Paid Parental Leave Act 2010

An Act to provide for a paid parental leave scheme, and for related purposes

Chapter 1—Introduction

Part 1‑1—Introduction

Division 1—Preliminary

1 Short title

This Act may be cited as the Paid Parental Leave Act 2010.

2 Commencement

This Act commences on 1 October 2010.

3 Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) However, this Act does not make the Crown liable to be prosecuted for an offence.

(3) To avoid doubt, subsection (2) does not prevent the Crown from being liable to pay a pecuniary penalty under section 147 or 159.

Note: Section 147 deals with civil penalty orders and section 159 deals with infringement notices.

3AA Norfolk Island

This Act extends to Norfolk Island.

Division 1A—Objects of this Act

3A Objects of this Act

(1A) This Act establishes a paid parental leave scheme with 2 payments—parental leave pay, and dad and partner pay.

(1B) The objects of the paid parental leave scheme are to:

(a) signal that taking time out of the paid workforce to care for a child is part of the usual course of life and work for both parents; and

(b) promote equality between men and women and balance between work and family life.

(1) The object of parental leave pay is to provide financial support to primary carers (mainly birth mothers) of newborn and newly adopted children, in order to:

(a) allow those carers to take time off work to care for the child after the child’s birth or adoption; and

(b) enhance the health and development of birth mothers and children; and

(2) The object of dad and partner pay is to provide financial support to fathers and partners caring for newborn or newly adopted children, in order to:

(a) increase the time that fathers and partners take off work around the time of birth or adoption; and

(b) create further opportunities for fathers and partners to bond with the child; and

(c) allow