
Note:
Subsection (3) does not affect when the instalment period ends.
1
95 Paying instalment on payday for later instalment--no later
2
instalment
3
If:
4
(a) the Secretary or a person's employer (the payer) is required
5
to pay an instalment to the person on the payday for an
6
instalment for a later instalment period; and
7
(b) that later instalment is not payable by the payer;
8
the payer must pay the instalment referred to in paragraph (a) on
9
the day that would have been the payday for the later instalment if
10
it had been payable by the payer.
11
96 Paying instalment on particular day--complying with obligation
12
The Secretary or a person's employer (the payer) is taken to have
13
complied with a requirement to pay an instalment on a particular
14
day if the payer pays the instalment:
15
(a) before that day; or
16
(b) if the payer cannot pay the instalment on that day--as soon
17
as practicable after that day.
18
97 Effect of garnishee etc. order
19
(1)
If:
20
(a) an instalment is being paid, or has been paid, to the credit of
21
an account; and
22
(b) a court order in the nature of a garnishee order comes into
23
force in relation to the account;
24
the court order does not apply to the saved amount (if any) in the
25
account.
26
(2)
The
saved amount is worked out as follows:
27
Chapter 3 Payment of parental leave pay
Part 3-4 General rules relevant to paying instalments
Division 2 General rules relevant to paying instalments
Section 98
86 Paid Parental Leave Bill 2010 No. , 2010
Method statement
1
Step 1. Work out the total amount of the instalments that have
2
been paid to the credit of the account during the 4 week
3
period immediately before the court order came into
4
force.
5
Step 2. Subtract from the step 1 amount the total amount
6
withdrawn from the account during the same 4 week
7
period: the result is the saved amount.
8
98 Exemption from operation of workers' compensation and
9
accident compensation laws
10
(1) The payment of an instalment of parental leave pay is not to be
11
taken into account for the purposes of the following provisions or
12
laws:
13
(a) a provision of a law of the Commonwealth, a State or a
14
Territory, if the provision deals with:
15
(i) workers' compensation; or
16
(ii)
accident
compensation;
17
(b) a law, or a provision of a law, prescribed by the PPL rules, to
18
the extent that the law or provision deals with a matter
19
referred to in paragraph (a).
20
(2) The PPL rules may provide that subsection (1) does not apply in
21
relation to a prescribed provision of a law of the Commonwealth, a
22
State or a Territory.
23
99 PPL period is not a period of paid leave
24
Despite any law of the Commonwealth, a State or a Territory, or
25
any industrial instrument (however described), a period of unpaid
26
leave is not to be taken to be a period of paid leave just because a
27
person receives instalments of parental leave pay for all or part of
28
that period.
29
30
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
Guide to this Part Division 1
Section 100
Paid Parental Leave Bill 2010 No. , 2010 87
Part 3-5--Employer determinations
1
Division 1--Guide to this Part
2
100 Guide to this Part
3
This Part is about employer determinations. If an employer
4
determination is in force for an employer and a person, the
5
employer must pay instalments to the person.
6
Under Division 2, the Secretary must make an employer
7
determination if the Secretary is satisfied that certain conditions
8
have been met. Not all of those conditions need to be satisfied for a
9
person if the employer has made an election under Division 4 that
10
applies to the person and the person consents to the employer
11
paying the instalments.
12
If the Secretary makes an employer determination for a person and
13
the person's employer, the employer must either:
14
(a)
give the Secretary certain information to enable the
15
Secretary to pay the employer PPL funding
16
amounts for the person; or
17
(b)
apply for review of the employer determination
18
under Part 5-1 or 5-2.
19
Division 3 is about when an employer determination is in force. It
20
includes rules about revoking employer determinations.
21
Under Division 4, an employer may elect to pay instalments to one
22
or more employees.
23
Division 5 provides for the Secretary to give an employer for
24
whom an employer determination has been made notice of certain
25
other decisions under this Act.
26
27
Chapter 3 Payment of parental leave pay
Part 3-5 Employer determinations
Division 2 Making employer determinations
Section 101
88 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Making employer determinations
1
101 Making employer determinations
2
When Secretary must make employer determination
3
(1) The Secretary must make a determination under this section (the
4
employer determination) that a person's employer is to pay the
5
person instalments if the Secretary is satisfied, when making the
6
determination, that:
7
(a) a payability determination that parental leave pay is payable
8
to the person, or an initial eligibility determination for the
9
person, is in force; and
10
(b) instalments are likely, if the determination is made, to be
11
payable by the employer to the person for at least 40
12
consecutive PPL days that are week days; and
13
(c) the person has, or will have, been employed by the employer
14
for at least 12 months immediately before:
15
(i) if the person's claim was made before the birth of the
16
person's child--the expected date of birth of the child;
17
or
18
(ii) if the person's claim was made after the birth of the
19
person's child--the later of the expected date of birth of
20
the child and the day the child was born; and
21
(d) the person is likely to be an Australian-based employee of the
22
employer during whichever of the following periods applies:
23
(i) if the Secretary has made a payability determination that
24
parental leave pay is payable to the person--the
25
person's PPL period;
26
(ii) otherwise--the period of days for which instalments are
27
likely, if the determination is made, to be payable to the
28
person by the employer; and
29
(e) the employer has an ABN; and
30
(f) if paragraphs (c) to (e) are satisfied in relation to more than
31
one employer of the person (other than because of
32
subsection (2))--the person nominated the employer in the
33
claim as the employer who would be required to pay
34
instalments to the person.
35
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
Making employer determinations Division 2
Section 101
Paid Parental Leave Bill 2010 No. , 2010 89
Effect of election by employer to pay instalments
1
(2) Paragraphs (1)(b) and (c) do not apply in relation to a person if:
2
(a) the person's employer has made an election under
3
section 109 that applies to the person; and
4
(b) the person has consented in the claim to the employer paying
5
instalments to the person.
6
When must employer determination be made
7
(3) The Secretary must not make an employer determination for a
8
person and the person's employer unless:
9
(a) the Secretary is satisfied as referred to in subsection (1); and
10
(b) the employer determination is made on or before the day on
11
which the payability determination referred to in
12
paragraph (1)(a) is made.
13
Note:
See section 106 for when the Secretary may, despite this subsection,
14
make an employer determination for a person and the person's
15
employer after the day referred to in paragraph (b).
16
When Secretary may decide not to make employer determination
17
(4) Despite subsection (1), the Secretary may decide not to make an
18
employer determination for a person and the person's employer if
19
the Secretary is satisfied of all or any of the following:
20
(a) the person's PPL period has ended;
21
(b) the person is a tertiary claimant;
22
(c) the child in relation to whom parental leave pay is payable to
23
the person is stillborn or has died;
24
(d) both of the following apply:
25
(i) a primary claimant owes a debt to the Commonwealth
26
in relation to amounts paid to, or in relation to, the
27
primary claimant by way of instalments for a child;
28
(ii) the person is a secondary claimant for parental leave pay
29
for the same child;
30
(e) the employer is not a fit and proper person.
31
Chapter 3 Payment of parental leave pay
Part 3-5 Employer determinations
Division 2 Making employer determinations
Section 101
90 Paid Parental Leave Bill 2010 No. , 2010
Matters relevant to whether employer is a fit and proper person
1
(5) The Secretary may take into account the following matters in
2
determining whether an employer is a fit and proper person:
3
(a) whether the employer is insolvent;
4
(b) whether the employer has, or is alleged to have, contravened
5
a civil penalty provision of this Act;
6
(c) whether a matter relating to a contravention of section 70 or
7
Part 3-2 (which deal with unauthorised deductions and
8
payment of instalments by an employer) by the employer has
9
been referred to the Fair Work Ombudsman under
10
section 143;
11
(d) subject to Part VIIC of the Crimes Act 1914, whether the
12
employer has, or is alleged to have, contravened a provision
13
of an industrial law (within the meaning of the Fair Work
14
Act);
15
(e) subject to Part VIIC of the Crimes Act 1914, whether the
16
employer has been convicted of an offence against this Act,
17
or a law of the Commonwealth, a State or a Territory that
18
involves:
19
(i) fraud or dishonesty; or
20
(ii) the misapplication of money; or
21
(iii) the management of the affairs of a body (whether or not
22
incorporated);
23
(f) any other matter the Secretary considers relevant.
24
Note:
Part VIIC of the Crimes Act 1914 includes provisions that, in certain
25
circumstances, relieve persons from the requirement to disclose spent
26
convictions and require persons aware of such convictions to disregard
27
them.
28
Secretary may assume state of affairs will not change
29
(6) In deciding whether to make a determination under this section, the
30
Secretary may act on the assumption that the state of affairs known
31
to the Secretary when making the determination will remain
32
unchanged.
33
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
Making employer determinations Division 2
Section 102
Paid Parental Leave Bill 2010 No. , 2010 91
102 Secretary must give notice of employer determination
1
(1) If the Secretary makes an employer determination for a person and
2
the person's employer, the Secretary must give the employer and
3
the person a written notice advising them that the determination
4
has been made.
5
Notice given to person
6
(2) The notice given to the person must contain the name of the
7
employer and any information prescribed by the PPL rules.
8
Notice given to employer
9
(3) The notice given to the employer must contain the following
10
information:
11
(a) the name of the person;
12
(b) whether the Secretary has made a payability determination
13
that parental leave pay is payable to the person;
14
(c) if the Secretary has made such a payability determination for
15
the person--the person's PPL period;
16
(d) if the Secretary has not made such a payability determination
17
for the person--the period the Secretary expects to specify as
18
the person's PPL period if he or she were to make such a
19
payability determination for the person;
20
(e) in any case--any information prescribed by the PPL rules.
21
(4) The notice given to the employer must also be dated. The date of
22
the notice must be the date the preparation of the notice was
23
completed.
24
Decision not to make employer determination--notice to person
25
(5) If the Secretary decides not to make an employer determination for
26
a person, the Secretary must give the person a written notice
27
advising the person of that decision. The notice must contain any
28
information prescribed by the PPL rules.
29
Chapter 3 Payment of parental leave pay
Part 3-5 Employer determinations
Division 2 Making employer determinations
Section 103
92 Paid Parental Leave Bill 2010 No. , 2010
103 Employer must respond to notice of employer determination
1
Within 14 days after the date of the notice given under section 102,
2
the employer must do one of the following:
3
(a) give the Secretary a written notice (the acceptance notice)
4
that complies with section 104;
5
(b) apply for a review of the employer determination under
6
Part 5-1 or 5-2.
7
Note:
This section is a civil penalty provision (see section 146).
8
104 Requirements for an acceptance notice
9
Acceptance of obligation to pay instalments
10
(1) The acceptance notice must contain a declaration to the effect that
11
the employer accepts the employer's obligation to pay instalments
12
to the person.
13
Bank account information
14
(2) The acceptance notice must contain the following information
15
(bank account information) about an account held and maintained
16
by the employer with a financial institution into which PPL
17
funding amounts can be paid:
18
(a) the account number;
19
(b) the BSB number of the account;
20
(c) the name in which the account is held;
21
(d) the name of the financial institution.
22
Pay cycle information
23
(3) The acceptance notice must contain the following information (pay
24
cycle information) for the person:
25
(a) the person's instalment period;
26
(b) the first day of the first instalment period for the person that
27
overlaps with:
28
(i) if the Secretary has made a payability determination that
29
parental leave pay is payable to the person--the
30
person's PPL period; or
31
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
Making employer determinations Division 2
Section 105
Paid Parental Leave Bill 2010 No. , 2010 93
(ii) if the Secretary has not made such a payability
1
determination for the person--the person's expected
2
PPL period referred to in paragraph 102(3)(d);
3
(c) in any case--the payday and the payroll cut-off for an
4
instalment that would be payable for the instalment period
5
referred to in paragraph (b) of this subsection.
6
PPL rules may specify additional information
7
(4) The acceptance notice must also contain any information
8
prescribed by the PPL rules.
9
Employer may confirm bank account information in election
10
(5) Subsection (2) does not apply if:
11
(a) the person's employer has made an election under
12
section 109 that applies to the person; and
13
(b) the acceptance notice contains a declaration to the effect that
14
the employer's bank account information given in the notice
15
under subsection 109(1) is correct in relation to the person.
16
105 Giving bank account and pay cycle information etc. after review
17
(1) This section applies if:
18
(a) an employer applies for review under Part 5-1 or 5-2, or to a
19
court for judicial review, in relation to an employer
20
determination made for a person and the employer; and
21
(b) either of the following events happens:
22
(i) the employer withdraws the application;
23
(ii) the employer determination has not been set aside or
24
quashed and is no longer subject to review; and
25
(c) the person's PPL period has not ended.
26
(2) The Secretary must, as soon as practicable after becoming aware
27
that the event referred to in paragraph (1)(b) has happened, give the
28
employer a written notice requiring the employer to give the
29
Secretary a written notice containing the following information:
30
(a) the employer's bank account information;
31
(b) the pay cycle information for the person;
32
Chapter 3 Payment of parental leave pay
Part 3-5 Employer determinations
Division 2 Making employer determinations
Section 106
94 Paid Parental Leave Bill 2010 No. , 2010
(c) any information prescribed by the PPL rules.
1
(3) The employer must give the notice within 14 days of the date of
2
the notice given by the Secretary.
3
Note:
This subsection is a civil penalty provision (see section 146).
4
106 Effect of decision on review that parental leave pay is payable
5
The Secretary may, despite subsection 101(3), make an employer
6
determination for a person and the person's employer, if:
7
(a) a decision is made that has the effect that parental leave pay
8
is not payable to the person (whether or not the decision is a
9
payability determination to that effect); and
10
(b) a later decision is made that has the effect that a payability
11
determination that parental leave pay is payable to the person
12
comes into force; and
13
(c) the Secretary is satisfied, when making the employer
14
determination, of the matters referred to in the applicable
15
paragraphs of subsection 101(1) in relation to the person and
16
the employer.
17
18
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
When an employer determination is in force Division 3
Section 107
Paid Parental Leave Bill 2010 No. , 2010 95
Division 3--When an employer determination is in force
1
107 When an employer determination comes into force
2
(1) An employer determination comes into force for a person and the
3
person's employer as set out in subsection (2) or (3). Otherwise,
4
the employer determination does not come into force at all.
5
Employer gives acceptance notice
6
(2) If the employer gives the Secretary an acceptance notice for the
7
person in accordance with section 103 or a compliance notice
8
given under section 157, the employer determination comes into
9
force on the day the Secretary receives the acceptance notice.
10
Employer gives bank account and pay cycle information after
11
review of employer determination
12
(3)
If:
13
(a) the employer gives a notice to the Secretary in accordance
14
with section 105 (which deals with giving bank account and
15
pay cycle information etc. after a review) in relation to the
16
person; and
17
(b) the person's PPL period has not ended by the day the
18
Secretary receives the notice;
19
the employer determination comes into force on the day the
20
Secretary receives the notice.
21
(4) An employer determination stays in force unless it is revoked.
22
108 Revocation of an employer determination
23
When Secretary is required to revoke employer determination
24
(1) The Secretary must revoke an employer determination made for a
25
person and the person's employer if the Secretary is satisfied of a
26
matter referred to in column 1 of an item in the following table.
27
The revocation comes into force on the day referred to in column 2
28
of that item:
29
30
Chapter 3 Payment of parental leave pay
Part 3-5 Employer determinations
Division 3 When an employer determination is in force
Section 108
96 Paid Parental Leave Bill 2010 No. , 2010
Revocation of employer determination
Item Column
1
Matter of which Secretary must
be satisfied
Column 2
Day revocation comes into force
1
A condition for making the
employer determination was not
satisfied when the determination was
made.
The day of the revocation.
2
The employer has not given an
acceptance notice for the person as
required by a compliance notice
given for a contravention of
section 103.
The day of the revocation.
3
A decision is made that has the
effect that parental leave pay is not
payable to the person (whether or
not the decision is a payability
determination to that effect).
The day of the decision.
4
The person has ceased to be
employed by the employer.
The day the person ceased to be
employed by the employer.
5
The employer is insolvent.
The day the employer became
insolvent.
6
The Fair Work Ombudsman has
notified the Secretary that the
employer has not complied with a
compliance notice given for a
contravention of section 70, 72 or 74
(which deal with unauthorised
deductions and payment of
instalments by an employer) that
relates to the person.
The day of the revocation.
1
When Secretary may revoke employer determination
2
(2) The Secretary may revoke an employer determination made for a
3
person and the person's employer if the Secretary is satisfied of
4
any of the following:
5
(a) the employer is not a fit and proper person;
6
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
When an employer determination is in force Division 3
Section 108
Paid Parental Leave Bill 2010 No. , 2010 97
(b) the child in relation to whom parental leave pay is payable to
1
the person is stillborn or has died;
2
(c) for any other reason, it is appropriate to revoke the employer
3
determination.
4
(3) In determining whether the employer is not a fit and proper person
5
for the purposes of paragraph (2)(a), the Secretary may take into
6
account the matters referred to in paragraphs 101(5)(a) to (f).
7
(4) If the Secretary revokes the employer determination under
8
subsection (2), the revocation comes into force on the day of the
9
revocation.
10
Notice of revocation to person and employer
11
(5) If the Secretary revokes an employer determination for a person
12
and the person's employer, the Secretary must give them a written
13
notice advising them of that decision. The notice must contain any
14
information prescribed by the PPL rules.
15
Notice of revocation to SSAT
16
(6) If, when the Secretary revokes an employer determination:
17
(a) an application has been made to the SSAT for review in
18
relation to the employer determination; and
19
(b) the SSAT has not determined the review;
20
the Secretary must give the Principal Member written notice of the
21
revocation.
22
23
Chapter 3 Payment of parental leave pay
Part 3-5 Employer determinations
Division 4 Election by employer to pay instalments
Section 109
98 Paid Parental Leave Bill 2010 No. , 2010
Division 4--Election by employer to pay instalments
1
109 Election by employer to pay instalments
2
(1) An employer may elect to pay instalments to one or more
3
employees of the employer by giving the Secretary a notice in
4
accordance with subsections (2) and (3).
5
Requirements for elections
6
(2) The notice must:
7
(a) be in the approved form; and
8
(b) contain the employer's bank account information.
9
(3) An election under subsection (1) must be expressed to apply in
10
relation to:
11
(a) one or more specified employees of the employer; or
12
(b) one or more specified classes of employee of the employer;
13
or
14
(c) all employees of the employer.
15
110 Employer may withdraw an election
16
(1) The employer may, at any time, withdraw an election by notice
17
given to the Secretary in the form approved by the Secretary.
18
(2) However, a withdrawal does not affect an employer determination
19
that has already been made.
20
111 Secretary may cancel an election
21
(1) The Secretary may cancel an election if the Secretary is satisfied
22
that the employer is not a fit and proper person, and for this
23
purpose may take into account the matters referred to in paragraphs
24
101(5)(a) to (f).
25
(2) However, a cancellation does not affect an employer determination
26
that has already been made.
27
Note:
The Secretary may revoke an employer determination that has already
28
been made for the employer and a person under subsection 108(2).
29
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
Election by employer to pay instalments Division 4
Section 112
Paid Parental Leave Bill 2010 No. , 2010 99
(3) If the Secretary cancels an election, the Secretary must give the
1
employer a written notice advising the employer of that decision.
2
The notice must contain any information prescribed by the PPL
3
rules.
4
112 When an election is in force
5
An election remains in force from the time it is received by the
6
Secretary until one of the following occurs:
7
(a) if paragraph 109(3)(a) applies--the PPL period for each
8
specified employee ends;
9
(b) the Secretary receives notice under section 110 that the
10
election has been withdrawn;
11
(c) the election is cancelled under section 111.
12
13
Chapter 3 Payment of parental leave pay
Part 3-5 Employer determinations
Division 5 Notice of decisions
Section 113
100 Paid Parental Leave Bill 2010 No. , 2010
Division 5--Notice of decisions
1
113 Notice of outcome of a payability determination
2
(1) This section applies if:
3
(a) the Secretary has made an employer determination for a
4
person and the person's employer; and
5
(b) after the employer determination was made, the Secretary
6
makes a payability determination.
7
(2) The Secretary must give the employer a written notice stating:
8
(a) whether parental leave pay is payable to the person; and
9
(b) if parental leave pay is payable--the person's PPL period;
10
and
11
(c) in any case--any information prescribed by the PPL rules.
12
Note:
If the Secretary determines that parental leave pay is not payable to
13
the person, the Secretary must revoke the employer determination (see
14
subsection 108(1)).
15
(3) However, the Secretary need not give the notice if the Secretary
16
had previously revoked the employer determination.
17
114 Notice of varying, setting aside etc. payability determination
18
(1) This section applies if:
19
(a) the Secretary has made an employer determination for a
20
person and the person's employer; and
21
(b) a decision is made to vary, set aside or revoke a payability
22
determination (the original payability determination) that
23
parental leave pay is payable to the person.
24
(2) The Secretary must give the employer a written notice stating:
25
(a) the effect of the decision referred to in paragraph (1)(b); and
26
(b) if the effect of the decision is that the person has a different
27
PPL period to that specified in the original payability
28
determination--that different PPL period; and
29
(c) in any case--any other information prescribed by the PPL
30
rules.
31
Payment of parental leave pay Chapter 3
Employer determinations Part 3-5
Notice of decisions Division 5
Section 115
Paid Parental Leave Bill 2010 No. , 2010 101
(3) However, the Secretary need not give the notice if the Secretary
1
had previously revoked the employer determination.
2
115 Notice of other decisions
3
The PPL rules may provide for the Secretary, in particular
4
circumstances, to give a person a notice containing the information
5
prescribed by the PPL rules in relation to those circumstances, if
6
this Chapter does not otherwise provide for the Secretary to give
7
the person a notice in those circumstances.
8
9
Chapter 4 Compliance and enforcement
Part 4-1 Information gathering
Division 1 Guide to this Part
Section 116
102 Paid Parental Leave Bill 2010 No. , 2010
Chapter 4--Compliance and enforcement
1
Part 4-1--Information gathering
2
Division 1--Guide to this Part
3
116 Guide to this Part
4
This Part allows the Secretary to gather information for the
5
purposes of checking compliance with this Act.
6
Subdivision A of Division 2 allows the Secretary to require a
7
person to give certain information or produce certain documents
8
that are relevant to this Act.
9
Subdivision B of Division 2 deals with tax file numbers and the
10
purposes for which tax file numbers may be used.
11
Subdivision C of Division 2 imposes an obligation on a person to
12
whom instalments of parental leave pay are payable to notify the
13
Secretary of a change of circumstances.
14
Division 3 deals with the confidentiality of personal and protected
15
information.
16
Division 4 contains rules relating to offences against Parts 7.3 and
17
7.4 of the Criminal Code (which deal with fraudulent conduct and
18
false and misleading statements) in relation to this Act.
19
20
Compliance and enforcement Chapter 4
Information gathering Part 4-1
Information gathering Division 2
Section 117
Paid Parental Leave Bill 2010 No. , 2010 103
Division 2--Information gathering
1
Subdivision A--Gathering information from any person
2
117 General power to obtain information
3
The Secretary may require a person to give information, or produce
4
a document that is in the person's custody or under the person's
5
control, to a specified agency if the Secretary considers that the
6
information or document may be relevant to one or more of the
7
following:
8
(a) determining whether a person who has made an effective
9
claim for parental leave pay is or was eligible for parental
10
leave pay, or is or was initially eligible for parental leave
11
pay;
12
(b) determining whether parental leave pay is or was payable to a
13
person;
14
(c) determining who should pay instalments of parental leave
15
pay to a person;
16
(d) ensuring the Secretary can pay instalments of parental leave
17
pay into the bank account of a person to whom instalments of
18
parental leave pay are payable;
19
(e) determining whether to make an employer determination, or
20
whether an employer determination should have been made;
21
(f) determining whether PPL funding amounts are or were
22
payable to a person;
23
(g) ensuring that an employer complies or has complied with its
24
obligations under this Act.
25
Note:
The agency specified must be a PPL agency (see subsection 120(4)).
26
118 Power to obtain information from a person who owes a debt to
27
the Commonwealth
28
The Secretary may require a person who owes a debt to the
29
Commonwealth under or because of this Act:
30
(a)
either
to:
31
(i) give to a specified agency information that is relevant to
32
the person's financial situation; or
33
Chapter 4 Compliance and enforcement
Part 4-1 Information gathering
Division 2 Information gathering
Section 119
104 Paid Parental Leave Bill 2010 No. , 2010
(ii) produce to a specified agency a document that is in the
1
person's custody or under the person's control and is
2
relevant to the person's financial situation; and
3
(b) if the person's address changes--to inform the specified
4
agency of the new address within 14 days after the change.
5
Note:
The agency specified must be a PPL agency (see subsection 120(4)).
6
119 Obtaining information about a person who owes a debt to the
7
Commonwealth
8
If the Secretary believes that a person may have information or a
9
document:
10
(a) that would help a specified agency locate another person (the
11
debtor) who owes a debt to the Commonwealth under or
12
because of this Act; or
13
(b) that is relevant to the debtor's financial situation;
14
the Secretary may require the person to give the information, or
15
produce the document, to the specified agency.
16
Note:
The agency specified must be a PPL agency (see subsection 120(4)).
17
120 Written notice of requirement
18
Notice to be in writing
19
(1) A requirement under this Subdivision must be made by written
20
notice given to the person of whom the requirement is made.
21
Contents of notice
22
(2)
The
notice:
23
(a) may be given personally or by post or in any other manner
24
approved by the Secretary; and
25
(b)
must
specify:
26
(i) how the person is to give the information or produce the
27
document to which the requirement relates; and
28
(ii) the period within which the person is to give the
29
information or produce the document; and
30
Compliance and enforcement Chapter 4
Information gathering Part 4-1
Information gathering Division 2
Section 121
Paid Parental Leave Bill 2010 No. , 2010 105
(iii) the agency, and the officer (if any), to whom the
1
information is to be given or the document is to be
2
produced; and
3
(iv) that the notice is given under this section.
4
(3) The period specified under subparagraph (2)(b)(ii) must not end
5
earlier than 14 days after the day the notice is given.
6
(4) For the purposes of subparagraph (2)(b)(iii), the Secretary must
7
specify a PPL agency.
8
Requirement to attend interview
9
(5) The notice may require the person to give the information by
10
appearing before a specified officer to answer questions.
11
(6) If the notice requires the person to appear before an officer, the
12
notice must specify a time and place at which the person is to
13
appear. The time must be at least 14 days after the day the notice is
14
given.
15
121 Obligations not affected by State or Territory laws
16
Nothing contained in a law of a State or a Territory operates to
17
prevent a person from:
18
(a) giving information; or
19
(b) producing a document; or
20
(c)
giving
evidence;
21
that the person is required to give or produce to a specified agency
22
or an officer for the purposes of this Act.
23
122 Offence--failure to comply with requirement
24
(1) A person commits an offence if:
25
(a) the person is required under this Subdivision (other than
26
under paragraph 117(d) (which deals with information about
27
bank accounts)) to give information or produce a document;
28
and
29
(b) the person refuses or fails to comply with the requirement.
30
Chapter 4 Compliance and enforcement
Part 4-1 Information gathering
Division 2 Information gathering
Section 123
106 Paid Parental Leave Bill 2010 No. , 2010
Penalty: Imprisonment for 6 months.
1
(2) Subsection (1) does not apply if the person has a reasonable
2
excuse.
3
Note:
A defendant bears an evidential burden in relation to the matter in
4
subsection (2) (see subsection 13.3(3) of the Criminal Code).
5
Subdivision B--Gathering information relating to tax file
6
numbers
7
123 Secretary may require Commissioner of Taxation to provide tax
8
file numbers etc.
9
The Secretary may require the Commissioner of Taxation to
10
provide the Secretary with information (including a tax file
11
number) that is:
12
(a) about a person who has made an effective claim for parental
13
leave pay; and
14
(b) relevant to the claim; and
15
(c) contained in a TFN declaration lodged with the
16
Commissioner under Division 3 of Part VA of the Income
17
Tax Assessment Act 1936.
18
124 Purposes for which tax file numbers may be used
19
(1) Subsection (2) applies to the tax file number of a person that is
20
provided to the Secretary:
21
(a) under a provision of this Act, for the purposes of this Act:
22
(i) by the person; or
23
(ii) by the partner of the person; or
24
(iii) by the Commissioner of Taxation on the authority of the
25
person; or
26
(b) by the Commissioner of Taxation under section 123.
27
(2) A tax file number provided to the Secretary as referred to in
28
subsection (1) may be used only for the following purposes:
29
(a) to detect cases in which instalments of parental leave pay
30
have been paid when they should not have been paid;
31
Compliance and enforcement Chapter 4
Information gathering Part 4-1
Information gathering Division 2
Section 125
Paid Parental Leave Bill 2010 No. , 2010 107
(b) to verify, in relation to persons who have made effective
1
claims for parental leave pay, the eligibility of those persons
2
for that pay.
3
Subdivision C--Obligation to notify of change of circumstances
4
125 Obligation to notify of change of circumstances
5
(1) This section requires a person to notify the Secretary of certain
6
things if:
7
(a) the person makes an effective claim for parental leave pay;
8
and
9
(b) the Secretary does not make a payability determination that
10
parental leave pay is not payable to the person.
11
(2) The person must notify the Secretary of the following things:
12
(a) anything that causes the person to cease to be eligible for
13
parental leave pay on a day;
14
(b) anything that is likely to have the effect described in
15
paragraph (a).
16
(3) The person must notify the Secretary, in the manner set out in a
17
written notice given to the person under subsection (5), as soon as
18
practicable after the person becomes aware that the thing has
19
happened or is likely to happen.
20
(4) The Secretary must approve a manner of notification that a person
21
must use when notifying the Secretary of a thing under this section.
22
(5) The Secretary must, by written notice, notify the person of the
23
approved manner of notification.
24
(6) A person commits an offence if:
25
(a) the person is required to notify the Secretary of a thing under
26
this section; and
27
(b) the person refuses or fails to comply with the requirement.
28
Penalty for contravention of this subsection: Imprisonment for 6
29
months.
30
31
Chapter 4 Compliance and enforcement
Part 4-1 Information gathering
Division 3 Confidentiality
Section 126
108 Paid Parental Leave Bill 2010 No. , 2010
Division 3--Confidentiality
1
126 Operation of Division
2
(1) Nothing in this Division prevents a person from disclosing
3
information to another person if the information is disclosed for the
4
purposes of:
5
(a)
the
Child Support (Assessment) Act 1989; or
6
(b)
the
Child Support (Registration and Collection) Act 1988.
7
(2) The provisions of this Division that relate to the disclosure of
8
information do not affect the operation of the Freedom of
9
Information Act 1982.
10
127 Obtaining and using protected information
11
Obtaining protected information
12
(1) A person may obtain protected information if the information is
13
obtained for the purposes of this Act.
14
Using protected information
15
(2) A person may:
16
(a) make a record of protected information; or
17
(b) disclose such information to any person; or
18
(c) otherwise use such information;
19
if the record, disclosure or use of the information by the person is
20
made:
21
(d) for the purposes of this Act; or
22
(e) for the purposes for which the information was disclosed to
23
the person under section 128; or
24
(f) with the express or implied authorisation of the person to
25
whom the information relates.
26
128 Disclosing personal information
27
(1) Despite sections 129 to 132, the Secretary may disclose
28
information acquired by an officer in the exercise of the officer's
29
Compliance and enforcement Chapter 4
Information gathering Part 4-1
Confidentiality Division 3
Section 128
Paid Parental Leave Bill 2010 No. , 2010 109
powers, or the performance of the officer's duties or functions,
1
under this Act:
2
(a) to such persons and for such purposes as the Secretary
3
determines, if the Secretary certifies that it is necessary in the
4
public interest to do so in a particular case or class of cases;
5
or
6
(b) to an Agency Head for the purposes of that Agency (within
7
the meaning of the Public Service Act 1999), but only if the
8
disclosure of the information is required by a law of the
9
Commonwealth; or
10
(c) to a person who is expressly or impliedly authorised by the
11
person to whom the information relates to obtain it; or
12
(d) to the Minister for the purposes of assisting the Minister to
13
consider a complaint or issue in relation to a matter arising
14
under this Act if the Secretary reasonably believes that the
15
disclosure is likely to assist the Minister; or
16
(e) to an SES employee, or an APS employee, in the
17
Department, for the purposes of briefing, or considering
18
briefing, the Minister if the Secretary reasonably believes the
19
disclosure is likely to assist the Minister to consider a
20
complaint or issue in relation to a matter arising under this
21
Act.
22
Note:
Information disclosed under this section must also be dealt with in
23
accordance with section 14 of the Privacy Act 1988.
24
(2) In giving certificates for the purposes of paragraph (1)(a), the
25
Secretary must act in accordance with guidelines (if any) from time
26
to time in force under subsection (4).
27
(3) In disclosing information under paragraph (1)(b), the Secretary
28
must act in accordance with guidelines (if any) from time to time in
29
force under subsection (4).
30
(4) The Minister may, in the PPL rules, make guidelines for the
31
exercise of either or both of the following:
32
(a) the Secretary's power to give certificates for the purposes of
33
paragraph (1)(a);
34
(b) the Secretary's power under paragraph (1)(b).
35
Chapter 4 Compliance and enforcement
Part 4-1 Information gathering
Division 3 Confidentiality
Section 129
110 Paid Parental Leave Bill 2010 No. , 2010
(5) If a determination or certificate under paragraph (1)(a) is made or
1
given in writing, the determination or certificate is not a legislative
2
instrument.
3
(6) Despite any other provision of this Part, the Secretary may disclose
4
information of a kind referred to in paragraph (a) or (b) of the
5
definition of protected information in section 6 that relates to a
6
principal to the principal's payment nominee or correspondence
7
nominee.
8
129 Offence--unauthorised access to protected information
9
A person commits an offence if:
10
(a) the person obtains information; and
11
(b) the person is not authorised under this Act to obtain the
12
information; and
13
(c) the information is protected information.
14
Penalty: Imprisonment for 2 years.
15
130 Offence--unauthorised use of protected information
16
A person commits an offence if:
17
(a)
the
person:
18
(i) makes a record of information; or
19
(ii) discloses information to any other person; or
20
(iii) otherwise makes use of information; and
21
(b) the person is not authorised or required under this Act to
22
make that record, disclosure or use of the information; and
23
(c) the information is protected information.
24
Penalty: Imprisonment for 2 years.
25
131 Offence--soliciting disclosure of protected information
26
(1) A person commits an offence if:
27
(a) the person solicits the disclosure of protected information
28
from an officer or another person; and
29
Compliance and enforcement Chapter 4
Information gathering Part 4-1
Confidentiality Division 3
Section 132
Paid Parental Leave Bill 2010 No. , 2010 111
(b) the disclosure would be in contravention of this Subdivision;
1
and
2
(c) the information is protected information.
3
Penalty: Imprisonment for 2 years.
4
(2) A person may commit an offence under subsection (1) whether or
5
not any protected information is actually disclosed.
6
132 Offence--offering to supply protected information
7
(1) A person commits an offence if:
8
(a) the person offers to supply (whether to a particular person or
9
otherwise) information about another person; and
10
(b) the information is protected information.
11
Penalty: Imprisonment for 2 years.
12
(2) A person commits an offence if:
13
(a) the person holds himself or herself out as being able to
14
supply (whether to a particular person or otherwise)
15
information about another person; and
16
(b) the information is protected information.
17
Penalty: Imprisonment for 2 years.
18
(3) Nothing in subsection (1) or (2) makes an officer acting in the
19
performance or exercise of his or her powers, duties or functions
20
under this Act guilty of an offence.
21
22
Chapter 4 Compliance and enforcement
Part 4-1 Information gathering
Division 4 Offences against Parts 7.3 and 7.4 of the Criminal Code
Section 133
112 Paid Parental Leave Bill 2010 No. , 2010
Division 4--Offences against Parts 7.3 and 7.4 of the
1
Criminal Code
2
133 Repayment of instalment of parental leave pay or PPL funding
3
amount
4
(1) If a person is convicted of an offence against Part 7.3 or 7.4 of the
5
Criminal Code in relation to this Act, the court may:
6
(a) impose a penalty in relation to the offence; and
7
(b) order the person to pay the Commonwealth an amount equal
8
to any amount:
9
(i) paid to, or in relation to, the person by way of an
10
instalment of parental leave pay because of the act,
11
failure or omission that constituted the offence; or
12
(ii) paid to the person by way of a PPL funding amount
13
because of the act, failure or omission that constituted
14
the offence.
15
Note:
The Secretary and a court may give a certificate in relation to the
16
amount referred to in paragraph (1)(b) (see sections 138 and 139).
17
(2) Despite anything in this Act or any other law, a person is not to be
18
imprisoned for failing to pay an amount payable to the
19
Commonwealth under paragraph (1)(b).
20
134 Penalty where person convicted of more than one offence
21
(1) If a person is convicted of more than one offence against Part 7.3
22
or 7.4 of the Criminal Code in relation to this Act, the court may, if
23
it considers it appropriate, impose one penalty for all the offences.
24
(2) However, a single penalty imposed under subsection (1) must not
25
be more than the sum of the maximum penalties that could be
26
imposed if a separate penalty were imposed for each offence.
27
135 Joining of charges
28
Charges against the same person for a number of offences against
29
Part 7.3 or 7.4 of the Criminal Code in relation to this Act may be
30
Compliance and enforcement Chapter 4
Information gathering Part 4-1
Offences against Parts 7.3 and 7.4 of the Criminal Code Division 4
Section 136
Paid Parental Leave Bill 2010 No. , 2010 113
joined in one complaint, information or declaration if those
1
charges:
2
(a) are founded on the same facts; or
3
(b) form a series of offences of the same or a similar character;
4
or
5
(c) are part of a series of offences of the same or a similar
6
character.
7
136 Particulars of each offence
8
If 2 or more charges are included in the same complaint,
9
information or declaration, particulars of each offence charged are
10
to be set out in a separate paragraph.
11
137 Trial of joined charges
12
If charges are joined, the charges are to be tried together unless:
13
(a) the court considers it just that any charge should be tried
14
separately; and
15
(b) the court makes an order to that effect.
16
138 Evidentiary effect of Secretary's certificate
17
(1) For the purposes of paragraph 133(1)(b), a certificate signed by the
18
Secretary is evidence of the matters specified in the certificate.
19
(2) The certificate may specify:
20
(a) the person to whom an instalment of parental leave pay or a
21
PPL funding amount has been paid because of an act, a
22
failure or an omission for which the person or another person
23
has been convicted of an offence against Part 7.3 or 7.4 of the
24
Criminal Code; and
25
(b) the amount paid; and
26
(c) the act, failure or omission that caused the amount to be paid.
27
139 Enforcement of court certificate as judgment
28
If:
29
(a) a court makes an order under paragraph 133(1)(b); and
30
Chapter 4 Compliance and enforcement
Part 4-1 Information gathering
Division 4 Offences against Parts 7.3 and 7.4 of the Criminal Code
Section 139
114 Paid Parental Leave Bill 2010 No. , 2010
(b) the clerk or other appropriate officer of the court gives a
1
certificate specifying:
2
(i) the amount ordered to be paid to the Commonwealth;
3
and
4
(ii) the person by whom the amount is to be paid; and
5
(c) the certificate is filed in a court (which may be the court that
6
made the order) that has civil jurisdiction to the extent of the
7
amount to be paid;
8
the certificate is enforceable in all respects as a final judgment of
9
the court in which the certificate is filed.
10
11
Compliance and enforcement Chapter 4
Compliance Part 4-2
Guide to this Part Division 1
Section 140
Paid Parental Leave Bill 2010 No. , 2010 115
Part 4-2--Compliance
1
Division 1--Guide to this Part
2
140 Guide to this Part
3
This Part deals with compliance with this Act.
4
Division 2 allows the Secretary to refer matters to the Fair Work
5
Ombudsman for investigation if the Secretary has reason to believe
6
that an employer has not complied with certain obligations under
7
this Act.
8
Division 3 deals with civil penalty provisions. These provisions
9
impose obligations on certain persons. Civil penalty orders may be
10
sought in relation to contraventions of civil penalty provisions.
11
Division 4 deals with compliance notices. A compliance notice can
12
be given to a person who has contravened a civil penalty provision,
13
requiring the person to rectify the contravention.
14
Division 5 deals with infringement notices. A person who is given
15
an infringement notice can choose to pay a penalty. If the penalty
16
is not paid, a civil penalty order may be sought in relation to the
17
person.
18
19
Chapter 4 Compliance and enforcement
Part 4-2 Compliance
Division 2 Referring matters to the Fair Work Ombudsman
Section 141
116 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Referring matters to the Fair Work
1
Ombudsman
2
141 Functions of the Fair Work Ombudsman
3
The Fair Work Ombudsman has the following functions:
4
(a) to inquire into, and investigate, any matter referred to the Fair
5
Work Ombudsman under section 143;
6
(b) to commence proceedings in a court in relation to a
7
contravention of section 70 (which deals with unauthorised
8
deductions from instalments) or Part 3-2 (which deals with
9
payment of instalments by an employer);
10
(c) any other function that is incidental to the function referred to
11
in paragraph (a) or (b).
12
142 Exercise of compliance powers
13
(1) A Fair Work Inspector may exercise compliance powers (within
14
the meaning of the Fair Work Act) (other than a power under
15
section 715 or 716 of that Act) for the purpose of determining
16
whether the following provisions of this Act are being, or have
17
been, complied with:
18
(a) section 70 (which deals with unauthorised deductions from
19
instalments);
20
(b) Part 3-2 (which deals with payment of instalments by an
21
employer).
22
(2) For the purposes of the Fair Work Act:
23
(a) the purpose referred to in subsection (1) of this section is
24
taken to be a compliance purpose; and
25
(b) a civil penalty provision under section 70 (which deals with
26
unauthorised deductions from instalments) or Part 3-2 of this
27
Act (which deals with payment of instalments by an
28
employer) is taken to be a civil remedy provision.
29
143 Referring matters to the Fair Work Ombudsman
30
(1) The Secretary may refer a matter to the Fair Work Ombudsman for
31
investigation if:
32
Compliance and enforcement Chapter 4
Compliance Part 4-2
Referring matters to the Fair Work Ombudsman Division 2
Section 144
Paid Parental Leave Bill 2010 No. , 2010 117
(a) the Secretary has reason to believe that an employer has not
1
complied with an obligation under section 70 (which deals
2
with unauthorised deductions from instalments) or Part 3-2
3
(which deals with payment of instalments by an employer) in
4
relation to a person; and
5
(b) the Secretary does not believe that the employer and the
6
person are able to resolve the matter themselves.
7
(2) The Secretary must inform the employer and the person, in writing,
8
if the Secretary refers the matter to the Fair Work Ombudsman.
9
(3) The Secretary must give the Fair Work Ombudsman the following
10
information:
11
(a) if the contravention is in relation to section 70, 72 or 74:
12
(i) the day on which the Secretary paid a PPL funding
13
amount to the employer for the person; and
14
(ii) a copy of the notice given to the employer under
15
section 77 in relation to the PPL funding amount;
16
(b) in any case--any action taken or information obtained by the
17
Secretary in relation to the matter.
18
144 Fair Work Ombudsman to notify of outcome of investigation
19
The Fair Work Ombudsman must, as soon as practicable after
20
completing an investigation referred by the Secretary under
21
section 143, notify the Secretary, in writing, of the outcome of the
22
investigation.
23
Note:
If the Fair Work Ombudsman gives a compliance notice, the Fair
24
Work Ombudsman must also notify the Secretary of the outcome of
25
the compliance notice (see section 158).
26
27
Chapter 4 Compliance and enforcement
Part 4-2 Compliance
Division 3 Civil penalty orders
Section 145
118 Paid Parental Leave Bill 2010 No. , 2010
Division 3--Civil penalty orders
1
145 Involvement in contravention treated in same way as actual
2
contravention
3
(1) A person who is involved in a contravention of a civil penalty
4
provision is taken to have contravened that provision.
5
(2) A person is involved in a contravention of a civil penalty provision
6
if, and only if, the person:
7
(a) has aided, abetted, counselled or procured the contravention;
8
or
9
(b) has induced the contravention, whether by threats or
10
promises or otherwise; or
11
(c) has been in any way, by act or omission, directly or
12
indirectly, knowingly concerned in or party to the
13
contravention; or
14
(d) has conspired with others to effect the contravention.
15
146 Civil penalty provisions
16
A provision referred to in column 1 of an item in the table is a civil
17
penalty provision.
18
19
Civil penalty provisions
Item Column
1
Civil penalty provision
Column 2
Maximum penalty
1 Subsection
70(2)
60
penalty
units
2 Subsection
72(1)
60
penalty
units
3 Subsection
72(2)
60
penalty
units
4 Subsection
72(3)
60
penalty
units
5
Section 74
60 penalty units
6
Section 80
30 penalty units
7 Subsection
81(1)
30
penalty
units
8 Subsection
81(2)
30
penalty
units
9 Subsection
82(2)
60
penalty
units
Compliance and enforcement Chapter 4
Compliance Part 4-2
Civil penalty orders Division 3
Section 147
Paid Parental Leave Bill 2010 No. , 2010 119
Civil penalty provisions
Item Column
1
Civil penalty provision
Column 2
Maximum penalty
10
Section 103
60 penalty units
11 Subsection
105(3)
60
penalty
units
12
Subsection 157(4) (in relation to a
contravention of a compliance
notice given in relation to a
contravention of section 80 or
subsection 81(1) or (2))
30 penalty units
13
Subsection 157(4) (in relation to a
contravention of a compliance
notice given in relation to any other
civil penalty provision)
60 penalty units
1
147 Civil penalty orders
2
(1) If the Federal Court or the Federal Magistrates Court is satisfied
3
that a person has contravened one or more civil penalty provisions,
4
the court may, on the application of the Secretary or the Fair Work
5
Ombudsman, order the person to pay to the Commonwealth such
6
pecuniary penalty, in relation to each contravention, as the court
7
determines to be appropriate.
8
Note:
Subsection (3) sets out the maximum penalty that the court may order
9
the person to pay.
10
(2) An order under subsection (1) is a civil penalty order.
11
Determining pecuniary penalty
12
(3) The pecuniary penalty must not be more than:
13
(a) if the person is a body corporate--5 times the maximum
14
number of penalty units referred to in the relevant item in
15
column 2 of the table in section 146; and
16
(b) otherwise--the maximum number of penalty units referred to
17
in the relevant item in column 2 of the table in section 146.
18
Chapter 4 Compliance and enforcement
Part 4-2 Compliance
Division 3 Civil penalty orders
Section 148
120 Paid Parental Leave Bill 2010 No. , 2010
(4) In determining the pecuniary penalty, the court must take into
1
account all relevant matters, including:
2
(a) the nature and extent of the contravention; and
3
(b) the nature and extent of any loss or damage suffered because
4
of the contravention; and
5
(c) the circumstances in which the contravention took place; and
6
(d) whether the person has previously been found by a court in
7
proceedings under this Act to have engaged in any similar
8
conduct; and
9
(e) the likely impact of the penalty on the person.
10
Civil enforcement of penalty
11
(5) The pecuniary penalty is a civil debt payable to the
12
Commonwealth.
13
(6) The Commonwealth may enforce a civil penalty order as if it were
14
an order made in civil proceedings against the person to recover a
15
debt due by the person. The debt arising from the order is taken to
16
be a judgment debt.
17
148 Proceedings may be heard together
18
The Federal Court or the Federal Magistrates Court may direct that
19
2 or more proceedings for civil penalty orders are to be heard
20
together.
21
149 Time limit for application for an order
22
Proceedings for a civil penalty order may be commenced no later
23
than 4 years after the contravention.
24
150 Civil evidence and procedure rules for civil penalty orders
25
The Federal Court or the Federal Magistrates Court must apply the
26
rules of evidence and procedure for civil matters when hearing
27
proceedings for a civil penalty order.
28
Compliance and enforcement Chapter 4
Compliance Part 4-2
Civil penalty orders Division 3
Section 151
Paid Parental Leave Bill 2010 No. , 2010 121
151 Conduct contravening more than one civil penalty provision
1
(1) If conduct constitutes a contravention of 2 or more civil penalty
2
provisions, proceedings may be instituted under this Act against a
3
person in relation to the contravention of any one or more of those
4
provisions.
5
(2) However, the person is not liable to more than one pecuniary
6
penalty under this Act in relation to the same conduct.
7
152 Civil proceedings after criminal proceedings
8
Neither the Federal Court nor the Federal Magistrates Court may
9
make a civil penalty order against a person for a contravention of a
10
civil penalty provision if the person has been convicted of an
11
offence constituted by conduct that is substantially the same as the
12
conduct constituting the contravention.
13
153 Criminal proceedings during civil proceedings
14
(1) Proceedings for a civil penalty order against a person for a
15
contravention of a civil penalty provision are stayed if:
16
(a) criminal proceedings are commenced or have already been
17
commenced against the person for an offence; and
18
(b) the offence is constituted by conduct that is the same, or
19
substantially the same, as the conduct alleged to constitute
20
the contravention.
21
(2) The proceedings for the order (the civil proceedings) may be
22
resumed if the person is not convicted of the offence. Otherwise:
23
(a) the civil proceedings are dismissed; and
24
(b) costs must not be awarded in relation to the civil proceedings.
25
154 Criminal proceedings after civil proceedings
26
Criminal proceedings may be commenced against a person for
27
conduct that is substantially the same as conduct constituting a
28
contravention of a civil penalty provision regardless of whether a
29
civil penalty order has been made against the person.
30
Chapter 4 Compliance and enforcement
Part 4-2 Compliance
Division 3 Civil penalty orders
Section 155
122 Paid Parental Leave Bill 2010 No. , 2010
155 Evidence given in proceedings for penalty not admissible in
1
criminal proceedings
2
(1) Evidence of information given or evidence of production of
3
documents by a natural person is not admissible in criminal
4
proceedings against the person if:
5
(a) the person previously gave the evidence or produced the
6
documents in proceedings for a civil penalty order against the
7
person for a contravention of a civil penalty provision
8
(whether or not the order was made); and
9
(b) the conduct alleged to constitute the offence is the same, or
10
substantially the same, as the conduct alleged to constitute
11
the contravention.
12
(2) However, subsection (1) does not apply to criminal proceedings in
13
relation to the falsity of the evidence given by the person in the
14
proceedings for the civil penalty order.
15
156 Requirement for person to assist in applications for civil penalty
16
orders
17
(1) A person commits an offence if:
18
(a) the Secretary requests, in writing, the person to give all
19
reasonable assistance in connection with an application for a
20
civil penalty order; and
21
(b) the person fails to comply with the request.
22
Penalty: 10 penalty units.
23
Note:
This section does not abrogate or affect the law relating to legal
24
professional privilege, or any other immunity, privilege or restriction
25
that applies to the disclosure of information, documents or other
26
things.
27
(2) A request under subsection (1) is not a legislative instrument.
28
(3) The Secretary can request a person to assist under subsection (1)
29
only if:
30
(a) it appears to the Secretary that the person is unlikely to have:
31
(i) contravened the civil penalty provision to which the
32
application relates; or
33
Compliance and enforcement Chapter 4
Compliance Part 4-2
Civil penalty orders Division 3
Section 156
Paid Parental Leave Bill 2010 No. , 2010 123
(ii) committed an offence constituted by the same, or
1
substantially the same, conduct as the conduct to which
2
the application relates; and
3
(b) the Secretary suspects or believes that the person can give
4
information relevant to the application.
5
(4) The Secretary cannot request a person to assist under
6
subsection (1) if the person is or has been a lawyer for the person
7
suspected of contravening the civil penalty provision to which the
8
application relates.
9
(5) The Federal Court or the Federal Magistrates Court may order a
10
person to comply with a request under subsection (1) in a specified
11
way. Only the Secretary may apply to the court for an order under
12
this subsection.
13
(6) For the purposes of this section, it does not matter whether the
14
application for the civil penalty order has actually been made.
15
16
Chapter 4 Compliance and enforcement
Part 4-2 Compliance
Division 4 Compliance notices
Section 157
124 Paid Parental Leave Bill 2010 No. , 2010
Division 4--Compliance notices
1
157 Giving a compliance notice
2
Compliance notice given by Secretary
3
(1) This section applies if the Secretary reasonably believes that a
4
person has contravened one or more of the following provisions:
5
(a) subsection 82(2) (which deals with notifying the Secretary if
6
certain events happen);
7
(b) section 103 (which deals with responding to an employer
8
determination);
9
(c) subsection 105(3) (which deals with giving bank account and
10
pay cycle information etc. after a review).
11
Compliance notice given by Fair Work Ombudsman
12
(2) This section also applies if the Fair Work Ombudsman reasonably
13
believes that a person has contravened one or more of the
14
following provisions:
15
(a) subsection 70(2) (which deals with unauthorised deductions
16
from instalments);
17
(b) subsection 72(1), (2) or (3) (which deals with when an
18
employer pays instalments);
19
(c) section 74 (which deals with the method of payment of
20
instalments payable by an employer);
21
(d) section 80 (which deals with giving a person a record of
22
payment);
23
(e) subsection 81(1) or (2) (which deals with keeping records).
24
Requirements of a compliance notice
25
(3) The Secretary or the Fair Work Ombudsman may give the person a
26
notice (a compliance notice) requiring the person to do the
27
following within 14 days of the day on which the notice is given:
28
(a) take the action set out in the notice to rectify the
29
contravention;
30
(b) produce reasonable evidence of the person's compliance with
31
the notice.
32
Compliance and enforcement Chapter 4
Compliance Part 4-2
Compliance notices Division 4
Section 158
Paid Parental Leave Bill 2010 No. , 2010 125
(4) A person must not fail to comply with a compliance notice.
1
Note:
This subsection is a civil penalty provision (see section 146).
2
Contents of a compliance notice
3
(5) A compliance notice must also:
4
(a) set out the name of the person to whom the notice is given;
5
and
6
(b) set out the name of the person who gave the notice; and
7
(c) set out brief details of the alleged contravention; and
8
(d) explain that a failure to comply with the notice may
9
contravene a civil penalty provision; and
10
(e) set out any other matters prescribed by the PPL rules.
11
158 Fair Work Ombudsman to notify of outcome of compliance
12
notice
13
If the Fair Work Ombudsman gives a compliance notice to a
14
person, the Fair Work Ombudsman must, as soon as practicable,
15
notify the Secretary, in writing, of the outcome of the compliance
16
notice.
17
18
Chapter 4 Compliance and enforcement
Part 4-2 Compliance
Division 5 Infringement notices
Section 159
126 Paid Parental Leave Bill 2010 No. , 2010
Division 5--Infringement notices
1
159 Giving an infringement notice
2
Infringement notice given by Secretary
3
(1) The Secretary may give a person a notice (an infringement notice)
4
if the Secretary reasonably believes that the person has
5
contravened one or more of the following provisions:
6
(a) subsection 82(2) (which deals with notifying the Secretary if
7
certain events happen);
8
(b) section 103 (which deals with responding to an employer
9
determination);
10
(c) subsection 105(3) (which deals with giving bank account and
11
pay cycle information etc. after a review);
12
(d) subsection 157(4), in relation to a compliance notice given to
13
the person by the Secretary.
14
Infringement notice given by Fair Work Ombudsman
15
(2) The Fair Work Ombudsman may give a person a notice (an
16
infringement notice) if the Fair Work Ombudsman reasonably
17
believes that the person has contravened one or more of the
18
following provisions:
19
(a) subsection 70(2) (which deals with unauthorised deductions
20
from instalments);
21
(b) subsection 72(1), (2) or (3) (which deals with when an
22
employer pays instalments);
23
(c) section 74 (which deals with the method of payment of
24
instalments payable by an employer);
25
(d) section 80 (which deals with giving a person a record of a
26
payment);
27
(e) subsection 81(1) or (2) (which deals with keeping records);
28
(f) subsection 157(4), in relation to a compliance notice given to
29
the person by the Fair Work Ombudsman.
30
When infringement notice must be given
31
(3) The infringement notice must be given within 12 months of:
32
Compliance and enforcement Chapter 4
Compliance Part 4-2
Infringement notices Division 5
Section 159
Paid Parental Leave Bill 2010 No. , 2010 127
(a)
if
paragraph
(1)(d) or (2)(f) applies--the day on which the 14
1
day period referred to in subsection 157(3) ends; and
2
(b) otherwise--the day on which the alleged contravention
3
occurred.
4
Contents of infringement notice
5
(4) An infringement notice must:
6
(a) set out the name of the person to whom the notice is given;
7
and
8
(b) set out the name of the person who gave the notice; and
9
(c) set out brief details of the contravention or alleged
10
contravention, including:
11
(i) the day referred to in paragraph (3)(a) or (b); and
12
(ii) the provision of this Act that was allegedly contravened;
13
and
14
(d) contain a statement to the effect that the matter or matters
15
will not be dealt with by the Federal Court or the Federal
16
Magistrates Court if the penalty specified in the notice is paid
17
to the Commonwealth, within:
18
(i) 28 days after the notice is given; or
19
(ii) if the Secretary allows a longer period--that longer
20
period; and
21
(e) give an explanation of how payment of the penalty is to be
22
made; and
23
(f) set out any other matters prescribed by the PPL rules.
24
Amount of penalties in infringement notices
25
(5) An infringement notice that is given to a body corporate must
26
specify a pecuniary penalty equal to:
27
(a) in relation to a contravention of section 80 (which deals with
28
giving a person a record of payments) or subsection 81(1) or
29
(2) (which deals with keeping records)--15 penalty units;
30
and
31
(b) in relation to a contravention of a compliance notice given in
32
relation to a contravention of section 80 or subsection 81(1)
33
or (2)--15 penalty units; and
34
Chapter 4 Compliance and enforcement
Part 4-2 Compliance
Division 5 Infringement notices
Section 160
128 Paid Parental Leave Bill 2010 No. , 2010
(c) otherwise--30 penalty units.
1
(6) An infringement notice that is given to a person other than a body
2
corporate must specify a pecuniary penalty equal to:
3
(a) in relation to a contravention of section 80 (which deals with
4
giving a person a record of payments) or subsection 81(1) or
5
(2) (which deals with keeping records)--3 penalty units; and
6
(b) in relation to a contravention of a compliance notice given in
7
relation to a contravention of section 80 or subsection 81(1)
8
or (2)--3 penalty units; and
9
(c) otherwise--6 penalty units.
10
160 Withdrawal of an infringement notice
11
(1) The Secretary may withdraw an infringement notice that has been
12
given to a person by the Secretary.
13
(2) The Fair Work Ombudsman may withdraw an infringement notice
14
that has been given to a person by the Fair Work Ombudsman.
15
(3) For a withdrawal to be effective, a written notice that withdraws
16
the infringement notice must be given to the person within 42 days
17
after the infringement notice was given to the person.
18
(4) Despite subsection (3), a withdrawal may be effective if it is given
19
to a person later than 42 days after an infringement notice is given
20
to the person if the person has applied to a court for judicial review
21
in relation to the making of an employer determination.
22
Refund of penalty if infringement notice withdrawn
23
(5) The Commonwealth is liable to refund the amount of the penalty
24
specified in an infringement notice if the infringement notice is
25
withdrawn after the penalty has been paid.
26
161 What happens if the penalty is paid
27
(1) Any liability of a person for an alleged civil penalty is discharged
28
if:
29
(a) an infringement notice is given to the person in relation to the
30
alleged civil penalty; and
31
Compliance and enforcement Chapter 4
Compliance Part 4-2
Infringement notices Division 5
Section 162
Paid Parental Leave Bill 2010 No. , 2010 129
(b) the penalty is paid in accordance with the infringement
1
notice; and
2
(c) the infringement notice is not withdrawn.
3
(2) In addition, proceedings under Division 3 must not be brought
4
against the person for the alleged civil penalty.
5
162 Effect of this Division on civil proceedings
6
This Division does not:
7
(a) require an infringement notice to be given in relation to an
8
alleged civil penalty; or
9
(b) affect the liability of a person to have proceedings under
10
Division 3 brought against the person for an alleged civil
11
penalty if:
12
(i) the person does not comply with an infringement notice
13
relating to the contravention; or
14
(ii) an infringement notice relating to the contravention is
15
not given to the person; or
16
(iii) an infringement notice relating to the contravention is
17
given to the person and later withdrawn; or
18
(c) limit the discretion of the Federal Court or the Federal
19
Magistrates Court to determine the amount of a penalty to be
20
imposed on a person who is found in proceedings under
21
Division 3 to have contravened a civil penalty provision.
22
163 Further provision in relation to infringement notices
23
The Minister may further provide in relation to infringement
24
notices in the PPL rules.
25
26
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 1 Guide to this Part
Section 164
130 Paid Parental Leave Bill 2010 No. , 2010
Part 4-3--Debt recovery
1
Division 1--Guide to this Part
2
164 Guide to this Part
3
This Part provides for debts in relation to the parental leave pay
4
scheme, and for the recovery of debts owing to the
5
Commonwealth.
6
Division 2 provides for the main debts recoverable by the
7
Commonwealth under this Act, as follows:
8
(a) overpayments or mistaken payments of parental leave pay;
9
(b) PPL funding amounts for a person that are not paid to the
10
person as parental leave pay;
11
(c) parental leave pay or PPL funding amounts paid to the wrong
12
person.
13
Division 3 allows an employee to recover, as a debt, parental leave
14
pay due from his or her employer.
15
Division 4 deals with the procedure for raising a debt that is
16
recoverable by the Commonwealth under this Act, and charging
17
interest on the debt. An administrative charge of $50 is also
18
payable if interest is charged.
19
Division 5 deals with how the Commonwealth can recover debts.
20
Division 6 allows the Secretary to write off debts. Even if a debt is
21
written off, it can be later recovered if circumstances change.
22
Division 7 allows the Secretary to waive debts in various
23
circumstances.
24
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Guide to this Part Division 1
Section 164
Paid Parental Leave Bill 2010 No. , 2010 131
Division 8 provides that debts under this Act apply in relation to
1
matters inside and outside Australia, and to all persons irrespective
2
of nationality or citizenship.
3
4
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 2 Main debts recoverable under this Act
Section 165
132 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Main debts recoverable under this Act
1
165 Debts due to the Commonwealth
2
If an amount has been paid by way of parental leave pay or a PPL
3
funding amount, the amount (or an amount equivalent to the
4
amount) is a debt due to the Commonwealth only to the extent
5
expressly provided for under:
6
(a) this Act; or
7
(b)
the
Data-matching Program (Assistance and Tax) Act 1990.
8
Note:
The main debts due to the Commonwealth under this Act are provided
9
for in this Division. Other debts due to the Commonwealth are
10
provided for in the following provisions:
11
(a) section 177 (which deals with interest);
12
(b) section 179 (which imposes an administrative charge);
13
(c) section 186 (which deals with non-compliance with garnishee
14
notices).
15
166 Parental leave pay instalment debts--instalments paid by
16
employer
17
(1) This section applies if:
18
(a) the total of amounts paid to a person (the first person) by
19
way of PPL funding amounts in relation to instalments for
20
another person for a child exceeds (by the PPL funding
21
excess) the total of amounts payable to the first person as
22
PPL funding amounts in relation to those instalments; and
23
(b) the first person pays an amount (the employer payment) to,
24
or in relation to, the other person for the child by way of an
25
instalment; and
26
(c) the total of employer payments paid for the child exceeds (by
27
the instalment excess) the total of amounts that are payable
28
by the first person to, or in relation to, the other person for
29
the child as instalments under Division 2 of Part 3-2 (which
30
deals with the payment of instalments by employers).
31
Note:
Instalments may stop being payable with retrospective effect if a
32
payability determination that parental leave is payable to the other
33
person for the child is set aside or varied after the instalments are paid.
34
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Main debts recoverable under this Act Division 2
Section 167
Paid Parental Leave Bill 2010 No. , 2010 133
(2) An amount equal to the lesser of the PPL funding excess and the
1
instalment excess is a debt due to the Commonwealth by the other
2
person.
3
Example: If no amounts are payable by the first person to, or in relation to, the
4
other person for a child as instalments, the amount of the instalment
5
excess is the total amount of the employer payments.
6
(3) The debt under subsection (2) arises:
7
(a) if the other person has a PPL period for the child--
8
immediately after the end of the person's PPL period; or
9
(b) otherwise--when subsection (1) starts to apply in relation to
10
an employer payment.
11
Note 1:
The other person does not have a PPL period for the child if a
12
payability determination that parental leave pay is payable to the other
13
person for the child has not been made, or has been set aside. In such a
14
case, a debt will arise as soon as there is an instalment excess.
15
Note 2:
This section may apply to overpayments by way of instalments or
16
amounts that are mistakenly paid. For example, an overpayment or
17
mistaken payment may arise due to administrative error, the setting
18
aside or variation of a payability determination or payments following
19
a stay order under subsection 41(2) of the AAT Act.
20
167 Parental leave pay instalment debts--instalments paid by
21
Secretary
22
(1) This section applies if:
23
(a) the Secretary pays an amount (the Secretary payment) to, or
24
in relation to, a person for a child by way of an instalment;
25
and
26
(b) the total of Secretary payments paid for the child exceeds the
27
total of amounts that are payable to, or in relation to, the
28
person for the child as instalments under Part 3-3 (which
29
deals with the payment of instalments by the Secretary).
30
Note:
Instalments may stop being payable with retrospective effect if the
31
payability determination is set aside or varied after the instalments are
32
paid.
33
(2) An amount equal to the amount of the excess is a debt due to the
34
Commonwealth by the person.
35
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 2 Main debts recoverable under this Act
Section 168
134 Paid Parental Leave Bill 2010 No. , 2010
Example: If no amounts are payable to, or in relation to, a person for a child as
1
instalments, the amount of the excess is the total amount of the
2
Secretary payments.
3
(3) The debt under subsection (2) arises:
4
(a) if the person has a PPL period for the child--immediately
5
after the end of the person's PPL period; or
6
(b) otherwise--when subsection (1) starts to apply in relation to
7
a Secretary payment.
8
Note 1:
The person does not have a PPL period for the child if a payability
9
determination that parental leave pay is payable to the person for the
10
child has not been made, or has been set aside. In such a case, a debt
11
will arise as soon as there is an excess as referred to in subsection (1).
12
Note 2:
This section may apply to overpayments by way of instalments or
13
amounts that are mistakenly paid. For example, an overpayment or
14
mistaken payment may arise due to administrative error, the setting
15
aside or variation of a payability determination or payments following
16
a stay order under subsection 41(2) of the AAT Act.
17
168 PPL funding amount debts--amounts not paid as parental leave
18
pay instalments
19
(1) This section applies if the total of amounts paid to a person (the
20
first person) by way of PPL funding amounts in relation to
21
instalments for another person for a child exceeds the total of
22
amounts paid by the first person to, or in relation to, the other
23
person by way of such instalments for the child.
24
(2) The amount of the excess is a debt due to the Commonwealth by
25
the first person.
26
Example: If the first person has not paid any amounts by way of instalments to
27
the other person, the amount of the excess is the total of amounts paid
28
to the first person by way of PPL funding amounts in relation to
29
instalments for the other person for the child.
30
(3) The debt under subsection (2) arises:
31
(a) if the other person has a PPL period for the child--at the
32
earlier of the following times:
33
(i) when the Secretary pays one or more of the instalments
34
to, or in relation to, the other person under section 85,
35
86 or 87 (which deal with the payment of arrears);
36
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Main debts recoverable under this Act Division 2
Section 169
Paid Parental Leave Bill 2010 No. , 2010 135
(ii) immediately after the end of the other person's PPL
1
period; or
2
(b) otherwise--when subsection (1) starts to apply in relation to
3
an amount paid to the first person.
4
Note 1:
The other person does not have a PPL period for the child if a
5
payability determination that parental leave pay is payable to the
6
person for the child has not been made, or has been set aside. In such a
7
case, a debt will arise as soon as there is an excess referred to in
8
subsection (1).
9
Note 2:
This section may apply to overpayments by way of PPL funding
10
amounts or amounts that are mistakenly paid. For example, an
11
overpayment or mistaken payment may arise due to administrative
12
error or the revocation or setting aside of an employer determination.
13
169 Wrong person receives parental leave pay instalment or PPL
14
funding amount
15
(1) This section applies if:
16
(a) an instalment or a PPL funding amount (the PPL payment) is
17
paid by the Secretary or an employer; and
18
(b) a person (the wrong recipient) other than the person (the
19
right recipient) to whom the PPL payment is payable
20
receives the PPL payment (or a part of it); and
21
(c) the wrong recipient is not authorised by the right recipient, or
22
authorised under law, to receive the PPL payment (or that
23
part).
24
(2) An amount equal to the PPL payment (or that part of the PPL
25
payment), is a debt due by the wrong recipient to:
26
(a) if the PPL payment is made by the Secretary--the
27
Commonwealth; or
28
(b) if the PPL payment is made by an employer--the employer.
29
Note 1:
Because the PPL payment (or part) has not been properly paid to the
30
right recipient, the Secretary or the employer must repay to the right
31
recipient the amount of the PPL payment that ought to have been paid
32
to the right recipient in the first place.
33
Note 2:
The Secretary may recover a debt due to the Commonwealth under
34
this section from an ADI (see section 192).
35
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 2 Main debts recoverable under this Act
Section 170
136 Paid Parental Leave Bill 2010 No. , 2010
170 Joint and several liability for debts arising because of false and
1
misleading statements
2
A person (the recipient) and another person are jointly and
3
severally liable to pay a debt if:
4
(a) the recipient is liable under this Division to repay an amount
5
(the unauthorised amount) paid to, or in relation to, the
6
recipient (or an amount equal to such an amount); and
7
(b) the unauthorised amount was paid because the recipient
8
contravened Part 7.4 of the Criminal Code (which deals with
9
false and misleading statements); and
10
(c) the other person is convicted of an offence:
11
(i) that is taken to have been committed in relation to that
12
contravention because of section 11.2 or 11.2A of the
13
Criminal Code (which deal with complicity, common
14
purpose and joint commission); or
15
(ii) in relation to that contravention against section 11.4 or
16
11.5 of the Criminal Code (which deal with incitement
17
and conspiracy).
18
171 Debts under the Data-matching Program (Assistance and Tax)
19
Act 1990
20
An amount is recoverable by the Commonwealth if:
21
(a) the amount has been paid to, or in relation to, a person by
22
way of an instalment; and
23
(b) the amount is a debt due to the Commonwealth under
24
subsection 11(6) of the Data-matching Program (Assistance
25
and Tax) Act 1990.
26
27
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Parental leave pay recoverable by employees from employers Division 3
Section 172
Paid Parental Leave Bill 2010 No. , 2010 137
Division 3--Parental leave pay recoverable by employees
1
from employers
2
172 PPL funding amount debts--debts owing by employers to
3
employees
4
(1) This section applies if:
5
(a) a PPL funding amount is paid to an employer in relation to an
6
instalment that is payable to a person; and
7
(b) the instalment, or part of the instalment, is not paid to, or in
8
relation to, the person in accordance with the following
9
provisions:
10
(i) section 70 (which deals with unauthorised deductions
11
from instalments);
12
(ii) Division 2 of Part 3-2 (which deals with the payment of
13
instalments by employers).
14
(2) So much of the instalment as is not paid to, or in relation to, the
15
person in accordance with section 70 and Division 2 of Part 3-2, or
16
as arrears under section 85, 86 or 87, is a debt due to the person by
17
the employer, and is recoverable by the person in a court of
18
competent jurisdiction.
19
20
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 4 Debt notices and interest on debts
Section 173
138 Paid Parental Leave Bill 2010 No. , 2010
Division 4--Debt notices and interest on debts
1
173 Debt notices--initial notice
2
Requirement to give initial notice
3
(1) If a debt due to the Commonwealth under this Act has not been
4
wholly paid, the Secretary must give the debtor a notice stating the
5
following:
6
(a) the date the preparation of the notice is completed (the date
7
of the initial debt notice);
8
(b) for a debt under section 168 that relates to a PPL funding
9
amount payable in relation to an instalment (or a debt under
10
this Division in relation to such a debt)--the name of the
11
person to whom, or in relation to whom, the instalment is
12
payable;
13
(c) the reason the debt was incurred, including a brief
14
explanation of the circumstances that led to the debt being
15
incurred;
16
(d) the period to which the debt relates;
17
(e) the outstanding amount of the debt at the date of the initial
18
debt notice;
19
(f) the day on which the outstanding amount is due and payable;
20
(g) that a range of options is available for repayment of the debt;
21
(h) the contact details for inquiries concerning the debt.
22
Due date
23
(2) The outstanding amount of the debt is due and payable on the 28th
24
day after the date of the initial debt notice.
25
Combining initial and further debt notices
26
(3) If a notice given under this section states the matters referred to in
27
paragraphs 174(2)(e) and (f) (which relate to interest and an
28
administrative charge), the notice is taken also to be a further debt
29
notice given under section 174.
30
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Debt notices and interest on debts Division 4
Section 174
Paid Parental Leave Bill 2010 No. , 2010 139
174 Debt notices--further debt notice if repayments not made
1
When a further debt notice may be given
2
(1) This section applies if:
3
(a) a person has been given a notice under section 173 for a debt;
4
and
5
(b) the debt has not been wholly paid; and
6
(c)
either:
7
(i) the person has failed to enter into a debt payment
8
arrangement to pay the outstanding amount of the debt;
9
or
10
(ii) the person has entered into a debt payment arrangement,
11
but has failed to make a payment (or payments) in
12
accordance with the arrangement.
13
Contents of further debt notice
14
(2) The Secretary may give the person a further notice (the further
15
debt notice) stating the following:
16
(a) the date the preparation of the notice is completed (the date
17
of the further debt notice);
18
(b) the matters referred to in paragraphs 173(1)(b) to (d);
19
(c) the outstanding amount of the debt at the date of the further
20
debt notice;
21
(d) the matters referred to in paragraphs 173(1)(f) to (h);
22
(e) the effect of sections 175, 176, 177 and 179 (which deal with
23
interest and an administrative charge);
24
(f) how the interest under section 175 is to be calculated.
25
Note:
A person may be taken to have been given a notice under this section
26
by the giving of an initial notice under section 173 if the matters stated
27
in paragraphs (2)(e) and (f) of this section are stated in the initial
28
notice (see subsection 173(3)).
29
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 4 Debt notices and interest on debts
Section 175
140 Paid Parental Leave Bill 2010 No. , 2010
175 Interest on debts--when interest becomes payable
1
Scope
2
(1) This section applies if a further debt notice is given under
3
section 174 in relation to a debt.
4
Final debt payment day
5
(2)
The
final debt payment day for the payment of a debt is the latest
6
of the following days:
7
(a) the 90th day after the day on which the outstanding amount
8
of the debt was due and payable;
9
(b) the 28th day after the date of the further debt notice;
10
(c) if the debtor (or another person) applies in accordance with
11
section 206 for internal review of the decision to give the
12
notice under section 173, or the further debt notice--the 90th
13
day after the day on which an officer makes a decision in
14
relation to the application.
15
No arrangement made for payment of debt
16
(3) Subsection (4) applies if:
17
(a) the person has not entered into a debt payment arrangement,
18
on or before the final debt payment day, to pay the
19
outstanding amount of the debt; and
20
(b) the further debt notice states that the person will be required
21
to pay interest under subsection (4) of this section.
22
(4) The person is liable to pay interest on any outstanding amount
23
from time to time:
24
(a) from and including the first day after the final debt payment
25
day until the debt is wholly paid; and
26
(b) at the penalty interest rate.
27
Failure to pay amount due under an arrangement
28
(5) Subsection (6) applies if:
29
(a) the person has entered into a debt payment arrangement to
30
pay the outstanding amount of the debt; and
31
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Debt notices and interest on debts Division 4
Section 176
Paid Parental Leave Bill 2010 No. , 2010 141
(b) the person has failed to make a particular payment in
1
accordance with the arrangement; and
2
(c) the further debt notice states that the person will be required
3
to pay interest under subsection (6) of this section.
4
(6) The person is liable to pay interest, at the penalty interest rate, on
5
the outstanding amount from time to time:
6
(a) if the failure happens on or before the final debt payment
7
day--from and including the first day after the final debt
8
payment day until the debt is wholly paid; or
9
(b) if the failure happens after the final debt payment day--from
10
and including the day after the day in relation to which the
11
last payment in relation to the debt was made until the debt is
12
wholly paid.
13
Interest not payable on debts incurred because of Commonwealth
14
administrative error
15
(7) A person is not liable under this section to pay interest on a debt, or
16
the proportion of a debt, that was incurred because of an
17
administrative error made by the Commonwealth or an agent of the
18
Commonwealth.
19
176 Interest on debts--application
20
An amount of interest payable on a debt under section 175 that has
21
been paid on the debt is to be applied as follows:
22
(a) until the debt (excluding interest) is fully paid--in
23
satisfaction of the amount of the debt that is due when the
24
payment is made;
25
(b) after the debt (excluding interest) is fully paid--in
26
satisfaction of the interest that had become payable on the
27
debt before the debt was fully paid.
28
177 Interest on debts--recovery as a debt
29
The interest payable by a person under section 175 on the
30
outstanding amount of a debt is a debt due to the Commonwealth
31
by the person.
32
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 4 Debt notices and interest on debts
Section 178
142 Paid Parental Leave Bill 2010 No. , 2010
178 Interest exemption determinations
1
(1) The Secretary may determine (by an interest exemption
2
determination) that interest is not payable, or is not payable in
3
relation to a particular period, by a person on the outstanding
4
amount of a debt.
5
(2) The Secretary may make an interest exemption determination
6
under this section in circumstances that include the Secretary being
7
satisfied that the person has a reasonable excuse for:
8
(a) failing to enter into a debt payment arrangement to pay the
9
outstanding amount of the debt; or
10
(b) having entered such an arrangement, failing to make a
11
payment (or payments) in accordance with the arrangement.
12
(3) An interest exemption determination may:
13
(a) relate to a period before, or to a period that includes a period
14
before, the making of the determination; and
15
(b) be expressed to be subject to the person complying with one
16
or more stated conditions.
17
(4) If a person has been given a further debt notice requiring the
18
person to pay interest on the debt, the Secretary must give written
19
notice of the decision to make an interest exemption determination
20
to the person as soon as practicable after the determination is made.
21
(5) If a person contravenes a condition, or conditions, of an interest
22
exemption determination without reasonable excuse, the
23
determination ceases to have effect from and including the day on
24
which the contravention, or the earliest of the contraventions,
25
occurred.
26
(6) The Secretary may cancel or vary an interest exemption
27
determination by written notice given to the person.
28
179 Administrative charge
29
(1) When a person first becomes liable to pay interest under
30
section 175 in relation to the outstanding amount of a particular
31
debt, the person is liable to pay an administrative charge of $50 in
32
relation to the outstanding amount of that debt.
33
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Debt notices and interest on debts Division 4
Section 180
Paid Parental Leave Bill 2010 No. , 2010 143
(2) An administrative charge payable by a person is a debt due to the
1
Commonwealth by the person.
2
180 Penalty interest rate
3
Interest rate
4
(1)
The
penalty interest rate is:
5
(a) 20% per year; or
6
(b) if a lower rate is prescribed by the PPL rules under
7
subsection (2)--that lower rate.
8
(2) The PPL rules may prescribe a rate of less than 20% per year as the
9
penalty interest rate.
10
Guidelines
11
(3) The PPL rules must prescribe guidelines for the operation of the
12
provisions of this Act dealing with penalty interest.
13
14
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 5 How the Commonwealth can recover debts
Section 181
144 Paid Parental Leave Bill 2010 No. , 2010
Division 5--How the Commonwealth can recover debts
1
181 Debts to which Division 5 applies
2
This Division applies to debts due to the Commonwealth under this
3
Act.
4
Note:
See the following provisions:
5
(a) Division 2 (which provides for the main debts recoverable under
6
this Act);
7
(b) sections 177, 179 and 186 (which provide for debts relating to
8
interest and garnishee notices).
9
182 How to recover debts
10
A debt is recoverable by the Commonwealth from a person by one
11
or more of the following means:
12
(a) legal proceedings (see section 183);
13
(b) garnishee notice (see section 184);
14
(c) debt payment arrangements (see section 190);
15
(d) deductions from instalments payable to another person for
16
the same child (see section 191);
17
(e) recovery from an ADI, if the debt arises from a payment to
18
the wrong person, or the amount is to be recovered from a
19
deceased estate (see section 192);
20
(f) deduction or setting off in relation to a payment to which the
21
debtor (or another person) is entitled under another Act, but
22
only if the other Act expressly provides for recovery of the
23
debt by such deduction or setting off.
24
Note:
A debt can be recovered by deduction or set off in relation to other
25
payments as follows:
26
(a) sections 84 and 92 of the A New Tax System (Family Assistance)
27
(Administration) Act 1999 (which deal with family tax benefit);
28
(b) sections 84A and 92A of the A New Tax System (Family
29
Assistance) (Administration) Act 1999 (which deal with family
30
assistance);
31
(c) sections 1231 and 1234A of the Social Security Act (which deal
32
with social security payments).
33
(d) section 205 of the Veterans' Entitlements Act 1986 (which deals
34
with pensions, allowances and other payments).
35
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
How the Commonwealth can recover debts Division 5
Section 183
Paid Parental Leave Bill 2010 No. , 2010 145
183 Legal proceedings
1
A debt is recoverable by the Commonwealth in a court of
2
competent jurisdiction.
3
Note:
See section 189 for time limits on recovery by legal proceedings.
4
184 Garnishee notices--general
5
Issue of garnishee notice
6
(1) The Secretary may, by written notice (the garnishee notice) to any
7
of the following people (the garnishee), require the garnishee to
8
pay the Commonwealth the amount covered by subsection (2) in
9
relation to a debt (the original debt) that is recoverable by the
10
Commonwealth under this Act from a person (the original debtor):
11
(a) a person by whom any money is due or accruing, or may
12
become due, to the original debtor;
13
(b) a person who holds or may later hold money for or on
14
account of the original debtor;
15
(c) a person who holds or may later hold money on account of
16
some other person for payment to the original debtor;
17
(d) a person who has authority from some other person to pay
18
money to the original debtor.
19
Note 1:
Subsection (3) provides that conditions on the payment of money due
20
to the original debtor are to be ignored for the purposes of this section.
21
Note 2:
See section 189 for time limits on recovery by garnishee notice.
22
(2) The amount covered by this subsection is:
23
(a) an amount stated in the garnishee notice, not exceeding the
24
amount of the original debt or the amount of the money
25
referred to in paragraph (1)(a), (b), (c) or (d); or
26
(b) an amount stated in the garnishee notice out of each payment
27
that the garnishee becomes liable from time to time to make
28
to the original debtor, until the original debt is satisfied; or
29
(c) the amount of a percentage stated in the garnishee notice of
30
each payment that the garnishee becomes liable from time to
31
time to make to the original debtor, until the original debt is
32
satisfied.
33
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 5 How the Commonwealth can recover debts
Section 185
146 Paid Parental Leave Bill 2010 No. , 2010
(3) For the purposes of this section, if, apart from this subsection,
1
money is not due or repayable on demand to the original debtor
2
unless a condition is fulfilled, the money is taken to be due or
3
repayable on demand, even though the condition has not been
4
fulfilled.
5
Time for compliance
6
(4) The time for making a payment in compliance with a garnishee
7
notice is the time stated in the notice, but not before:
8
(a) the money concerned becomes due or is held; or
9
(b) the end of 14 days after the notice is given.
10
(5) The Secretary must give a copy of a garnishee notice to the original
11
debtor.
12
185 Garnishee notices--amounts paid in compliance
13
(1) A person who makes a payment to the Commonwealth in
14
compliance with a garnishee notice is taken to have made the
15
payment under the authority of the original debtor and of any other
16
person concerned.
17
(2) If, after a garnishee notice is given to a garnishee, an amount is
18
paid by another person in reduction or in satisfaction of the original
19
debt:
20
(a) the Secretary must notify the garnishee accordingly; and
21
(b) the amount of the unpaid debt stated in the garnishee notice is
22
taken to be reduced by an amount equal to the amount paid.
23
186 Garnishee notices--debt for failure to comply with notice
24
(1) This section applies if a garnishee fails to comply with the
25
garnishee notice to the extent that the garnishee is capable of
26
complying with it.
27
(2) The amount of the debt outstanding (worked out under
28
subsection (3)) is a debt due to the Commonwealth by the
29
garnishee.
30
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
How the Commonwealth can recover debts Division 5
Section 187
Paid Parental Leave Bill 2010 No. , 2010 147
(3) The amount of the debt outstanding is the amount equal to the
1
lesser of the following amounts:
2
(a) as much of the amount required by the garnishee notice to be
3
paid by the garnishee as the garnishee was able to pay;
4
(b) as much of the debt due by the original debtor when the
5
notice was given as remains due from time to time.
6
(4) If the Commonwealth recovers the whole or part of the debt due by
7
the garnishee under subsection (2), or by the original debtor, then:
8
(a) both debts are reduced by the amount that the
9
Commonwealth has so recovered; and
10
(b) the amount of the unpaid debt stated in the garnishee notice is
11
taken to be reduced by the amount so recovered.
12
(5) This section applies to an amount despite any law of a State or a
13
Territory (however expressed) under which the amount is
14
inalienable.
15
187 Garnishee notices--offence for non-compliance
16
A person commits an offence if:
17
(a) the person is a garnishee; and
18
(b) the person is given a garnishee notice; and
19
(c) the person refuses or fails to comply with the notice.
20
Penalty: Imprisonment for 12 months.
21
188 Garnishee notices--relationship with other laws
22
Sections 184 to 187 apply to an amount of money despite any law
23
of a State or a Territory (however expressed) under which the
24
amount is inalienable.
25
189 Legal proceedings and garnishee notices--time limits for debt
26
recovery
27
General rule--6 years after officer becomes aware of debt
28
(1)
Action
(debt recovery action) under section 183 or 184 for the
29
recovery of a debt by legal proceedings or garnishee notice is not
30
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 5 How the Commonwealth can recover debts
Section 189
148 Paid Parental Leave Bill 2010 No. , 2010
to be started after the end of 6 years starting on the first day on
1
which an officer becomes aware, or could reasonably be expected
2
to have become aware, of the circumstances that gave rise to the
3
debt.
4
Extension of time if debt starts to be paid
5
(2) If, within the period referred to in subsection (1), part of the
6
amount owing on the debt is paid, debt recovery action may be
7
commenced within 6 years starting on the day of the payment.
8
Extension of time if debt acknowledged
9
(3) If, within the period referred to in subsection (1), the person who
10
owes the debt acknowledges that he or she owes it, debt recovery
11
action may be commenced within 6 years starting on the day of
12
acknowledgment.
13
Extension of time following earlier debt recovery action
14
(4) If, within the period referred to in subsection (1), debt recovery
15
action (the first action) by one method (either legal proceedings or
16
garnishee notice) is commenced, debt recovery by the other
17
method may be commenced within 6 years after the end of the first
18
action.
19
Extension of time following internal Departmental action
20
(5) If, within the period referred to in subsection (1), an action covered
21
by subsection (6) is commenced, debt recovery action may be
22
commenced within 6 years after the end of the action.
23
(6) This subsection covers the following actions:
24
(a) a review of a file relating to action for the recovery of the
25
debt;
26
(b) other internal Departmental action relating to action for the
27
recovery of the debt.
28
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
How the Commonwealth can recover debts Division 5
Section 190
Paid Parental Leave Bill 2010 No. , 2010 149
190 Payment of debts by arrangement
1
(1) The Secretary may, on behalf of the Commonwealth, enter into an
2
arrangement (a debt payment arrangement) with a person who
3
owes a debt, under which the person is to pay the debt, or the
4
outstanding amount of the debt, by part payments in accordance
5
with the terms of the arrangement.
6
(2) A debt payment arrangement operates, or is taken to have operated,
7
on and after the day stated in the arrangement as the day on which
8
the arrangement starts (whether that day is the day on which the
9
arrangement is entered into or an earlier or later day).
10
(3) If a debt payment arrangement does not state a day as referred to in
11
subsection (2), it operates on and after the day on which it is
12
entered into.
13
(4) The Secretary may terminate or alter a debt payment arrangement:
14
(a) at the debtor's request; or
15
(b) after giving 28 days' notice to the debtor of the proposed
16
termination or alteration; or
17
(c) without notice, if the Secretary is satisfied that the debtor has
18
failed to disclose material information about the debtor's true
19
capacity to repay the debt.
20
191 Deductions from instalments payable to another person
21
(1) This section applies if an amount is deducted under subsection
22
67(2) from an instalment payable to a secondary claimant for a
23
child, if the deduction is for the purposes of the recovery of a debt
24
due to the Commonwealth by the primary claimant in relation to
25
the same child.
26
(2) The debt due to the Commonwealth by the primary claimant is
27
reduced by an amount equal to the amount of the deduction.
28
192 Recovery from an ADI
29
Payment into wrong account or payment for deceased person
30
(1) This section applies if:
31
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 5 How the Commonwealth can recover debts
Section 192
150 Paid Parental Leave Bill 2010 No. , 2010
(a) an instalment or a PPL funding amount is paid to an ADI for
1
the credit of an account kept with the ADI in the name of a
2
person or persons; and
3
(b) a debt that is recoverable by the Commonwealth under this
4
Act arises (or such debts arise) because either:
5
(i) the payment was intended to be paid to someone other
6
than the person, or those persons; or
7
(ii) the payment was intended to be paid to the person, or
8
one of those persons, but the person for whom the
9
payment was intended dies before the payment was
10
made.
11
Notice to ADI requiring repayment and to deceased estate
12
(2) The Secretary may give a written notice to the ADI setting out the
13
relevant matters referred to in paragraphs (1)(a) and (b) and
14
requiring the ADI to pay to the Commonwealth, within a period
15
(being a reasonable period) stated in the notice, the lesser of the
16
following amounts:
17
(a) the amount of the instalment or PPL funding amount, as
18
stated in the notice;
19
(b) the amount standing to the credit of the account when the
20
notice is given to the ADI.
21
(3) If the notice relates to a payment to a person who has died, as soon
22
as possible after issuing the notice, the Secretary must inform the
23
deceased estate in writing of:
24
(a) the amount sought to be recovered from the deceased
25
person's account; and
26
(b) the reasons for the recovery action.
27
Offence for contravening notice
28
(4) A body corporate commits an offence if:
29
(a) the body is an ADI; and
30
(b) the body is given a notice under subsection (2); and
31
(c) the body refuses or fails to comply with the notice.
32
Penalty: 300 penalty units.
33
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
How the Commonwealth can recover debts Division 5
Section 192
Paid Parental Leave Bill 2010 No. , 2010 151
Amount recovered reduces debt
1
(5) Any amount recovered by the Commonwealth from an ADI under
2
this section reduces the amount of a debt referred to in
3
paragraph (1)(b).
4
5
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 6 Writing off debts
Section 193
152 Paid Parental Leave Bill 2010 No. , 2010
Division 6--Writing off debts
1
193 When debts can be written off
2
General
3
(1) The Secretary may, on behalf of the Commonwealth, decide to
4
write off, for a stated period or otherwise, a debt that is due to the
5
Commonwealth under this Act.
6
Note:
Debts recoverable by the Commonwealth under this Act are provided
7
for by the following provisions:
8
(a) Division 2 (which provides for the main debts recoverable under
9
this Act);
10
(b) sections 177, 179 and 186 (which provide for debts relating to
11
interest and garnishee notices).
12
Write off conditions
13
(2) The Secretary may decide to write off a debt under subsection (1)
14
if, and only if:
15
(a) the debt is irrecoverable at law; or
16
(b) the debtor has no capacity to repay the debt; or
17
(c) the debtor's whereabouts are unknown after all reasonable
18
efforts have been made to locate the debtor; or
19
(d) it is not cost effective for the Commonwealth to take action
20
to recover the debt.
21
When a debt is irrecoverable
22
(3) For the purposes of paragraph (2)(a), a debt is taken to be
23
irrecoverable at law if, and only if:
24
(a) the debt cannot be recovered under Division 5, for example
25
because a time limit for recovery action under that Division
26
has elapsed; or
27
(b) there is no proof of the debt capable of sustaining legal
28
proceedings for its recovery; or
29
(c) the debtor is discharged from bankruptcy or administration
30
and the debt was incurred before the debtor became bankrupt
31
or entered into administration, and was not incurred by fraud;
32
or
33
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Writing off debts Division 6
Section 193
Paid Parental Leave Bill 2010 No. , 2010 153
(d) the debtor has died leaving no estate or not enough funds in
1
the debtor's estate to repay the debt.
2
When a debtor has capacity to repay by deductions etc.
3
(4) For the purposes of paragraph (2)(b), a person is taken to have the
4
capacity to repay a debt to which subsection (5) applies, unless
5
recovery by those means would cause the person severe financial
6
hardship.
7
(5) This subsection applies to a debt if it could be recovered by
8
deduction or setting off in relation to a payment to which the
9
debtor is entitled under another Act.
10
When write off comes into operation
11
(6) A decision under subsection (1) to write off a debt comes into
12
operation:
13
(a) if no day is stated in the decision--on the day the decision is
14
made; or
15
(b) if a day is stated in the decision--on the stated day (whether
16
that day is before, after or on the day on which the decision is
17
made).
18
Debt that has been written off may be recovered
19
(7) Nothing in this section prevents anything being done at any time to
20
recover a debt that has been written off under this section.
21
22
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 7 Waiver of debts
Section 194
154 Paid Parental Leave Bill 2010 No. , 2010
Division 7--Waiver of debts
1
194 Waiver of debts--general
2
(1) This Division applies to debts that are due to the Commonwealth
3
under this Act.
4
Note:
Debts recoverable by the Commonwealth under this Act are provided
5
for by the following provisions:
6
(a) Division 2 (which provides for the main debts recoverable under
7
this Act);
8
(b) sections 177, 179 and 186 (which provide for debts relating to
9
interest and garnishee notices).
10
(2) The Secretary may, on behalf of the Commonwealth, decide to
11
waive the Commonwealth's right to recover the whole or a part of
12
a debt, but only if required or allowed to do so under another
13
provision of this Division.
14
(3) A decision to waive the right to recover a debt (or a part of a debt)
15
comes into operation:
16
(a) if no day is stated in the decision--on the day the decision is
17
made; or
18
(b) if a day is stated in the decision--on the stated day (whether
19
that day is before, after or on the day on which the decision is
20
made).
21
195 Waiver of debts--administrative error
22
The Secretary must waive the right to recover so much of a debt as
23
is attributable solely to an administrative error made by the
24
Commonwealth, or an agent of the Commonwealth, if:
25
(a) the debtor received in good faith the payment or payments
26
that gave rise to that proportion of the debt; and
27
(b) the debtor would suffer severe financial hardship if it were
28
not waived.
29
196 Waiver of debts--arising from offence
30
The Secretary must waive the right to recover so much of a debt as
31
arises from an offence, if:
32
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Waiver of debts Division 7
Section 197
Paid Parental Leave Bill 2010 No. , 2010 155
(a) the debtor is convicted of the offence; and
1
(b) the court indicated in sentencing the debtor that it imposed a
2
longer custodial sentence on the debtor because he or she was
3
unable or unwilling to pay the debt.
4
197 Waiver of debts--small debts
5
(1) The Secretary must waive the right to recover a debt if:
6
(a) the debt is, or is likely to be, less than $200; and
7
(b) it is not cost effective for the Commonwealth to take action
8
to recover the debt.
9
(2) Subsection (1) does not apply if the debt is at least $50 and could
10
be recovered by deduction or setting off in relation to a payment to
11
which the debtor is entitled under another Act.
12
198 Waiver of debts--settlement of civil actions
13
Settlement of civil action
14
(1) If the Commonwealth has agreed to settle a civil action against a
15
debtor for recovery of a debt for less than the full amount of the
16
debt, the Secretary must waive the right to recover the difference
17
between the debt and the amount that is the subject of the
18
settlement.
19
Settlement of proceedings before the AAT
20
(2)
If the Secretary has agreed to settle proceedings before the AAT
21
relating to recovery of a debt on the basis that the debtor will pay
22
less than the full amount of the debt, the Secretary must waive the
23
right to recover the difference between the debt and the amount
24
that is the subject of the settlement.
25
Note:
See section 263 (which deals with settlement of proceedings before
26
the AAT).
27
Waiver where at least 80% of debt recovered and debtor cannot
28
pay more
29
(3)
If:
30
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 7 Waiver of debts
Section 198
156 Paid Parental Leave Bill 2010 No. , 2010
(a) the Commonwealth has recovered at least 80% of the original
1
value of a debt from a debtor; and
2
(b) the Commonwealth and the debtor agree that the recovery is
3
in full satisfaction for the whole of the debt; and
4
(c) the debtor cannot repay a greater proportion of the debt;
5
the Secretary must waive the right to recover the remaining 20% or
6
less of the value of the original debt.
7
Agreement for part payment in satisfaction of outstanding debt
8
(4)
If the Secretary and a debtor agree that the debtor's debt will be
9
fully satisfied if the debtor pays the Commonwealth an agreed
10
amount less than the amount (the unpaid amount) of the debt
11
outstanding when the agreement is made, the Secretary must, if the
12
agreed amount is paid, waive the right to recover the difference
13
between the unpaid amount and the agreed amount.
14
Limits on agreement to accept part payment in satisfaction of
15
outstanding debt
16
(5) The Secretary must not make an agreement described in
17
subsection (4) unless the Secretary is satisfied that the agreed
18
amount is at least the present value of the unpaid amount if it is
19
repaid in instalments of amounts, and at times, determined by the
20
Secretary.
21
Working out present value of unpaid amount
22
(6)
For the purposes of subsection (5), the present value of the unpaid
23
amount is the amount worked out in accordance with the following
24
formula:
25
(
)
rp
Annual repayment
1
1
Settlement interest
1
Settlement interest
×
-
+
26
where:
27
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Waiver of debts Division 7
Section 199
Paid Parental Leave Bill 2010 No. , 2010 157
annual repayment is the amount of the debt that the Secretary
1
believes would be recovered under Division 5 in a year if
2
subsection (4) did not apply in relation to the debt.
3
rp (short for repayment period) is the number of years needed to
4
repay the unpaid amount if repayments equal to the annual
5
repayment were made each year.
6
settlement interest is an annual rate of interest prescribed for the
7
purposes of this subsection by the PPL rules.
8
199 Waiver of debts--special circumstances
9
The Secretary may waive the right to recover all or part of a debt if
10
the Secretary is satisfied that:
11
(a) the debt did not result wholly or partly from the debtor or
12
another person knowingly:
13
(i) making a false or misleading statement or
14
representation; or
15
(ii) failing or omitting to comply with a provision of this
16
Act; and
17
(b) there are special circumstances (other than financial hardship
18
alone) that make it desirable to waive the debt (or part); and
19
(c) it is more appropriate to waive the debt (or part) than to write
20
off the debt (or part).
21
200 Waiver of debts--determined classes
22
(1) The Secretary may, on behalf of the Commonwealth, decide to
23
waive the Commonwealth's right to recover debts (or parts of
24
debts) that are included in a class of debts determined by the
25
Minister by legislative instrument.
26
(2) A determination under subsection (1) may state:
27
(a) conditions to be met before the Secretary exercises the power
28
to waive the debts (or parts); and
29
(b) limits on the amounts of the debts to be waived.
30
(3) A decision under subsection (1) comes into operation:
31
Chapter 4 Compliance and enforcement
Part 4-3 Debt recovery
Division 7 Waiver of debts
Section 200
158 Paid Parental Leave Bill 2010 No. , 2010
(a) if no day is stated in the decision--on the day the decision is
1
made; or
2
(b) if a day is stated in the decision--on the stated day (whether
3
before, after or on the day the decision is made).
4
5
Compliance and enforcement Chapter 4
Debt recovery Part 4-3
Miscellaneous Division 8
Section 201
Paid Parental Leave Bill 2010 No. , 2010 159
Division 8--Miscellaneous
1
201 Overseas application of debts
2
The operation of a provision creating a debt under this Part (except
3
for section 171) extends to:
4
(a) acts, omissions, matters and things outside Australia, whether
5
or not in a foreign country; and
6
(b) all persons, irrespective of their nationality or citizenship.
7
Note:
Section 171 provides for debts under the Data-matching Program
8
(Assistance and Tax) Act 1990.
9
10
Chapter 5 Review of decisions
Part 5-1 Internal review of decisions
Division 1 Guide to this Part
Section 202
160 Paid Parental Leave Bill 2010 No. , 2010
Chapter 5--Review of decisions
1
Part 5-1--Internal review of decisions
2
Division 1--Guide to this Part
3
202 Guide to this Part
4
This Part is about the internal review of decisions of officers under
5
this Act.
6
Division 2 sets out 3 kinds of internal review of those decisions.
7
The first kind of review is where the Secretary, on his or her own
8
initiative, reviews those decisions.
9
The second kind of review is where a person whose interests are
10
affected by certain decisions (which are "claimant decisions")
11
applies for internal review of the decision.
12
The third kind of review is where an employer applies for internal
13
review of certain decisions that affect the employer (those
14
decisions are "employer determination decisions" and "employer
15
funding amount decisions"). Employer determination decisions can
16
only be reviewed on application, and not on the Secretary's own
17
initiative.
18
19
Review of decisions Chapter 5
Internal review of decisions Part 5-1
Internal review of decisions Division 2
Section 203
Paid Parental Leave Bill 2010 No. , 2010 161
Division 2--Internal review of decisions
1
203 Internal review--own-initiative review by Secretary
2
(1) The Secretary may, on his or her own initiative, review a decision
3
of an officer under this Act if the Secretary is satisfied that there is
4
enough reason to review the decision.
5
(2) However, the Secretary must not, on his or her own initiative,
6
review a decision of an officer under section 101 to make an
7
employer determination.
8
Note 1:
An employer may apply for review of a decision to make an employer
9
determination (see section 207).
10
Note 2:
For revocation of employer determinations, see section 108.
11
(3) The Secretary may review a decision:
12
(a) whether or not any person has applied for review of the
13
decision; and
14
(b) even though an application has been made to the SSAT or the
15
AAT for review of the decision.
16
(4) On review of a decision, the Secretary may:
17
(a) affirm the decision; or
18
(b) vary the decision; or
19
(c) set the decision aside and substitute a new decision.
20
(5) A reference in subsection (1) to a decision of an officer under this
21
Act includes a reference to a determination that the Secretary is
22
taken, because of a provision of this Act, to have made.
23
204 Internal review--own-initiative review and tribunal review
24
(1) The Secretary must give the Principal Member written notice of a
25
decision under subsection 203(4) if, when the Secretary makes the
26
decision, an application has been made to the SSAT for review in
27
relation to the decision that was reviewed by the Secretary.
28
(2) The Secretary must give the Registrar of the AAT written notice of
29
a decision under subsection 203(4) if, when the Secretary makes
30
Chapter 5 Review of decisions
Part 5-1 Internal review of decisions
Division 2 Internal review of decisions
Section 205
162 Paid Parental Leave Bill 2010 No. , 2010
the decision, an application has been made to the AAT for review
1
in relation to the decision that was reviewed by the Secretary.
2
205 Internal review--review following application
3
(1) If an application is made under section 206, 207 or 208 for review
4
of a decision, the Secretary or an authorised review officer must:
5
(a) review the decision; and
6
(b) do one of the following:
7
(i) affirm the decision;
8
(ii) vary the decision;
9
(iii) set the decision aside and substitute a new decision.
10
(2) However, an authorised review officer must not, under
11
subsection (1), review a decision relating to the exercise of the
12
Secretary's power under section 263 (settlement of proceedings
13
before the AAT).
14
206 Internal review--application for review of claimant decision
15
Claimant decisions
16
(1) This section applies to a decision of an officer under this Act,
17
unless the decision is:
18
(a) a decision under Part 3-2 (which deals with the payment of
19
instalments by employer); or
20
(b) a decision under Part 3-5 (which deals with employer
21
determinations); or
22
(c) a decision under Part 4-2 (which deals with compliance); or
23
(d) a decision under the PPL rules, if the PPL rules state that this
24
section does not apply to the decision; or
25
(e) a decision under the regulations, if the regulations state that
26
this section does not apply to the decision.
27
(2) A reference in subsection (1) to a decision of an officer under this
28
Act includes a reference to a determination that the Secretary is
29
taken, because of a provision of this Act, to have made.
30
(3) A decision to which this section applies is a claimant decision.
31
Review of decisions Chapter 5
Internal review of decisions Part 5-1
Internal review of decisions Division 2
Section 207
Paid Parental Leave Bill 2010 No. , 2010 163
Application for review
1
(4) A person whose interests are affected by a claimant decision may
2
apply to the Secretary for review of the decision, unless the
3
decision was made personally by a PPL agency head.
4
(5) An application under subsection (4) may only be made:
5
(a) within 28 days after the day the decision was made; or
6
(b) if the Secretary is satisfied that a longer period should
7
apply--within the longer period.
8
(6) A person cannot make an application under subsection (4) in the
9
person's capacity as an employer.
10
207 Internal review--application for review of employer
11
determination decision
12
Scope
13
(1) This section applies to a decision (an employer determination
14
decision) of an officer under section 101 to make an employer
15
determination.
16
(2) A reference in subsection (1) to a decision of an officer includes a
17
reference to a determination that the Secretary is taken, because of
18
a provision of this Act, to have made.
19
Application
20
(3) An employer may apply, in writing, to the Secretary for review of
21
an employer determination decision that relates to the employer
22
and a person if the employer believes that:
23
(a)
both:
24
(i) a condition in paragraph 101(1)(b) or (c) is not satisfied
25
in relation to the employer determination; and
26
(ii) the employer has not made an election under
27
section 109 that applies to the person; or
28
(b) a condition in paragraph 101(1)(d) or (e) is not satisfied in
29
relation to the employer determination.
30
Chapter 5 Review of decisions
Part 5-1 Internal review of decisions
Division 2 Internal review of decisions
Section 207
164 Paid Parental Leave Bill 2010 No. , 2010
Note 1:
The conditions in paragraphs 101(1)(b) to (e) relate to the employment
1
by an employer of someone to whom parental leave pay is payable.
2
Note 2:
Section 109 allows an employer to elect to pay instalments to an
3
employee, a class of employees or all employees of the employer.
4
Subsection 101(2) deals with the application of paragraphs 101(1)(b)
5
and (c) if the employer has made an election under section 109 that
6
applies to the person.
7
(4) However, the employer cannot make an application under
8
subsection (3) for review of an employer determination decision
9
that was made personally by a PPL agency head.
10
(5) An application under subsection (3) may only be made within the
11
14 day period referred to in section 103.
12
Note:
Section 103 requires an employer for which an employer
13
determination has been made to, within a 14 day period, either provide
14
a notice to the Secretary accepting the determination or apply for
15
review of the employer determination.
16
(6) An application under subsection (3) must:
17
(a) specify the condition or conditions that the employer believes
18
are not satisfied; and
19
(b) if paragraph (3)(a) applies to the application--state whether
20
the employer believes that an election under section 109
21
applies to the person; and
22
(c) be signed by a person authorised by the employer; and
23
(d) be accompanied by:
24
(i) documentary evidence supporting the application; or
25
(ii) if the applicant is unable to provide documentary
26
evidence--a statutory declaration supporting the
27
application.
28
(7) The disclosure of personal information (within the meaning of the
29
Privacy Act 1988) for the purposes of making an application under
30
subsection (3) is taken to be authorised by law for the purposes of:
31
(a)
the
Privacy Act 1988; and
32
(b) any provision of a law of a State or a Territory that provides
33
that personal information may be used or disclosed if the use
34
or disclosure is authorised by law.
35
Review of decisions Chapter 5
Internal review of decisions Part 5-1
Internal review of decisions Division 2
Section 208
Paid Parental Leave Bill 2010 No. , 2010 165
208 Internal review--application for review of employer funding
1
amount decision
2
Scope
3
(1) This section applies to a decision of an officer under section 75 to
4
pay a PPL funding amount to an employer.
5
(2) A reference in subsection (1) to a decision of an officer includes a
6
reference to a determination that the Secretary is taken, because of
7
a provision of this Act, to have made.
8
(3) A decision to which this section applies is an employer funding
9
amount decision.
10
Application
11
(4) An employer may apply, in writing, to the Secretary for review of
12
an employer funding amount decision that relates to the employer
13
if:
14
(a) the employer believes that the Secretary has contravened
15
subsection 75(3) in relation to the decision; and
16
(b) the decision was not made personally by a PPL agency head.
17
Note:
Subsection 75(3) requires the Secretary to pay a PPL funding amount
18
to an employer within a certain time.
19
(5) An application under subsection (4) must be signed by a person
20
authorised by the employer.
21
(6) An application under subsection (4) in relation to a PPL funding
22
amount may only be made within 14 days after the second payroll
23
cut-off referred to in subsection 75(3) in relation to the PPL
24
funding amount.
25
209 Internal review--withdrawal of application
26
(1) A person or an employer who has applied to the Secretary for
27
review of a decision may withdraw the application at any time
28
before the review has been completed.
29
(2) If an application for review of a decision, other than an application
30
under section 207 (which deals with application for review of
31
Chapter 5 Review of decisions
Part 5-1 Internal review of decisions
Division 2 Internal review of decisions
Section 210
166 Paid Parental Leave Bill 2010 No. , 2010
employer determination decisions), is withdrawn, the application is
1
taken never to have been made.
2
(3) An application may be withdrawn orally or in writing or in any
3
other manner approved by the Secretary.
4
210 Internal review--when decision made on review comes into
5
force
6
(1) A decision under subsection 203(4) or paragraph 205(1)(b) (the
7
review decision) to vary a decision or to set aside a decision and
8
substitute a new decision comes into force on the day that would
9
give full effect to the review decision.
10
(2) However, a decision comes into force immediately on the giving of
11
the decision if it is a decision under subsection 203(4) or paragraph
12
205(1)(b) to:
13
(a) vary an employer determination decision or an employer
14
funding amount decision; or
15
(b) set aside an employer determination decision or an employer
16
funding amount decision and substitute a new decision.
17
211 Internal review--notice of decision on review of claimant
18
decision
19
Scope
20
(1) This section applies if a person (the decision-maker) makes a
21
decision under subsection 203(4) or paragraph 205(1)(b) in relation
22
to a claimant decision.
23
Notice
24
(2) The decision-maker must give written notice of the decision to:
25
(a) any natural person (other than an employer) if the
26
decision-maker is satisfied that his or her interests are
27
affected by the decision; and
28
(b) for a decision under paragraph 205(1)(b) in response to an
29
application--the applicant.
30
Review of decisions Chapter 5
Internal review of decisions Part 5-1
Internal review of decisions Division 2
Section 212
Paid Parental Leave Bill 2010 No. , 2010 167
(3) If the decision relates to a child, the decision-maker must also give
1
written notice of the decision to:
2
(a) any natural person who has made a claim in relation to the
3
child; and
4
(b) any natural person who has notified the Secretary that he or
5
she intends to make a claim in relation to the child, if the
6
decision-maker is satisfied that the claim has or would have a
7
reasonable prospect of success.
8
(4) A notice under subsection (2) or (3) given to a person in relation to
9
a decision must include:
10
(a) a statement to the effect that the person may, subject to this
11
Act, apply to the SSAT for review of the decision; and
12
(b) a statement to the effect that, if the person is dissatisfied with
13
the decision of the SSAT, application may, subject to the
14
AAT Act, be made to the AAT for review of the decision of
15
the SSAT.
16
(5) Subsection (4) does not apply in relation to a decision referred to in
17
subsection 215(2).
18
Note:
Subsection 215(2) excludes certain claimant decisions from SSAT
19
review.
20
(6) A notice under subsection (2) or (3) given to a particular person in
21
relation to a decision may also, if the decision-maker considers it
22
appropriate, include a statement that does one or more of the
23
following, in whole or in part:
24
(a) sets out the reasons for the decision;
25
(b) sets out the findings by the decision-maker on material
26
questions of fact;
27
(c) refers to the evidence or other material on which those
28
findings were based.
29
212 Internal review--notice of decision relating to employer
30
Scope
31
(1) This section applies if a person (the decision-maker) makes a
32
decision under subsection 203(4) or paragraph 205(1)(b) in relation
33
to:
34
Chapter 5 Review of decisions
Part 5-1 Internal review of decisions
Division 2 Internal review of decisions
Section 212
168 Paid Parental Leave Bill 2010 No. , 2010
(a) an employer funding amount decision; or
1
(b) any other decision under Part 3-2 (which deals with payment
2
of instalments by employers); or
3
(c) an employer determination decision; or
4
(d) any other decision under Part 3-5 (which deals with employer
5
determinations); or
6
(e) a decision under Part 4-2 (which deals with compliance); or
7
(f) any other decision under this Act that directly affects the
8
interests of an employer.
9
(2) To avoid doubt, paragraph (1)(f) does not apply to a decision if the
10
only effect of the decision on the interests of an employer is that
11
the decision could result in an employer determination for the
12
employer being made, varied, set aside or revoked.
13
Notice
14
(3) The decision-maker must give written notice of the decision to the
15
employer concerned.
16
(4) The notice must include a statement that:
17
(a) sets out the reasons for the decision; and
18
(b) sets out the findings by the decision-maker on material
19
questions of fact; and
20
(c) refers to the evidence or other material on which those
21
findings were based.
22
(5) A notice in relation to a decision referred to in paragraph (1)(a) or
23
(1)(c) must include a statement to the effect that the employer may,
24
subject to this Act, apply to the SSAT for review of the decision.
25
Review of decisions Chapter 5
Review by the Social Security Appeals Tribunal Part 5-2
Guide to this Part Division 1
Section 213
Paid Parental Leave Bill 2010 No. , 2010 169
Part 5-2--Review by the Social Security Appeals
1
Tribunal
2
Division 1--Guide to this Part
3
213 Guide to this Part
4
This Part is about the review by the Social Security Appeals
5
Tribunal (SSAT) of decisions that have been reviewed under
6
Part 5-1, and of decisions made personally by particular PPL
7
agency heads (which are not subject to internal review).
8
Division 2 allows people whose interests are affected by claimant
9
decisions to apply for SSAT review.
10
Division 3 allows employers to apply for SSAT review of
11
employer determination decisions and employer funding amount
12
decisions.
13
214 SSAT objective under this Act
14
In carrying out its functions under this Act, the SSAT must pursue
15
the objective of providing a mechanism of review that is fair, just,
16
economical, informal and quick.
17
18
Chapter 5 Review of decisions
Part 5-2 Review by the Social Security Appeals Tribunal
Division 2 Review by SSAT of claimant decisions
Section 215
170 Paid Parental Leave Bill 2010 No. , 2010
Division 2--Review by SSAT of claimant decisions
1
215 Application of this Division
2
(1) This Division applies to the following decisions:
3
(a) if a claimant decision has been affirmed under paragraph
4
203(4)(a) or subparagraph 205(1)(b)(i)--the claimant
5
decision as affirmed;
6
(b) if a claimant decision has been varied under paragraph
7
203(4)(b) or subparagraph 205(1)(b)(ii)--the claimant
8
decision as varied;
9
(c) if a claimant decision has been set aside under paragraph
10
203(4)(c) or subparagraph 205(1)(b)(iii) and substituted with
11
a new decision--the new decision;
12
(d) a claimant decision made personally by a PPL agency head.
13
(2) However, this Division does not apply to any of the following
14
decisions:
15
(a) a decision under one of the following provisions (which deal
16
with the making of claims, the form and manner of claims,
17
the form and manner of notices etc.):
18
(i)
subsection
18(4);
19
(ii)
subparagraph
25(1)(c)(ii);
20
(iii) subsections 53(2), (3) and (4);
21
(iv)
section
56;
22
(v)
subsection
61(2);
23
(vi)
paragraph
109(2)(a);
24
(vii)
subsection
110(1);
25
(viii)
paragraph
120(2)(a);
26
(ix)
subsection
125(4);
27
(x)
paragraph
286(2)(b);
28
(xi)
paragraph
288(2)(b);
29
(xii)
paragraph
289(2)(b);
30
(xiii)
subsection
289(5);
31
(b) a decision under subsection 69(2) (which deals with
32
deductions relating to child support);
33
Review of decisions Chapter 5
Review by the Social Security Appeals Tribunal Part 5-2
Review by SSAT of claimant decisions Division 2
Section 216
Paid Parental Leave Bill 2010 No. , 2010 171
(c) a decision under section 117, 118 or 119 (which deal with
1
gathering information from any person);
2
(d) a decision relating to the Secretary's power under section 263
3
to settle proceedings before the AAT;
4
(e) a decision under the PPL rules, if the PPL rules state that this
5
Division does not apply to the decision;
6
(f) a decision under the regulations, if the regulations state that
7
this Division does not apply to the decision.
8
(3) A decision to which this Division applies is an SSAT reviewable
9
claimant decision.
10
216 SSAT review of claimant decision--application for review
11
(1) A person whose interests are affected by an SSAT reviewable
12
claimant decision may apply to the SSAT for review of the
13
decision.
14
Note:
See section 217 (which deals with making an application).
15
(2) An application under subsection (1) may only be made:
16
(a) within 28 days after the day the SSAT reviewable claimant
17
decision was made; or
18
(b) if the SSAT is satisfied that a longer period should apply--
19
within the longer period.
20
(3) A person cannot make an application under subsection (1) in the
21
person's capacity as an employer.
22
217 SSAT review of claimant decision--making of application
23
(1) A person may apply to the SSAT for review of an SSAT
24
reviewable claimant decision by:
25
(a) sending or delivering a written application to:
26
(i) an office of the SSAT; or
27
(ii) an office of the Department; or
28
(iii) if the decision was made by the CEO or an employee of
29
the Commonwealth Services Delivery Agency--an
30
office of the Agency; or
31
Chapter 5 Review of decisions
Part 5-2 Review by the Social Security Appeals Tribunal
Division 2 Review by SSAT of claimant decisions
Section 218
172 Paid Parental Leave Bill 2010 No. , 2010
(iv) if the decision was made by the CEO or an employee of
1
Medicare Australia--an office of Medicare Australia; or
2
(b) going to an office of the SSAT and making an oral
3
application; or
4
(c) contacting an office of the SSAT by telephone and making an
5
oral application.
6
(2) If a person makes an oral application in accordance with
7
paragraph (1)(b) or (c), the person receiving the oral application
8
must make a written record of the details of the oral application
9
and note on the record the day on which the application is made.
10
(3) If a written record of an oral application is made in accordance
11
with subsection (2), Part 5-3 has effect as if the written record were
12
a written application.
13
(4) An application may include a statement of the reasons for seeking
14
a review of the decision.
15
218 SSAT review of claimant decision--review following application
16
If a person applies to the SSAT for review of an SSAT reviewable
17
claimant decision, the SSAT must:
18
(a) affirm the decision; or
19
(b) vary the decision; or
20
(c) set the decision aside and:
21
(i) substitute a new decision; or
22
(ii) send the matter back to a PPL agency head for
23
reconsideration in accordance with any directions or
24
recommendations of the SSAT.
25
219 SSAT review of claimant decision--powers of the SSAT
26
The SSAT may, for the purposes of reviewing a decision under this
27
Division, exercise all the powers and discretions that are conferred
28
by this Act on the Secretary.
29
Review of decisions Chapter 5
Review by the Social Security Appeals Tribunal Part 5-2
Review by SSAT of claimant decisions Division 2
Section 220
Paid Parental Leave Bill 2010 No. , 2010 173
220 SSAT review of claimant decision--when SSAT decision comes
1
into force
2
A decision of the SSAT under this Division to vary a decision or to
3
set aside a decision and substitute a new decision comes into force
4
on the day that would give full effect to the decision of the SSAT.
5
221 SSAT review of claimant decision--variation of decision before
6
review completed
7
(1) If an officer varies an SSAT reviewable claimant decision after an
8
application has been made to the SSAT for review of the decision
9
but before the determination of the review, the application for
10
review is taken to be an application for review of the decision as
11
varied.
12
(2) If an officer sets aside an SSAT reviewable claimant decision and
13
substitutes a new decision after an application has been made to the
14
SSAT for review of the original decision but before the
15
determination of the review, the application for review is taken to
16
be an application for review of the new decision.
17
(3) Subsection (4) applies if:
18
(a) a person applies to the SSAT for review of an SSAT
19
reviewable claimant decision; and
20
(b) before determination of the review, an officer varies the
21
decision or sets it aside and substitutes a new decision.
22
(4) The person may either:
23
(a) proceed with the application for review of the decision as
24
varied or the new decision; or
25
(b) withdraw the application under section 251.
26
222 SSAT review of claimant decision--parties to review
27
(1) The parties to a review by the SSAT under this Division are:
28
(a) the applicant; and
29
(b) the Secretary; and
30
Chapter 5 Review of decisions
Part 5-2 Review by the Social Security Appeals Tribunal
Division 2 Review by SSAT of claimant decisions
Section 222
174 Paid Parental Leave Bill 2010 No. , 2010
(c) if the claimant decision was made by the CEO or an
1
employee of the Commonwealth Services Delivery
2
Agency--the CEO of the Agency; and
3
(d) if the claimant decision was made by the CEO or an
4
employee of Medicare Australia--the CEO of Medicare
5
Australia; and
6
(e) any other person who has been made a party to the review
7
under subsection (3).
8
(2) If a person has applied under section 216 for review of an SSAT
9
reviewable claimant decision, any other person whose interests
10
(other than interests the person has in the person's capacity as an
11
employer) are affected by the decision may apply, in writing, to the
12
Principal Member to be made a party to the review.
13
(3) The Principal Member may direct that a person who has applied
14
under subsection (2) be made a party to the review.
15
Principal Member may remove parties
16
(4) The Principal Member may direct that a party to a review no longer
17
be a party to the review if:
18
(a) the party consents; or
19
(b) the Principal Member is satisfied that the party does not
20
intend to participate in or proceed with the review:
21
(i) after having communicated with the party; or
22
(ii) after having made reasonable attempts to communicate
23
with the party and having failed to do so; or
24
(c) the party contravenes a direction or order of the SSAT or of
25
the Principal Member given in relation to the review; or
26
(d) the party fails to attend the hearing.
27
28
Review of decisions Chapter 5
Review by the Social Security Appeals Tribunal Part 5-2
Review by SSAT of employer decisions Division 3
Section 223
Paid Parental Leave Bill 2010 No. , 2010 175
Division 3--Review by SSAT of employer decisions
1
223 Application of this Division
2
(1) This Division applies to the following decisions:
3
(a) if an employer determination decision or an employer
4
funding amount decision has been affirmed under Part 5-1--
5
the decision as affirmed;
6
(b) if an employer determination decision or an employer
7
funding amount decision has been varied under Part 5-1--the
8
decision as varied;
9
(c) if an employer determination decision or an employer
10
funding amount decision has been set aside and substituted
11
with a new decision under Part 5-1--the new decision;
12
(d) an employer determination decision or an employer funding
13
amount decision made personally by a PPL agency head.
14
Note:
Part 5-1 deals with internal review.
15
(2) A decision to which this Division applies is an SSAT reviewable
16
employer decision.
17
224 SSAT review of employer decision--application for review
18
(1) An employer may apply to the SSAT for review of an SSAT
19
reviewable employer decision that relates to the employer and a
20
person if the decision is an employer determination decision and
21
the employer believes that:
22
(a)
both:
23
(i) a condition in paragraph 101(1)(b) or (c) is not satisfied
24
in relation to the employer determination; and
25
(ii) the employer has not made an election under
26
section 109 that applies to the person; or
27
(b) a condition in paragraph 101(1)(d) or (e) is not satisfied in
28
relation to the employer determination.
29
Note 1:
See section 225 (which deals with making an application).
30
Note 2:
The conditions in paragraphs 101(1)(b) to (e) relate to the employment
31
by an employer of someone to whom parental leave pay is payable.
32
Chapter 5 Review of decisions
Part 5-2 Review by the Social Security Appeals Tribunal
Division 3 Review by SSAT of employer decisions
Section 225
176 Paid Parental Leave Bill 2010 No. , 2010
Note 3:
Section 109 allows an employer to elect to pay instalments to an
1
employee, a class of employees or all employees of the employer.
2
Subsection 101(2) deals with the application of paragraphs 101(1)(b)
3
and (c) if the employer has made an election under section 109 that
4
applies to the person.
5
(2) An employer may apply to the SSAT for review of an SSAT
6
reviewable employer decision that relates to the employer if the
7
decision is an employer funding amount decision.
8
Note:
See section 225 (which deals with making an application).
9
(3) An application under subsection (1) or (2) may only be made
10
within 14 days after the day on which the SSAT reviewable
11
employer decision was made.
12
225 SSAT review of employer decision--making of application
13
(1) An employer may apply to the SSAT for review of an SSAT
14
reviewable employer decision by sending or delivering a written
15
application to an office of the SSAT.
16
(2) The application must:
17
(a) be in the form approved by the Principal Member; and
18
(b) if the application is for review of an employer determination
19
decision:
20
(i) specify the condition or conditions that the employer
21
believes are not satisfied; and
22
(ii) if paragraph 224(1)(a) applies to the application--state
23
whether the employer believes that an election under
24
section 109 applies to the person; and
25
(c) be accompanied by a statutory declaration verifying the
26
application; and
27
(d) be accompanied by any other documents required or allowed
28
by the form.
29
(3) An application may include a statement of the reasons for seeking
30
a review of the decision.
31
Review of decisions Chapter 5
Review by the Social Security Appeals Tribunal Part 5-2
Review by SSAT of employer decisions Division 3
Section 226
Paid Parental Leave Bill 2010 No. , 2010 177
226 SSAT review of employer decision--review following
1
application
2
If an employer applies to the SSAT for review of an SSAT
3
reviewable employer decision, the SSAT must:
4
(a) affirm the decision; or
5
(b) vary the decision; or
6
(c) set the decision aside and:
7
(i) substitute a new decision; or
8
(ii) send the matter back to a PPL agency head for
9
reconsideration in accordance with any directions or
10
recommendations of the SSAT.
11
227 SSAT review of employer decision--powers of the SSAT
12
The SSAT may, for the purposes of reviewing a decision under this
13
Division, exercise all the powers and discretions that are conferred
14
by this Act on the Secretary.
15
228 SSAT review of employer decision--when SSAT decision comes
16
into force
17
A decision of the SSAT under this Division comes into force
18
immediately on the giving of the decision.
19
229 SSAT review of employer decision--variation of decision before
20
review completed
21
(1) If an officer varies an SSAT reviewable employer decision after an
22
application has been made to the SSAT for review of the decision
23
but before determination of the review, the application for review
24
is taken to be an application for review of the decision as varied.
25
(2) If an officer sets aside an SSAT reviewable employer decision and
26
substitutes a new decision after an application has been made to the
27
SSAT for review of the original decision but before the
28
determination of the review, the application for review is taken to
29
be an application for review of the new decision.
30
(3) Subsection (4) applies if:
31
Chapter 5 Review of decisions
Part 5-2 Review by the Social Security Appeals Tribunal
Division 3 Review by SSAT of employer decisions
Section 230
178 Paid Parental Leave Bill 2010 No. , 2010
(a) an employer applies to the SSAT for review of an SSAT
1
reviewable employer decision; and
2
(b) before determination of the review, an officer varies the
3
decision or sets it aside and substitutes a new decision.
4
(4) The employer may either:
5
(a) proceed with the application for review of the decision as
6
varied or the new decision; or
7
(b) withdraw the application under section 251.
8
230 SSAT review of employer decision--parties to review
9
The parties to a review by the SSAT under this Division are:
10
(a) the employer; and
11
(b) the Secretary; and
12
(c) if the relevant decision was made by the CEO or an employee
13
of the Commonwealth Services Delivery Agency--the CEO
14
of the Agency; and
15
(d) if the relevant decision was made by the CEO or an employee
16
of Medicare Australia--the CEO of Medicare Australia.
17
18
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Guide to this Part Division 1
Section 231
Paid Parental Leave Bill 2010 No. , 2010 179
Part 5-3--Procedures for review by the Social
1
Security Appeals Tribunal
2
Division 1--Guide to this Part
3
231 Guide to this Part
4
This Part is about the procedures to be followed when the Social
5
Security Appeals Tribunal (SSAT) is reviewing a decision.
6
Division 2 requires the Secretary and the Principal Member to
7
prepare for the review, arrange for a hearing and notify parties and
8
potential parties.
9
Division 3 sets out how people other than PPL agency heads may
10
make submissions to the SSAT.
11
Division 4 sets out how PPL agency heads may make submissions
12
to the SSAT.
13
Division 5 contains other evidentiary provisions, including the
14
Principal Member's power to obtain information.
15
Division 6 provides for pre-hearing conferences to be held. A
16
pre-hearing conference may result in the SSAT not needing to
17
conduct the review.
18
Division 7 provides for the hearing of the review.
19
Division 8 deals with miscellaneous procedural matters.
20
Division 9 requires the SSAT to give notice of its decision on
21
review.
22
Division 10 allows obvious errors in decisions and statements of
23
reasons to be corrected.
24
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 1 Guide to this Part
Section 231
180 Paid Parental Leave Bill 2010 No. , 2010
Division 11 allows a party to an SSAT review of an employer
1
decision to appeal to the Federal Court, on a question of law, in the
2
same way that a party to an AAT review may do so. It also allows
3
the SSAT to refer questions of law to the Federal Court.
4
5
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Preliminary procedures Division 2
Section 232
Paid Parental Leave Bill 2010 No. , 2010 181
Division 2--Preliminary procedures
1
232 Procedure on receipt of application for review by SSAT
2
(1) If an application for review by the SSAT of a decision is sent or
3
delivered to an office of the Department, of the Commonwealth
4
Services Delivery Agency or of Medicare Australia, the Secretary
5
must send the application to the Principal Member as soon as
6
practicable and, in any case, not later than 7 days after the
7
application is received at the office.
8
(2)
If:
9
(a) an application for review of a decision is sent or delivered to
10
an office of the SSAT; or
11
(b) the Secretary sends an application for review of a decision to
12
the Principal Member in accordance with subsection (1);
13
the Principal Member must give the applicant and the Secretary
14
written notice that the application has been received.
15
(3) Within 28 days after receiving notice of the making of an
16
application from the Principal Member, the Secretary must send to
17
the Principal Member:
18
(a) a statement about the decision under review that:
19
(i) sets out the findings of fact made by the person who
20
made the decision; and
21
(ii) refers to the evidence on which those findings were
22
based; and
23
(iii) gives the reasons for the decision; and
24
(b) the original or a copy of every document or part of a
25
document that:
26
(i) is in the possession, or under the control, of the
27
Secretary; and
28
(ii) relates to the applicant; and
29
(iii) is relevant to the review of the decision.
30
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 2 Preliminary procedures
Section 233
182 Paid Parental Leave Bill 2010 No. , 2010
(4) If the Principal Member asks the Secretary to send the statement
1
and documents referred to in subsection (3) by a day earlier than
2
the day fixed by that subsection, the Secretary must take all
3
reasonable steps to comply with the Principal Member's request.
4
(5)
If:
5
(a) after the end of the period referred to in subsection (3) but
6
before the determination of the review, the Secretary obtains
7
possession of a document; and
8
(b) the Secretary considers that the document or a part of the
9
document is relevant to the review; and
10
(c) a copy of the document or the part of the document has not
11
been sent to the Principal Member in accordance with
12
subsection (3);
13
the Secretary must send a copy of the document or the part of the
14
document to an office of the SSAT as soon as practicable after
15
obtaining possession of the document.
16
(6) If the Secretary must provide the Principal Member with a
17
document under this section, the Secretary must provide the
18
Principal Member with:
19
(a) if the Principal Member requests the Secretary to provide a
20
specified number of copies of the document--that number of
21
copies of the document; or
22
(b) otherwise--2 copies of the document.
23
233 Parties to be given statements about the decision under review
24
(1) Within 28 days after receiving the notice under subsection 232(2),
25
the Secretary must give each party to the review a copy of the
26
statement and documents referred to in subsection 232(3).
27
(2) As soon as practicable after the Secretary sends a document to an
28
office of the SSAT under subsection 232(5), the Secretary must
29
give each party to the review a copy of the document.
30
(3) The Principal Member may direct, in writing, a person who is
31
required to be given a copy of a statement or a document in
32
accordance with subsection (1) or (2):
33
(a) not to disclose information in the statement or document; or
34
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Preliminary procedures Division 2
Section 234
Paid Parental Leave Bill 2010 No. , 2010 183
(b) not to disclose information in the statement or document
1
except in the circumstances, or for the purposes, specified in
2
the direction.
3
Offence
4
(4) A person commits an offence if:
5
(a) the person engages in conduct; and
6
(b) the conduct contravenes a direction under subsection (3).
7
Penalty for contravention of this subsection: Imprisonment for 2
8
years.
9
234 Arrangements for hearing of application
10
(1) If an application is made to the SSAT for review of a decision, the
11
Principal Member must fix a day, time and place for the hearing of
12
the application.
13
(2) The Principal Member must give the applicant and any other
14
parties to the review written notice of the day, time and place fixed
15
for the hearing of the application.
16
(3) The notice under subsection (2) must be given a reasonable time
17
before the day fixed for the hearing.
18
235 Notice of application to person affected by SSAT reviewable
19
claimant decision
20
(1)
If:
21
(a) an application has been made to the SSAT for review of an
22
SSAT reviewable claimant decision; and
23
(b) the Principal Member is satisfied that the interests of a person
24
(other than interests the person has in the person's capacity as
25
an employer) who is not a party to the review are affected by
26
the decision;
27
the Principal Member must take all reasonable steps to give the
28
person written notice that an application has been made to the
29
SSAT for review of the decision.
30
(2)
The
notice:
31
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 2 Preliminary procedures
Section 235
184 Paid Parental Leave Bill 2010 No. , 2010
(a) must be in writing; and
1
(b) must include notice of the person's right under section 222 to
2
apply to the Principal Member to be added as a party to the
3
review; and
4
(c) may be given at any time before the determination of the
5
review.
6
(3) The Principal Member must give each party to the review a copy of
7
the notice.
8
9
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Submissions from parties other than PPL agency heads Division 3
Section 236
Paid Parental Leave Bill 2010 No. , 2010 185
Division 3--Submissions from parties other than PPL
1
agency heads
2
236 Division does not apply in relation to PPL agency heads
3
This Division does not apply in relation to a party to a review of a
4
decision who is a PPL agency head.
5
237 Submissions to SSAT
6
(1) A party to a review of a decision may make oral or written
7
submissions to the SSAT, or both oral and written submissions.
8
Note 1:
The Principal Member may direct that a hearing be conducted without
9
oral submissions (see section 238).
10
Note 2:
Also, a hearing may proceed without oral submissions from a party in
11
the circumstances set out in section 239.
12
(2) The party may have another person make submissions to the SSAT
13
on behalf of the party.
14
(3) The Principal Member may determine that submissions to the
15
SSAT by the party or the party's representative are to be made by
16
telephone or by means of other electronic communications
17
equipment.
18
(4) Without limiting subsection (3), the Principal Member may make a
19
determination under subsection (3) in relation to an application if
20
(a) the application is urgent; or
21
(b) the party lives in a remote area and unreasonable expense
22
would be incurred if the party or the party's representative
23
had to travel to the place at which the hearing is to be held; or
24
(c) the party has failed to attend the hearing and has not
25
indicated that he or she intends to attend the hearing; or
26
(d) the party is unable to attend the hearing because of illness or
27
infirmity.
28
(5) If the party is not proficient in English, the Principal Member may
29
give directions in relation to the use of an interpreter in relation to
30
the hearing of the review.
31
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 3 Submissions from parties other than PPL agency heads
Section 238
186 Paid Parental Leave Bill 2010 No. , 2010
238 SSAT hearings on written submissions only
1
(1) The Principal Member may direct that a hearing be conducted
2
without oral submissions from the parties if:
3
(a) the Principal Member considers that the review could be
4
determined fairly on the basis of written submissions by all
5
the parties to the review; and
6
(b) all parties to the review consent to the hearing being
7
conducted without oral submissions.
8
(2) If the Principal Member gives a direction under subsection (1), the
9
Principal Member must give each of the parties to the review
10
written notice:
11
(a) informing the party of the direction; and
12
(b) inviting the party to submit written submissions; and
13
(c) specifying the address to which the written submissions are
14
to be delivered; and
15
(d) specifying the time within which the written submissions are
16
to be delivered.
17
(3) The time specified under paragraph (2)(d) must be such as to allow
18
a reasonable period for the parties to make written submissions.
19
(4) Despite subsection (1), the SSAT, as constituted for the hearing,
20
may, if it considers necessary after taking into account the written
21
submissions made by the parties, make an order permitting the
22
parties to make oral submissions to the SSAT at the hearing of the
23
application for review.
24
239 SSAT hearings without oral submissions by party
25
(1) If a party to a review of a decision has informed the Principal
26
Member that the party does not intend to make oral submissions to
27
the SSAT, the SSAT may proceed to hear the application for
28
review without oral submissions from the party.
29
(2)
If:
30
(a) the Principal Member has determined that oral submissions
31
to the SSAT by a party or a party's representative are to be
32
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Submissions from parties other than PPL agency heads Division 3
Section 239
Paid Parental Leave Bill 2010 No. , 2010 187
made by telephone or by means of other electronic
1
communications equipment; and
2
(b) on the day fixed for the hearing the presiding member has
3
been unable to contact the party or the party's representative
4
(as the case may be) after taking all reasonable steps to do so;
5
the Principal Member may authorise the SSAT to proceed to hear
6
the application without oral submissions from the party or the
7
party's representative (as the case may be).
8
(3)
If:
9
(a) the Principal Member has not determined that oral
10
submissions to the SSAT by a party or a party's
11
representative are to be made by telephone or by means of
12
other electronic communications equipment; and
13
(b) the party or the party's representative (as the case may be)
14
does not attend the hearing at the time fixed for the hearing;
15
the Principal Member may authorise the SSAT to proceed to hear
16
the application without oral submissions from the party or the
17
party's representative (as the case may be).
18
(4) If the Principal Member gives an authorisation under
19
subsection (2) or (3), the SSAT may proceed to hear the
20
application in accordance with the authorisation.
21
(5) The Principal Member may revoke an authorisation under
22
subsection (2) or (3).
23
24
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 4 Submissions from PPL agency heads
Section 240
188 Paid Parental Leave Bill 2010 No. , 2010
Division 4--Submissions from PPL agency heads
1
240 Submissions from PPL agency heads
2
(1) A PPL agency head who is a party to a review of a decision may
3
make written submissions to the SSAT.
4
PPL agency head may request permission to make oral
5
submissions etc.
6
(2) The PPL agency head may, by writing, request the Principal
7
Member for permission to make:
8
(a) oral submissions to the SSAT; or
9
(b) both oral and written submissions to the SSAT.
10
The request must explain how such submissions would assist the
11
SSAT.
12
(3) The Principal Member may, by writing, grant the request if, in the
13
opinion of the Principal Member taking into account the objective
14
laid down by section 214, such submissions would assist the
15
SSAT.
16
SSAT may order PPL agency head to make oral submissions etc.
17
(4) The Principal Member may order the PPL agency head to make:
18
(a) oral submissions to the SSAT; or
19
(b) both oral and written submissions to the SSAT;
20
if, in the opinion of the Principal Member taking into account the
21
objective laid down by section 214, such submissions would assist
22
the SSAT.
23
Oral submissions by telephone etc.
24
(5) For the purposes of subsections (3) and (4), the Principal Member
25
may determine that oral submissions to the SSAT by the PPL
26
agency head are to be made by telephone or by means of other
27
electronic communications equipment.
28
(6) Subsection (5) does not limit subsection (3) or (4).
29
30
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Other evidence provisions Division 5
Section 241
Paid Parental Leave Bill 2010 No. , 2010 189
Division 5--Other evidence provisions
1
241 Evidence on oath or affirmation
2
The SSAT may take evidence on oath or affirmation for the
3
purposes of a review of a decision.
4
242 Provision of further information by Secretary
5
(1) The Principal Member may ask the Secretary to provide the SSAT
6
with information or a document the Secretary has and that is
7
relevant to the review of a decision.
8
(2) The Secretary must comply with a request under subsection (1) as
9
soon as practicable and, in any event, not later than 14 days after
10
the request is made.
11
243 Exercise by Secretary of information-gathering powers
12
(1) The Principal Member may ask the Secretary to exercise the
13
Secretary's powers under section 117 (which deals with the
14
Secretary's general power to obtain information) if the Principal
15
Member is satisfied that a person has information, or has custody
16
or control of a document, that is relevant to the review of a
17
decision.
18
(2) The Secretary must comply with a request under subsection (1) as
19
soon as practicable and, in any event, within 7 days after the
20
request is made.
21
244 Power to obtain information
22
(1) If the Principal Member reasonably believes that it is necessary for
23
the purposes of a review, he or she may, by written notice, direct a
24
person:
25
(a) to give to the SSAT, within the period and in the manner
26
specified in the notice, information that is relevant to the
27
review; or
28
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 5 Other evidence provisions
Section 244
190 Paid Parental Leave Bill 2010 No. , 2010
(b) to produce to the SSAT, within the period and in the manner
1
specified in the notice, documents that are relevant to the
2
review; or
3
(c) to attend a hearing and answer questions:
4
(i) at a reasonable time specified in the notice; and
5
(ii) at a reasonable place specified in the notice.
6
(2) The period specified in a notice given under paragraph (1)(a) or (b)
7
must be at least 14 days after the notice is given.
8
Offence
9
(3) A person commits an offence if:
10
(a) the person engages in conduct; and
11
(b) the conduct contravenes a direction under subsection (1).
12
Penalty: Imprisonment for 6 months.
13
Notice to set out the effect of offence provisions
14
(4) A notice under subsection (1) must set out the effect of the
15
following provisions:
16
(a)
subsection
(3);
17
(b) section 137.1 of the Criminal Code (about giving false or
18
misleading information);
19
(c) section 137.2 of the Criminal Code (about producing false or
20
misleading documents).
21
Payment of expenses
22
(5) If a person is required under this section to attend a hearing, the
23
SSAT must determine that the Commonwealth must pay the
24
reasonable costs that are:
25
(a) incurred by the person for travel and accommodation in
26
relation to the hearing; and
27
(b) specified in the determination.
28
(6) If the SSAT makes a determination under subsection (5), the costs
29
to which the determination relates are payable by the
30
Commonwealth.
31
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Pre-hearing conferences Division 6
Section 245
Paid Parental Leave Bill 2010 No. , 2010 191
Division 6--Pre-hearing conferences
1
245 Pre-hearing conferences
2
(1) Before the hearing of a review commences, the Principal Member
3
may convene one or more conferences with the parties to the
4
review if he or she considers that it would assist in the conduct and
5
consideration of the review to do so.
6
(2) At a conference, the Principal Member may:
7
(a) fix a day or days for the hearing; and
8
(b) give directions about the time within which submissions are
9
to be made to the SSAT; and
10
(c) give directions about the time within which evidence is to be
11
brought before the SSAT; and
12
(d) give directions about what evidence is to be brought before
13
the SSAT.
14
(3) Paragraph (2)(d) does not limit the evidence that may be brought
15
before the SSAT.
16
Restrictions on disclosure of information obtained at a conference
17
(4) The Principal Member may direct, in writing, a person who is
18
present at a conference:
19
(a) not to disclose information obtained by the person at the
20
conference; or
21
(b) not to disclose information obtained by the person at the
22
conference except in the circumstances, or for the purposes,
23
specified in the direction.
24
(5) A person commits an offence if:
25
(a) the person engages in conduct; and
26
(b) the conduct contravenes a direction under subsection (4).
27
Penalty for contravention of this subsection: Imprisonment for 2
28
years.
29
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 6 Pre-hearing conferences
Section 246
192 Paid Parental Leave Bill 2010 No. , 2010
246 Powers of SSAT if parties reach agreement
1
(1)
If:
2
(a) at a pre-hearing conference under section 245 with the parties
3
to a review, the parties agree to the terms of a decision of the
4
SSAT:
5
(i) in the review; or
6
(ii) in relation to a part of the review, or a matter arising out
7
of the review;
8
that would be acceptable to the parties; and
9
(b) before the hearing of the review commences, the terms of the
10
agreement are:
11
(i) put in writing; and
12
(ii) signed by or on behalf of the parties; and
13
(iii) lodged with the SSAT; and
14
(c) before the hearing of the review commences, the SSAT is
15
satisfied that a decision in those terms, or consistent with
16
those terms, would be within the powers of the SSAT;
17
the SSAT may act in accordance with whichever of subsection (2)
18
or (3) is relevant.
19
(2) If the agreement reached is an agreement as to the terms of a
20
decision of the SSAT in the review, the SSAT may make a
21
decision in accordance with those terms without holding a hearing
22
of the review.
23
(3) If the agreement relates to a part of the review, or a matter arising
24
out of the review, the SSAT may in its decision in the review give
25
effect to the terms of the agreement without dealing at the hearing
26
of the review with the part or matter to which the agreement
27
relates.
28
29
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
The hearing Division 7
Section 247
Paid Parental Leave Bill 2010 No. , 2010 193
Division 7--The hearing
1
247 Hearing procedure
2
(1) The SSAT, in reviewing a decision:
3
(a) is not bound by legal technicalities, legal forms or rules of
4
evidence; and
5
(b) must act as speedily as a proper consideration of the review
6
allows; and
7
(c) in determining what a proper consideration of the review
8
requires, must take into account the objective laid down by
9
section 214.
10
(2) The SSAT may inform itself on any matter relevant to a review of
11
a decision in any manner it considers appropriate.
12
248 Hearing in private
13
(1) The hearing of a review must be in private.
14
(2) The Principal Member may give directions, in writing or
15
otherwise, as to the persons who may be present at any hearing of a
16
review.
17
(3) In giving directions under subsection (2), the Principal Member
18
must take into account the wishes of the parties and the need to
19
protect their privacy.
20
249 Restrictions on disclosure of information obtained at hearing
21
(1) The Principal Member may direct, in writing, a person who is
22
present at the hearing of a review:
23
(a) not to disclose information obtained by the person in the
24
course of the hearing; or
25
(b) not to disclose information obtained by the person in the
26
course of the hearing except in the circumstances, or for the
27
purposes, specified in the direction.
28
(2) A person commits an offence if:
29
(a) the person engages in conduct; and
30
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 7 The hearing
Section 249
194 Paid Parental Leave Bill 2010 No. , 2010
(b) the conduct contravenes a direction under subsection (1).
1
Penalty for contravention of this subsection: Imprisonment for 2
2
years.
3
4
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Other procedural matters Division 8
Section 250
Paid Parental Leave Bill 2010 No. , 2010 195
Division 8--Other procedural matters
1
250 Adjournment of SSAT hearings
2
(1) The SSAT may adjourn the hearing of a review of a decision from
3
time to time.
4
(2) Without limiting subsection (1), the SSAT may refuse to adjourn
5
the hearing of a review if:
6
(a) the hearing has already been adjourned on 2 or more
7
occasions; or
8
(b) the SSAT is satisfied that to grant an adjournment would be
9
inconsistent with the pursuit of the objective laid down by
10
section 214.
11
251 Withdrawal of application for review
12
(1) An applicant for review of a decision may withdraw the application
13
at any time.
14
(2) An applicant may withdraw an application by:
15
(a) sending by any means, or delivering, written notice of
16
withdrawal of the application to:
17
(i) an office of the SSAT; or
18
(ii) an office of the Department; or
19
(iii) an office of another Commonwealth agency, where the
20
Secretary has approved the office for the purposes of
21
this subparagraph; or
22
(b) going to an office of the SSAT and orally withdrawing the
23
application; or
24
(c) contacting an office of the SSAT by telephone and orally
25
withdrawing the application.
26
(3) If a person withdraws an application in accordance with
27
paragraph (2)(b) or (c), the person who receives the oral
28
withdrawal must make a written record of the day on which the
29
withdrawal was made.
30
(4) If a person withdraws an application by sending or delivering
31
written notice of withdrawal to an office of a Commonwealth
32
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 8 Other procedural matters
Section 252
196 Paid Parental Leave Bill 2010 No. , 2010
agency, the head of the agency must send a notice of the
1
withdrawal to the Principal Member as soon as practicable and, in
2
any event, not later than 7 days after the notice of withdrawal is
3
received at the office of the agency.
4
252 Dismissal of an application
5
(1)
If:
6
(a) a person or an employer makes an application to the SSAT
7
for review of a decision; and
8
(b) the Principal Member is satisfied:
9
(i) after having communicated with the applicant; or
10
(ii) after having made reasonable attempts to communicate
11
with the applicant and having failed to do so;
12
that the applicant does not intend to proceed with the
13
application;
14
the Principal Member may dismiss the application.
15
(2) If the Principal Member dismisses an application under
16
subsection (1), the application is taken to have been withdrawn
17
when the application was dismissed.
18
253 Presiding member at SSAT hearing
19
If the SSAT is constituted by 2 or more members for the purposes
20
of the review of a decision, the Principal Member must designate
21
one of those members as the member who must preside at the
22
hearing of the review.
23
254 Decision of questions before SSAT
24
(1) This section applies if the SSAT is constituted by 2 or more
25
members for the purposes of the review of a decision.
26
(2) A question arising before the SSAT on a review must be decided
27
according to the opinion of a majority of the members constituting
28
the SSAT for the purposes of the review.
29
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Other procedural matters Division 8
Section 255
Paid Parental Leave Bill 2010 No. , 2010 197
(3) However, if, on a question arising on a review, the opinions of the
1
members of the SSAT are equally divided, the question must be
2
decided according to the opinion of the member presiding.
3
255 Directions as to procedure for hearings
4
Directions by Principal Member
5
(1) The Principal Member:
6
(a) may give general directions as to the procedure to be
7
followed in relation to the review of decisions under this Act;
8
and
9
(b) may give directions as to the procedure to be followed in
10
relation to a particular review.
11
Note:
Directions may be given to the SSAT or to parties to reviews.
12
(2) A direction under subsection (1) must not be inconsistent with any
13
provision of this Act.
14
(3) A direction under paragraph (1)(b) may be given before or after the
15
hearing of the particular review has commenced.
16
Directions by presiding member
17
(4) The presiding member of the SSAT as constituted for the purposes
18
of a particular review may give directions as to the procedure to be
19
followed in relation to the review.
20
(5) A direction under subsection (4) must not be inconsistent with:
21
(a) any provision of this Act; or
22
(b) a direction under subsection (1) of this section.
23
(6) A direction under subsection (4) may be given before or after the
24
hearing of the particular review has commenced.
25
Directions must take SSAT objective into account
26
(7) Directions under this section must take into account the objective
27
laid down by section 214.
28
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 8 Other procedural matters
Section 256
198 Paid Parental Leave Bill 2010 No. , 2010
Legislative instrument status of directions
1
(8) A general direction made under paragraph (1)(a) is a legislative
2
instrument.
3
(9) A direction made under paragraph (1)(b) or subsection (4) is not a
4
legislative instrument.
5
256 Costs of review
6
General rule
7
(1) A party to a review must bear any expenses incurred by the party
8
in relation to the review.
9
When the Commonwealth must pay
10
(2) The SSAT may determine that the Commonwealth must pay the
11
reasonable costs that are:
12
(a) incurred by a party for travel and accommodation in relation
13
to the review; and
14
(b) specified in the determination.
15
(3) If the SSAT arranges for the provision of a medical service in
16
relation to a party to a review, the SSAT may determine that the
17
Commonwealth must pay the costs of the provision of the service.
18
(4) If the SSAT makes a determination under subsection (2) or (3), the
19
costs to which the determination relates are payable by the
20
Commonwealth.
21
22
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Notice of decisions Division 9
Section 257
Paid Parental Leave Bill 2010 No. , 2010 199
Division 9--Notice of decisions
1
257 Procedure following SSAT decision
2
SSAT affirms decision
3
(1) If the SSAT makes a decision on a review to affirm an SSAT
4
reviewable claimant decision or an SSAT reviewable employer
5
decision, the SSAT must:
6
(a) prepare a written statement (the initial statement) that sets
7
out the decision of the SSAT on the review; and
8
(b) give each party to the review a copy of the initial statement
9
within 14 days after making the decision; and
10
(c) within 14 days after making the decision, either:
11
(i) give reasons for the decision orally to each party to the
12
review and explain that the party may make a written
13
request for a statement referred to in subparagraph (ii)
14
within 14 days after the copy of the initial statement is
15
given to the party; or
16
(ii) give each party to the review a written statement
17
(whether or not as part of the initial statement) that sets
18
out the reasons for the decision, sets out the findings on
19
any material questions of fact and refers to evidence or
20
other material on which the findings of fact are based;
21
and
22
(d) return to the Secretary any document that the Secretary has
23
provided to the SSAT in relation to the review; and
24
(e) give the Secretary a copy of any other document that contains
25
evidence or material on which the findings of fact are based.
26
(2) If the SSAT does not give a written statement to a party under
27
subparagraph (1)(c)(ii), the party may, within 14 days after the
28
copy of the initial statement is given to the party, make a written
29
request of the SSAT for such a statement.
30
(3) A PPL agency head may also make a written request of the SSAT
31
for a written statement referred to in subparagraph (1)(c)(ii) if:
32
(a) the SSAT has not given such a statement to the PPL agency
33
head; and
34
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 9 Notice of decisions
Section 257
200 Paid Parental Leave Bill 2010 No. , 2010
(b) a person applies to the AAT under section 261 for review of
1
the decision of the SSAT on the review referred to in
2
subsection (1).
3
(4) The SSAT must comply with a request under subsection (2) or (3)
4
within 14 days after the day on which it receives the request.
5
SSAT varies decision or sets decision aside
6
(5) If the SSAT makes a decision on a review to vary or set aside an
7
SSAT reviewable claimant decision or an SSAT reviewable
8
employer decision, the SSAT must:
9
(a) prepare a written statement that:
10
(i) sets out the decision of the SSAT on the review; and
11
(ii) sets out the reasons for the decision; and
12
(iii) sets out the findings on any material questions of fact;
13
and
14
(iv) refers to evidence or other material on which the
15
findings of fact are based; and
16
(b) give each party to the review a copy of the statement referred
17
to in paragraph (a) within 14 days after the making of the
18
decision in relation to the review; and
19
(c) return to the Secretary any document that the Secretary has
20
provided to the SSAT in relation to the review; and
21
(d) give the Secretary a copy of any document that contains
22
evidence or material on which the findings of fact are based.
23
Notice of further review right
24
(6) When the SSAT determines a review in relation to an SSAT
25
reviewable claimant decision, the Principal Member must give
26
each party to the review (other than a PPL agency head) a written
27
notice that includes a statement to the effect that, if the party is
28
dissatisfied with the decision of the SSAT, application may,
29
subject to the AAT Act, be made to the AAT for review of the
30
decision.
31
32
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Correction of errors in decisions or statements of reasons Division 10
Section 258
Paid Parental Leave Bill 2010 No. , 2010 201
Division 10--Correction of errors in decisions or
1
statements of reasons
2
258 Correction of errors in decisions or statements of reasons
3
Correction of errors
4
(1)
If:
5
(a) the SSAT makes a decision on a review; and
6
(b) the presiding member of the SSAT as constituted for the
7
purposes of the review, or the Principal Member, is satisfied
8
that there is an obvious error in:
9
(i) the text of the decision; or
10
(ii) a written statement of reasons for the decision;
11
the presiding member or the Principal Member may alter the text
12
of the decision or statement.
13
(2) If the text of a decision or statement is altered under subsection (1),
14
the altered text is taken to be the decision of the SSAT or the
15
statement of reasons for the decision (as the case may be).
16
Examples of obvious errors
17
(3) Examples of obvious errors in the text of a decision or statement of
18
reasons are:
19
(a) an obvious clerical or typographical error in the text of the
20
decision or statement; and
21
(b) an inconsistency between the decision and the statement.
22
23
Chapter 5 Review of decisions
Part 5-3 Procedures for review by the Social Security Appeals Tribunal
Division 11 Appeals and references of questions of law from the SSAT to the Federal
Court
Section 259
202 Paid Parental Leave Bill 2010 No. , 2010
Division 11--Appeals and references of questions of law
1
from the SSAT to the Federal Court
2
259 Appeals and references of questions of law in relation to SSAT
3
review of employer decisions
4
Scope
5
(1) This section applies to proceedings before the SSAT for review of
6
an SSAT reviewable employer decision (SSAT employer
7
proceedings).
8
Object
9
(2) The object of this section is to allow SSAT employer proceedings
10
to be subject to judicial review as if they were proceedings before
11
the AAT.
12
(3) In order to achieve this object, this section is intended to allow:
13
(a) a party to SSAT employer proceedings to appeal to the
14
Federal Court, on a question of law, from any decision of the
15
SSAT in those proceedings; and
16
(b) a question of law arising in SSAT employer proceedings to
17
be referred to the Federal Court for decision.
18
Modification of AAT Act
19
(4) Without limiting subsection (3), Part IVA of the AAT Act applies
20
in relation to SSAT employer proceedings as if:
21
(a) references to the Tribunal in that Part were references to the
22
SSAT; and
23
(b) paragraph 44(2A)(a) of the AAT Act allowed an appeal to be
24
instituted within the time prescribed by rules of court made
25
under the Federal Court of Australia Act 1976, or such
26
further time as is allowed under those rules; and
27
(c) the reference to section 43AA of the AAT Act in paragraph
28
44(2B)(b) of that Act were a reference to section 258 of this
29
Act (which allows correction of errors in decisions or
30
statements of reasons); and
31
Review of decisions Chapter 5
Procedures for review by the Social Security Appeals Tribunal Part 5-3
Appeals and references of questions of law from the SSAT to the Federal Court
Division 11
Section 259
Paid Parental Leave Bill 2010 No. , 2010 203
(d) the reference to the President in paragraph 45(1)(a) of the
1
AAT Act were a reference to the Principal Member; and
2
(e) any other necessary changes were made.
3
Note 1:
Paragraph 44(2A)(a) of the AAT Act sets a time limit within which an
4
appeal must be instituted, unless the Federal Court allows further time
5
to appeal.
6
Note 2:
Paragraph 44(2B)(b) of the AAT Act provides that the Federal Court
7
may allow further time to appeal if the text of a decision or a
8
statement of reasons for a decision has been altered under
9
section 43AA of the AAT Act (which allows errors to be corrected).
10
Note 3:
Paragraph 45(1)(a) of the AAT Act requires the President of the AAT
11
to concur before the AAT can refer a question of law arising in
12
proceedings before the AAT to the Federal Court.
13
(5) However, the following provisions of Part IVA of the AAT Act do
14
not apply in relation to SSAT employer proceedings:
15
(a) subsection 44(2) (which allows certain appeals about
16
standing before the AAT to be made);
17
(b) paragraphs 44(3)(b) and (c) (which require appeals to be
18
heard by the Full Court of the Federal Court in some
19
circumstances);
20
(c) subsection 44AA(2) (which prevents appeals being
21
transferred to the Federal Magistrates Court in some
22
circumstances).
23
24
Chapter 5 Review of decisions
Part 5-4 Review of claimant decisions by the Administrative Appeals Tribunal
Division 1 Guide to this Part
Section 260
204 Paid Parental Leave Bill 2010 No. , 2010
Part 5-4--Review of claimant decisions by the
1
Administrative Appeals Tribunal
2
Division 1--Guide to this Part
3
260 Guide to this Part
4
This Part is about how the Secretary or people whose interests are
5
affected by a decision of the Social Security Appeals Tribunal
6
(SSAT) may apply to the Administrative Appeals Tribunal (AAT)
7
for review of the SSAT's decision. Employers may not seek AAT
8
review of SSAT decisions.
9
Division 2 allows an application to be made for AAT review of a
10
decision. It also sets out what happens if the SSAT's decision is
11
varied after an application is made to the AAT, and allows the
12
Secretary to settle proceedings relating to the recovery of a debt.
13
Division 3 modifies the AAT Act for the purposes of reviews of
14
decisions made under this Act.
15
16
Review of decisions Chapter 5
Review of claimant decisions by the Administrative Appeals Tribunal Part 5-4
Right to review by AAT Division 2
Section 261
Paid Parental Leave Bill 2010 No. , 2010 205
Division 2--Right to review by AAT
1
261 Review of decisions by AAT
2
(1) The Secretary or a person whose interests are affected by a
3
decision of the SSAT to affirm, vary or set aside an SSAT
4
reviewable claimant decision may apply to the AAT for review of
5
the decision of the SSAT.
6
(2) For the purposes of subsection (1), the decision of the SSAT is
7
taken to be:
8
(a) where the SSAT affirms an SSAT reviewable claimant
9
decision--that decision as affirmed; and
10
(b) where the SSAT varies an SSAT reviewable claimant
11
decision--that decision as varied; and
12
(c) where the SSAT sets aside an SSAT reviewable claimant
13
decision and substitutes a new decision--the new decision;
14
and
15
(d) where the SSAT sets aside an SSAT reviewable claimant
16
decision and sends the matter back to the Secretary for
17
reconsideration in accordance with any directions or
18
recommendations of the SSAT--the directions or
19
recommendations of the SSAT.
20
(3) A person cannot make an application under subsection (1) in the
21
person's capacity as an employer.
22
(4) Subsection (1) has effect subject to section 29 of the AAT Act.
23
262 Variation of decision under section 261 before AAT review
24
completed
25
(1) If an officer varies a decision after an application has been made
26
under section 261 to the AAT for review of that decision but before
27
the determination of the application, the application must be treated
28
as if:
29
(a) the decision as varied had been affirmed by the SSAT; and
30
(b) the application were an application for review of the decision
31
as varied.
32
Chapter 5 Review of decisions
Part 5-4 Review of claimant decisions by the Administrative Appeals Tribunal
Division 2 Right to review by AAT
Section 263
206 Paid Parental Leave Bill 2010 No. , 2010
(2) If an officer sets a decision aside and substitutes a new decision
1
after an application has been made under section 261 to the AAT
2
for review of the original decision but before the determination of
3
the application, the application must be treated as if:
4
(a) the SSAT had set aside the original decision and substituted
5
the new decision; and
6
(b) the application were an application for review of the new
7
decision.
8
(3)
If:
9
(a) a person applies to the AAT for review of a decision under
10
section 261; and
11
(b) before determination of the review, an officer varies the
12
decision or sets the decision aside and substitutes a new
13
decision;
14
the applicant may, instead of proceeding with the application under
15
subsection (1) or (2), withdraw the application.
16
263 Settlement of proceedings before the AAT
17
(1) The Secretary may agree with other parties to proceedings before
18
the AAT that relate to the recovery of a debt that the proceedings
19
be settled. The agreement must be in writing.
20
(2) If proceedings are settled and the Secretary gives the AAT a copy
21
of the agreement to settle the proceedings, the application for
22
review of the decision the subject of the proceedings is taken to
23
have been dismissed.
24
25
Review of decisions Chapter 5
Review of claimant decisions by the Administrative Appeals Tribunal Part 5-4
Modification of AAT Act in relation to section 261 review applications Division 3
Section 264
Paid Parental Leave Bill 2010 No. , 2010 207
Division 3--Modification of AAT Act in relation to
1
section 261 review applications
2
264 Notice of application for review
3
The AAT Act applies to an application under section 261 for
4
review of a decision as if the reference in subsection 29(11) of the
5
AAT Act to the person who made the decision were a reference to
6
each person who was a party to the review of the decision by the
7
SSAT (other than the party who made the application under
8
section 261).
9
265 Parties to a review by the AAT
10
The AAT Act applies to an application under section 261 for
11
review as if the reference in paragraph 30(1)(b) of the AAT Act to
12
the person who made the decision were a reference to each party to
13
the review of the decision by the SSAT.
14
266 Lodgment of documents with the AAT
15
(1) The AAT Act applies to an application under section 261 for
16
review as if references in section 37 of the AAT Act to the person
17
who made the decision the subject of the application were
18
references to the following person (the deemed decision-maker):
19
(a) if the decision that was reviewed by the SSAT was made by
20
the CEO or an employee of the Commonwealth Services
21
Delivery Agency--the CEO of the Agency;
22
(b) if the decision that was reviewed by the SSAT was made by
23
the CEO or an employee of Medicare Australia--the CEO of
24
Medicare Australia;
25
(c)
otherwise--the
Secretary.
26
(2) If a person applies to the AAT under section 261 for review of a
27
decision, the deemed decision-maker is taken to have complied
28
with his or her obligations under paragraph 37(1)(a) of the AAT
29
Act in relation to the decision if he or she gives the AAT the
30
required number of copies of:
31
Chapter 5 Review of decisions
Part 5-4 Review of claimant decisions by the Administrative Appeals Tribunal
Division 3 Modification of AAT Act in relation to section 261 review applications
Section 267
208 Paid Parental Leave Bill 2010 No. , 2010
(a) if the decision was affirmed by the SSAT--a statement
1
referred to in subparagraph 257(1)(c)(ii); or
2
(b) otherwise--the statement prepared by the SSAT under
3
paragraph 257(5)(a).
4
(3) Subsection (2) does not limit the powers of the AAT under
5
section 38 of the AAT Act.
6
267 Power of AAT to obtain additional information
7
The AAT Act applies to an application under section 261 for
8
review as if references in section 38 of the AAT Act to the person
9
who lodges a statement referred to in paragraph 37(1)(a) of that
10
Act with the AAT were references to the Principal Member.
11
268 Operation and implementation of the decision under review
12
(1) The AAT Act applies to an application under section 261 for
13
review of a decision as if references in subsection 41(4) of the
14
AAT Act to the person who made the decision were references to
15
each party to the review by the SSAT.
16
(2) The AAT Act applies to an application under section 261 for
17
review of a decision as if references in section 41 of the AAT Act
18
to the decision to which the relevant proceedings relate were
19
references to:
20
(a) if the SSAT affirmed the original decision--the original
21
decision; or
22
(b) if the SSAT varied the original decision:
23
(i) the original decision as varied by the SSAT; and
24
(ii) the original decision; or
25
(c) if the SSAT set aside the original decision and substituted a
26
new decision:
27
(i) the new decision; and
28
(ii) the original decision; or
29
(d) if the SSAT set aside the original decision and sent the matter
30
back to the Secretary for reconsideration in accordance with
31
any directions or recommendations of the SSAT:
32
(i) any decision made because of that reconsideration; and
33
Review of decisions Chapter 5
Review of claimant decisions by the Administrative Appeals Tribunal Part 5-4
Modification of AAT Act in relation to section 261 review applications Division 3
Section 269
Paid Parental Leave Bill 2010 No. , 2010 209
(ii) the original decision.
1
(3) For the purposes of subsection (2), the original decision is the
2
decision that was reviewed by the SSAT.
3
269 Failure of party to appear
4
The AAT Act applies to the review of a decision on an application
5
under section 261 as if the reference in subsection 42A(2) of the
6
AAT Act to the person who made the decision were a reference to
7
the Secretary.
8
9
Chapter 5 Review of decisions
Part 5-5 Other matters relating to review
Division 1 Guide to this Part
Section 270
210 Paid Parental Leave Bill 2010 No. , 2010
Part 5-5--Other matters relating to review
1
Division 1--Guide to this Part
2
270 Guide to this Part
3
This Part contains miscellaneous provisions relating to reviews.
4
5
Review of decisions Chapter 5
Other matters relating to review Part 5-5
Other matters relating to review Division 2
Section 271
Paid Parental Leave Bill 2010 No. , 2010 211
Division 2--Other matters relating to review
1
271 Authorised review officers
2
The Secretary may, in writing, authorise an officer to be an
3
authorised review officer for the purposes of this Act.
4
272 Review body may determine events to have happened, or not to
5
have happened
6
(1) This section applies if the Secretary, the SSAT or the AAT (the
7
review body) is reviewing a decision under this Chapter.
8
(2) If the review body is satisfied that an event did not happen that
9
would have happened if the decision had not been made, the
10
review body may, if satisfied that it is reasonable to do so,
11
determine that this Act is to apply as if the event had happened.
12
(3) If the review body is satisfied that an event happened that would
13
not have happened if the decision had not been made, the review
14
body may, if satisfied that it is reasonable to do so, determine that
15
this Act is to apply as if the event had not happened.
16
273 Certain income test determinations not to be changed on review
17
(1) This section applies to a review being done for the purposes of this
18
Chapter by an officer, the SSAT or the AAT (the review body) if:
19
(a) the review involves (wholly or partly) a review of a decision
20
(the decision being reviewed) that:
21
(i) a person is or is not eligible for parental leave pay; or
22
(ii) parental leave pay is or is not payable to a person; and
23
(b) the review has involved (wholly or partly) the consideration
24
of a determination (the income determination) that the
25
person satisfies the income test; and
26
(c) the income determination was taken into account in the
27
making of a decision that parental leave pay is payable to the
28
person; and
29
(d) the person did not knowingly make a false or misleading
30
representation or provide false or misleading information or
31
Chapter 5 Review of decisions
Part 5-5 Other matters relating to review
Division 2 Other matters relating to review
Section 273
212 Paid Parental Leave Bill 2010 No. , 2010
documents to the Secretary, the SSAT or the AAT in relation
1
to the income determination.
2
Note:
For the income test, see section 37.
3
(2) Despite any provision of this Chapter or of the AAT Act, the
4
review body must not vary the decision being reviewed, or set
5
aside the decision being reviewed and substitute a new decision, in
6
a way that has the effect of:
7
(a) varying the income determination so that the person is taken
8
not to have satisfied the income test; or
9
(b) substituting a new determination that the person did not
10
satisfy the income test.
11
12
Miscellaneous Chapter 6
How this Act applies in particular circumstances Part 6-1
Guide to this Part Division 1
Section 274
Paid Parental Leave Bill 2010 No. , 2010 213
Chapter 6--Miscellaneous
1
Part 6-1--How this Act applies in particular
2
circumstances
3
Division 1--Guide to this Part
4
274 Guide to this Part
5
This Part has rules that modify this Act so that it applies correctly
6
in 3 limited kinds of cases--adoption, claims made in exceptional
7
circumstances etc. and Commonwealth employment.
8
Division 2 modifies this Act so that it applies correctly for adopted
9
children under 16. For example, where a provision of this Act
10
refers to the day a child was born, Division 2 modifies that
11
provision so that, when applying that provision to the adopted
12
child, the provision has the effect of referring to the day of
13
placement of the adopted child (instead of the day the adopted
14
child was born).
15
Division 3 modifies this Act so that it applies correctly for claims
16
that are made in exceptional circumstances and other special cases.
17
For example, where a provision of this Act refers to the day a child
18
was born, Division 3 modifies that provision so that, when
19
applying that provision in relation to a claim that is made in
20
exceptional circumstance, the provision has the effect of referring
21
to the day the claimant became the child's primary carer (instead of
22
the day the child was born).
23
Division 4 modifies this Act so that it applies correctly to
24
Commonwealth employment.
25
26
Chapter 6 Miscellaneous
Part 6-1 How this Act applies in particular circumstances
Division 2 How this Act applies to an adopted child
Section 275
214 Paid Parental Leave Bill 2010 No. , 2010
Division 2--How this Act applies to an adopted child
1
275 How this Act applies to an adopted child
2
(1) This Act applies in relation to an adopted child that satisfies the
3
requirements of subsection (2) as if:
4
(a) a reference to the birth of a child were a reference to the
5
placement of the child; and
6
(b) a reference to the day the child was born were a reference to
7
the day of placement of the child; and
8
(c) a reference to the expected date of birth of the child were a
9
reference to the expected day of placement of the child; and
10
(d) a reference to a child's first birthday were a reference to the
11
first anniversary of the day of placement of the child; and
12
(e) a reference to a completed birth verification form for a child
13
were a reference to information required by the Secretary
14
about the adoption of the child; and
15
(f) a reference to a child being born during the same multiple
16
birth were a reference to the child being adopted during the
17
same multiple adoption.
18
When a child satisfies this subsection
19
(2) A child satisfies the requirements of this subsection if:
20
(a) as part of the process for the adoption of the child by a
21
person, the child is, or is to be, entrusted to the care of the
22
person by an authorised party; and
23
(b) the child is, or will be, under 16 on the day of placement of
24
the child.
25
Meaning of day of placement
26
(3)
The
day of placement of a child with a person is the day on which,
27
as part of the process for the adoption of a child by a person, the
28
child is entrusted to the care of the person by an authorised party.
29
30
Miscellaneous Chapter 6
How this Act applies in particular circumstances Part 6-1
How this Act applies to claims made in exceptional circumstances and other cases
Division 3
Section 276
Paid Parental Leave Bill 2010 No. , 2010 215
Division 3--How this Act applies to claims made in
1
exceptional circumstances and other cases
2
276 How this Act applies to claims made in exceptional
3
circumstances
4
This Act (other than subsection 18(3), which deals with birth
5
registration) applies in relation to a claim that is made in
6
exceptional circumstances as if:
7
(a) a reference to the birth of a child were a reference to the
8
claimant becoming the child's primary carer; and
9
(b) a reference to the day the child was born were a reference to
10
the day the claimant became the child's primary carer; and
11
(c) a reference to the expected date of birth of the child were a
12
reference to the day the claimant expects to become the
13
child's primary carer; and
14
(d) a reference to a child's first birthday were a reference to the
15
first anniversary of the day the claimant became the child's
16
primary carer; and
17
(e) a reference to a completed birth verification form for a child
18
were a reference to information required by the Secretary
19
about the claimant becoming the child's primary carer; and
20
(f) a reference to a child being born during the same multiple
21
birth were a reference to the claimant becoming the primary
22
carer of the child at the same time as becoming the primary
23
carer of another child.
24
277 Primary carers when a child is stillborn or dies
25
(1)
If:
26
(a) a claim is made for parental leave pay for a child; and
27
(b) before or after the claim is made, the child is stillborn or dies;
28
then this Act (other than sections 31 and 47) applies as if a
29
reference to the claimant becoming or being the child's primary
30
carer were a reference to the claimant having become or been the
31
child's primary carer had the child not been stillborn or died.
32
Note:
Section 31 deals with eligibility for parental leave pay and section 47
33
defines who is a primary carer.
34
Chapter 6 Miscellaneous
Part 6-1 How this Act applies in particular circumstances
Division 3 How this Act applies to claims made in exceptional circumstances and other
cases
Section 277
216 Paid Parental Leave Bill 2010 No. , 2010
(2) The PPL rules may modify the operation of subsection (1).
1
Miscellaneous Chapter 6
How this Act applies in particular circumstances Part 6-1
How this Act applies to Commonwealth employment Division 4
Section 278
Paid Parental Leave Bill 2010 No. , 2010 217
Division 4--How this Act applies to Commonwealth
1
employment
2
278 How this Act applies to Commonwealth employment
3
This Act applies in relation to a person who is engaged by or on
4
behalf of the Commonwealth as an employee, to perform functions
5
in a Commonwealth agency as if:
6
(a) the employee were employed by the agency (rather than the
7
Commonwealth) for whom the person is to perform
8
functions; and
9
(b) the agency were a body corporate; and
10
(c) the head of the agency (however described) has all the rights,
11
duties and powers of an employer in relation to the employee.
12
13
Chapter 6 Miscellaneous
Part 6-2 Nominees
Division 1 Guide to this Part
Section 279
218 Paid Parental Leave Bill 2010 No. , 2010
Part 6-2--Nominees
1
Division 1--Guide to this Part
2
279 Guide to this Part
3
This Part is about payment nominees (who are people who can
4
receive payments of instalments of parental leave pay on behalf of
5
other people for the purposes of this Act) and correspondence
6
nominees (who are people who can receive notices on behalf of
7
other people for the purposes of this Act).
8
Division 2 allows the Secretary to appoint a person to be a payment
9
nominee, or a correspondence nominee, for another person for the
10
purposes of this Act.
11
Divisions 3, 4 and 5 deal with the consequences of such an
12
appointment.
13
14
Miscellaneous Chapter 6
Nominees Part 6-2
Appointment of nominees Division 2
Section 280
Paid Parental Leave Bill 2010 No. , 2010 219
Division 2--Appointment of nominees
1
280 Appointment of payment nominee
2
(1) The Secretary may, in writing:
3
(a) appoint a person (including a body corporate) to be the
4
payment nominee of another person for the purposes of this
5
Act; and
6
(b) direct that the whole or a specified part of an instalment
7
payable to the nominee's principal be paid to the nominee.
8
Note:
The Secretary must make the appointment in accordance with
9
section 282.
10
(2) An appointment or a direction made under subsection (1) is not a
11
legislative instrument.
12
281 Appointment of correspondence nominee
13
(1) The Secretary may, in writing, appoint a person (including a body
14
corporate) to be the correspondence nominee of another person for
15
the purposes of this Act.
16
Note:
The Secretary must make the appointment in accordance with
17
section 282.
18
(2) An appointment made under subsection (1) is not a legislative
19
instrument.
20
282 Provisions relating to appointments
21
(1) A person may be appointed as the payment nominee and the
22
correspondence nominee of the same person.
23
(2) The Secretary must not appoint a nominee for a person (the
24
proposed principal) under section 280 or 281 except:
25
(a) with the written consent of the person to be appointed; and
26
(b) after taking into consideration the wishes (if any) of the
27
proposed principal regarding the making of such an
28
appointment.
29
Chapter 6 Miscellaneous
Part 6-2 Nominees
Division 2 Appointment of nominees
Section 283
220 Paid Parental Leave Bill 2010 No. , 2010
(3) The Secretary must cause a copy of an appointment under
1
section 280 or 281 to be given to:
2
(a) the nominee; and
3
(b)
the
principal.
4
283 Suspension and cancellation of nominee appointments
5
(1) If a person who is appointed as a nominee under section 280 or 281
6
informs the Secretary in writing that the person no longer wishes to
7
be a nominee under that appointment, the Secretary must, as soon
8
as practicable, cancel the appointment.
9
(2)
If:
10
(a) the Secretary gives a nominee a notice under section 288; and
11
(b) the nominee informs the Department that:
12
(i) an event or change of circumstances has happened or is
13
likely to happen; and
14
(ii) the event or change of circumstances is likely to have an
15
effect referred to in paragraph 288(1)(b);
16
the Secretary may suspend or cancel the nominee's appointment.
17
(3)
If:
18
(a) the Secretary gives a nominee a notice under
section 288 or
19
289; and
20
(b) the nominee does not comply with the requirement of the
21
notice;
22
the Secretary may suspend or cancel the nominee's appointment, or
23
each of the nominee's appointments.
24
(4) While an appointment is suspended, the appointment has no effect
25
for the purposes of this Act.
26
(5) The Secretary may, at any time, cancel the suspension of an
27
appointment under subsection (2) or (3).
28
(6) The suspension or cancellation of an appointment, and the
29
cancellation of such a suspension, must be in writing.
30
Miscellaneous Chapter 6
Nominees Part 6-2
Appointment of nominees Division 2
Section 283
Paid Parental Leave Bill 2010 No. , 2010 221
(7) The cancellation of an appointment has effect on and from such
1
day, being later than the day of the cancellation, as is specified in
2
the cancellation.
3
(8) The Secretary must give the principal and the nominee a copy of:
4
(a) a suspension of the nominee's appointment; or
5
(b) a cancellation of the nominee's appointment; or
6
(c) a cancellation of a suspension of the nominee's appointment.
7
(9) A suspension or cancellation of an appointment, or a cancellation
8
of such a suspension, under this section is not a legislative
9
instrument.
10
11
Chapter 6 Miscellaneous
Part 6-2 Nominees
Division 3 Payment of instalments to payment nominee
Section 284
222 Paid Parental Leave Bill 2010 No. , 2010
Division 3--Payment of instalments to payment nominee
1
284 Payment of instalments to payment nominee
2
(1)
If:
3
(a) a person has a payment nominee; and
4
(b) the whole or a part of an instalment is payable to the person;
5
and
6
(c) the Secretary has given a direction in relation to the
7
instalment under section 280;
8
the instalment must be paid in accordance with the direction.
9
(2) An instalment paid to the payment nominee of a person:
10
(a) is paid to the payment nominee on behalf of the person; and
11
(b) is taken, for the purposes of this Act (other than this Part), to
12
have been paid to the person and to have been so paid when it
13
was paid to the nominee.
14
(3) An instalment that is to be paid to the payment nominee of a
15
person must be paid to the credit of a bank account nominated and
16
maintained by the nominee.
17
(4) The Secretary may direct that the whole or a part of an instalment
18
that is to be paid to a payment nominee be paid to the payment
19
nominee in a different way from that provided for by
20
subsection (3). If the Secretary gives such a direction, an
21
instalment to which the direction relates must be paid in
22
accordance with the direction.
23
(5) A direction given under subsection (4) is not a legislative
24
instrument.
25
26
Miscellaneous Chapter 6
Nominees Part 6-2
Functions and responsibilities of nominees Division 4
Section 285
Paid Parental Leave Bill 2010 No. , 2010 223
Division 4--Functions and responsibilities of nominees
1
285 Actions of correspondence nominee on behalf of principal
2
(1) Any act that may be done by a person under, or for the purposes of,
3
this Act (other than Division 2 or 3) may be done by the person's
4
correspondence nominee.
5
Note:
This section is subject to section 296 (which deals with the right of the
6
nominee to attend with a principal) and subsection (4) of this section.
7
(2) Without limiting subsection (1), an application or claim that may
8
be made under this Act by a person may be made by the person's
9
correspondence nominee on behalf of the person, and an
10
application or claim so made is taken to be made by the person.
11
(3) An act done by a person's correspondence nominee under this
12
section has effect, for the purposes of this Act (other than this
13
Part), as if it had been done by the person.
14
(4) If, under a provision of this Act, the Secretary gives a notice to a
15
person who has a correspondence nominee, subsection (1) does not
16
extend to an act that is required by the notice to be done by the
17
person.
18
286 Giving of notices to correspondence nominee
19
(1) Any notice that the Secretary is authorised or required by this Act
20
to give to a person may be given by the Secretary to the person's
21
correspondence nominee.
22
(2)
The
notice:
23
(a) must, in every respect, be in the same form, and in the same
24
terms, as if it were being given to the person; and
25
(b) may be given to the correspondence nominee personally or
26
by post or by any other means approved by the Secretary.
27
(3)
If:
28
(a) under subsection (1), the Secretary gives a notice (the
29
nominee notice) to a person's correspondence nominee; and
30
(b) the Secretary afterwards gives the person a notice that:
31
Chapter 6 Miscellaneous
Part 6-2 Nominees
Division 4 Functions and responsibilities of nominees
Section 287
224 Paid Parental Leave Bill 2010 No. , 2010
(i) is expressed to be given under the same provision of this
1
Act as the nominee notice; and
2
(ii) makes the same requirement of the person as the
3
nominee notice;
4
section 287 ceases to have effect in relation to the nominee notice.
5
(4)
If:
6
(a) under subsection (1), the Secretary gives a notice (the
7
nominee notice) to a person's correspondence nominee; and
8
(b) the Secretary has already given to the person a notice that:
9
(i) is expressed to be given under the same provision of this
10
Act as the nominee notice; and
11
(ii) makes the same requirement of the person as the
12
nominee notice;
13
section 287 does not have effect in relation to the nominee notice.
14
287 Compliance by correspondence nominee
15
(1) If, under section 286, a notice making a PPL requirement of a
16
person is given to the person's correspondence nominee, the
17
following paragraphs have effect:
18
(a) for the purposes of this Act, other than this Part, the notice is
19
taken:
20
(i) to have been given to the person; and
21
(ii) to have been so given on the day on which the notice
22
was given to the correspondence nominee;
23
(b) any PPL requirement made of the person may be satisfied by
24
the correspondence nominee;
25
(c) any act done by the correspondence nominee for the purposes
26
of satisfying a PPL requirement of the notice has effect, for
27
the purposes of this Act, as if it had been done by the person;
28
(d) if the correspondence nominee fails to satisfy a PPL
29
requirement of the notice, the person is taken, for the
30
purposes of this Act, to have failed to comply with the PPL
31
requirement.
32
(2) To avoid doubt, for the purposes of this Act, the person is taken to
33
have complied with a PPL requirement if:
34
Miscellaneous Chapter 6
Nominees Part 6-2
Functions and responsibilities of nominees Division 4
Section 287
Paid Parental Leave Bill 2010 No. , 2010 225
(a) the PPL requirement imposes an obligation on the person to
1
inform the Secretary of a matter, or give the Secretary a
2
statement, within a specified period; and
3
(b) the correspondence nominee informs the Secretary of the
4
matter, or gives the Secretary the statement (as the case may
5
be) within that period.
6
(3) To avoid doubt, for the purposes of this Act, the person is taken to
7
have complied with a PPL requirement if:
8
(a) the PPL requirement imposes an obligation on the person to
9
give information, or produce a document, to an officer within
10
a specified period; and
11
(b) the correspondence nominee gives the information, or
12
produces the document (as the case may be) to the officer
13
within that period.
14
(4) To avoid doubt, for the purposes of this Act, the person is taken not
15
to have complied with a PPL requirement if:
16
(a) the PPL requirement imposes an obligation on the person to
17
inform the Secretary of a matter, or give the Secretary a
18
statement, within a specified period; and
19
(b) the correspondence nominee does not inform the Secretary of
20
the matter, or give the Secretary the statement (as the case
21
may be) within that period.
22
(5) To avoid doubt, for the purposes of this Act, the person is taken not
23
to have complied with a PPL requirement if:
24
(a) the PPL requirement imposes an obligation on the person to
25
give information, or produce a document, to an officer within
26
a specified period; and
27
(b) the correspondence nominee does not give the information,
28
or produce the document (as the case may be) to the officer
29
within that period.
30
(6)
A
PPL requirement is a requirement, made by the Secretary under
31
this Act, to:
32
(a) inform the Secretary of a matter; or
33
(b) give information, or produce a document, to an officer; or
34
(c) give a statement to the Secretary.
35
Chapter 6 Miscellaneous
Part 6-2 Nominees
Division 4 Functions and responsibilities of nominees
Section 288
226 Paid Parental Leave Bill 2010 No. , 2010
288 Nominee to inform Department of matters affecting ability to
1
act as nominee
2
(1) The Secretary may give a nominee of a person a notice that
3
requires the nominee to inform the Department if:
4
(a)
either:
5
(i) an event or change of circumstances happens; or
6
(ii) the nominee becomes aware that an event or change of
7
circumstances is likely to happen; and
8
(b) the event or change of circumstances is likely to affect:
9
(i) the ability of the nominee to act as the payment nominee
10
or correspondence nominee of the person (as the case
11
may be); or
12
(ii) the ability of the Secretary to give notices to the
13
nominee under this Act; or
14
(iii) the ability of the nominee to comply with notices given
15
to the nominee by the Secretary under this Act.
16
(2) A notice under subsection (1):
17
(a) must be in writing; and
18
(b) may be given personally or by post or by any other means
19
approved by the Secretary; and
20
(c) must specify how the nominee is to give the information to
21
the Department; and
22
(d) must specify the period within which the nominee is to give
23
the information to the Department.
24
(3) A notice under subsection (1) is not ineffective just because it does
25
not comply with paragraph (2)(c).
26
(4) The period specified under paragraph (2)(d) must not end earlier
27
than 14 days after:
28
(a) the day on which the event or change of circumstances
29
happens; or
30
(b) the day on which the nominee becomes aware that the event
31
or change of circumstances is likely to happen.
32
Miscellaneous Chapter 6
Nominees Part 6-2
Functions and responsibilities of nominees Division 4
Section 289
Paid Parental Leave Bill 2010 No. , 2010 227
(5) Subsection (4) does not apply to a requirement in a notice for a
1
nominee to inform the Department of any proposal by the nominee
2
to leave Australia.
3
(6) This section extends to:
4
(a) acts, omissions, matters and things outside Australia, whether
5
or not in a foreign country; and
6
(b) all persons, irrespective of their nationality or citizenship.
7
289 Statement by payment nominee regarding disposal of money
8
(1) The Secretary may give the payment nominee of a person a notice
9
that requires the nominee to give the Department a statement about
10
a matter relating to the disposal by the nominee of an instalment
11
paid to the nominee on behalf of the person.
12
(2) A notice under subsection (1):
13
(a) must be in writing; and
14
(b) may be given personally or by post or by any other means
15
approved by the Secretary; and
16
(c) must specify how the nominee is to give the statement to the
17
Department; and
18
(d) must specify the period within which the nominee is to give
19
the statement to the Department.
20
(3) A notice under subsection (1) is not ineffective just because it does
21
not comply with paragraph (2)(c).
22
(4) The period specified under paragraph (2)(d) must not end earlier
23
than 14 days after the day the notice is given.
24
(5) A statement given in response to a notice under subsection (1)
25
must be in writing and in accordance with a form approved by the
26
Secretary.
27
(6) A person commits an offence if:
28
(a) the person is a nominee; and
29
(b) the person refuses or fails to comply with a notice under
30
subsection (1).
31
Penalty: 30 penalty units.
32
Chapter 6 Miscellaneous
Part 6-2 Nominees
Division 4 Functions and responsibilities of nominees
Section 289
228 Paid Parental Leave Bill 2010 No. , 2010
(7) Subsection (6) does not apply if the person has a reasonable
1
excuse.
2
Note:
A defendant bears an evidential burden in relation to the matter in
3
subsection (7) (see subsection 13.3(3) of the Criminal Code).
4
(8) An offence against subsection (6) is an offence of strict liability.
5
(9) This section extends to:
6
(a) acts, omissions, matters and things outside Australia, whether
7
or not in a foreign country; and
8
(b) all persons, irrespective of their nationality or citizenship.
9
10
Miscellaneous Chapter 6
Nominees Part 6-2
Other matters relating to nominees Division 5
Section 290
Paid Parental Leave Bill 2010 No. , 2010 229
Division 5--Other matters relating to nominees
1
290 Protection of principal against liability for actions of nominee
2
Nothing in this Part has the effect of rendering a principal guilty of
3
an offence against this Act in relation to any act or omission of the
4
principal's correspondence nominee.
5
291 Protection of nominee against criminal liability
6
(1) A nominee of a principal is not subject to any criminal liability
7
under this Act in relation to:
8
(a) any act or omission of the principal; or
9
(b) anything done, in good faith, by the nominee in his or her
10
capacity as nominee.
11
(2) This section has effect subject to section 289 (which deals with a
12
statement by a payment nominee regarding the disposal of money).
13
292 Duty of nominee to principal
14
(1) It is the duty of a person who is the payment or correspondence
15
nominee of a principal at all times to act in the best interests of the
16
principal.
17
(2) A nominee does not commit a breach of the duty imposed by
18
subsection (1) by doing an act if, when the act is done, the nominee
19
reasonably believes that it is in the best interests of the principal
20
that the act be done.
21
(3) A nominee does not commit a breach of the duty imposed by
22
subsection (1) by refraining from doing an act if, at the relevant
23
time, the nominee reasonably believes that it is in the best interests
24
of the principal that the act be not done.
25
293 Saving of Secretary's powers of revocation
26
Nothing in this Part is to be taken to be an expression of a contrary
27
intention for the purposes of subsection 33(3) of the Acts
28
Interpretation Act 1901.
29
Chapter 6 Miscellaneous
Part 6-2 Nominees
Division 5 Other matters relating to nominees
Section 294
230 Paid Parental Leave Bill 2010 No. , 2010
294 Saving of Secretary's powers to give notices to principal
1
Nothing in this Part is intended in any way to limit or affect the
2
Secretary's powers under other provisions of this Act to give
3
notices to, or make requirements of, a person who has a nominee.
4
295 Notification of nominee where notice given to principal
5
If, under a provision of this Act (other than a provision of this
6
Part), the Secretary gives a notice to a person who has a
7
correspondence nominee, the Secretary may inform the
8
correspondence nominee of the giving of the notice and of the
9
terms of the notice.
10
296 Right of nominee to attend with principal
11
(1)
If:
12
(a) under a provision of this Act (other than a provision of this
13
Part), the Secretary gives a notice to a person who has a
14
correspondence nominee; and
15
(b) the notice requires the person:
16
(i) to attend the Department; or
17
(ii) to attend a particular place; and
18
(c) the Secretary informs the person's correspondence nominee
19
of the giving of the notice;
20
the correspondence nominee may attend the Department or place
21
(as the case may be) with the person if the person so wishes.
22
(2) If a person's correspondence nominee is a body corporate, the last
23
reference in subsection (1) to the correspondence nominee is to be
24
read as a reference to an officer or employee of the correspondence
25
nominee.
26
27
Miscellaneous Chapter 6
Other matters Part 6-3
Guide to this Part Division 1
Section 297
Paid Parental Leave Bill 2010 No. , 2010 231
Part 6-3--Other matters
1
Division 1--Guide to this Part
2
297 Guide to this Part
3
This Part deals with miscellaneous matters.
4
Division 2 provides for the Paid Parental Leave Rules. The PPL
5
rules are made by the Minister by legislative instrument. They are
6
subordinate legislation and provide rules that operate in addition to
7
those in this Act.
8
Division 3 confers jurisdiction on the Federal Court and the
9
Federal Magistrates Court.
10
Division 4 deals with other miscellaneous matters (such as
11
delegations and regulations).
12
13
Chapter 6 Miscellaneous
Part 6-3 Other matters
Division 2 The Paid Parental Leave Rules
Section 298
232 Paid Parental Leave Bill 2010 No. , 2010
Division 2--The Paid Parental Leave Rules
1
298 The PPL rules
2
The Minister may, by legislative instrument, make rules providing
3
for matters:
4
(a) required or permitted by this Act to be provided; or
5
(b) necessary or convenient to be provided in order to carry out
6
or give effect to this Act.
7
299 Extension of Act to persons who are not employees and
8
employers
9
(1) The PPL rules or the regulations may provide that the Secretary
10
may make an employer determination under Part 3-5 for persons
11
who are in a relationship that is similar to the relationship between
12
an employer and an employee.
13
(2) For the purposes of subsection (1), the PPL rules or the regulations
14
may modify (including by adding, omitting or substituting) any
15
provision of this Act in relation to persons provided for in
16
accordance with subsection (1) by the PPL rules or the regulations.
17
18
Miscellaneous Chapter 6
Other matters Part 6-3
Jurisdiction of courts Division 3
Section 300
Paid Parental Leave Bill 2010 No. , 2010 233
Division 3--Jurisdiction of courts
1
300 Jurisdiction of Federal Court
2
Jurisdiction is conferred on the Federal Court in relation to civil
3
matters arising under this Act.
4
301 Jurisdiction of Federal Magistrates Court
5
Jurisdiction is conferred on the Federal Magistrates Court in
6
relation to civil matters arising under this Act.
7
8
Chapter 6 Miscellaneous
Part 6-3 Other matters
Division 4 Other matters
Section 302
234 Paid Parental Leave Bill 2010 No. , 2010
Division 4--Other matters
1
302 General administration
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The Secretary has, subject to any direction of the Minister, the
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general administration of this Act.
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303 Delegation
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(1) The Secretary may, in writing, delegate all or any of his or her
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powers under this Act (other than Divisions 3 and 5 of Part 4-2 and
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paragraph 128(1)(b) (which deal with civil penalty orders,
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infringement notices and disclosing information to Agency Heads))
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to:
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(a) an officer; or
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(b) without limiting paragraph (a), a person engaged (whether as
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an employee or otherwise) by:
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(i) an Agency (within the meaning of the Public Service
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Act 1999); or
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(ii) another authority of the Commonwealth; or
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(iii) an organisation that performs services for the
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Commonwealth;
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but does not include the CEO or an employee of the
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Commonwealth Services Delivery Agency.
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(2) The Secretary may, in writing and in accordance with service
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arrangements, delegate all or any of his or her powers under this
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Act (other than Divisions 3 and 5 of Part 4-2 and paragraph
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128(1)(b) (which deal with civil penalty orders, infringement
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notices and disclosing information to Agency Heads)) to the CEO
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of, or an employee of, the Commonwealth Services Delivery
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Agency or Medicare Australia.
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(3) The Secretary may, in writing, delegate the Secretary's powers
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under Division 3 or 5 of Part 4-2 (which deal with civil penalty
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orders and infringement notices) to:
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(a) the CEO of the Commonwealth Services Delivery Agency or
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Medicare Australia; or
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(b) an SES employee or an acting SES employee.
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Miscellaneous Chapter 6
Other matters Part 6-3
Other matters Division 4
Section 304
Paid Parental Leave Bill 2010 No. , 2010 235
(4) The Secretary cannot delegate to anyone except the CEO of the
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Commonwealth Services Delivery Agency or Medicare Australia
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the Secretary's power under paragraph 128(1)(b) to disclose
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information to an Agency Head (within the meaning of the Public
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Service Act 1999).
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(5) If the Secretary delegates that power to a CEO, the CEO cannot,
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despite any other provision in the Commonwealth Services
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Delivery Agency Act 1997 or the Medicare Australia Act 1973,
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delegate the power to an employee of the Commonwealth Services
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Delivery Agency or Medicare Australia.
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304 Decisions to be in writing
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A decision of an officer under this Act must be in writing.
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305 Secretary may arrange for use of computer programs to make
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decisions
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(1) The Secretary may arrange for the use, under the Secretary's
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control, of computer programs for any purposes for which the
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Secretary may make decisions under this Act.
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(2) A decision made by the operation of a computer program under an
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arrangement made under subsection (1) is taken to be a decision
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made by the Secretary.
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306 Notice of decisions
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(1) Notice of a decision under this Act is taken, for the purposes of this
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Act, to have been given to a person if written notice of the decision
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is:
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(a) delivered to the person personally; or
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(b) left at the address of the place of residence or business of the
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person last known to the Secretary; or
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(c) sent by prepaid post to the postal address of the person last
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known to the Secretary.
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Note:
Notice of decisions can also be given electronically in accordance
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with the Electronic Transactions Act 1999.
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Chapter 6 Miscellaneous
Part 6-3 Other matters
Division 4 Other matters
Section 307
236 Paid Parental Leave Bill 2010 No. , 2010
(2) Notice of a decision under this Act may be given to a person by
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properly addressing, prepaying and posting the document as a
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letter.
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(3) Notice of a decision that is given in accordance with subsection (2)
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is taken to have been given to the person when the notice would be
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delivered in the ordinary course of the post unless the contrary is
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proved.
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(4) If a provision of this Act requires a notice of a decision to be given
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to a person, the decision is not ineffective just because the notice:
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(a) was not given or was given late; or
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(b) did not comply with the requirements of the provision.
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(5) This section only applies to notices of decisions. Nothing in this
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section affects the operation of sections 28A and 29 of the Acts
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Interpretation Act 1901 in relation to other notices under this Act
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(for example, a notice that requires a person to inform the
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Secretary about some matter).
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307 Appropriation
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Payments under this Act (other than payments of instalments by
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employers under Division 2 of Part 3-2) are to be made out of the
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Consolidated Revenue Fund, which is appropriated accordingly.
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308 Regulations
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The Governor-General may make regulations prescribing matters:
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(a) required or permitted by this Act to be prescribed; or
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(b) necessary or convenient to be prescribed for carrying out or
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giving effect to this Act.
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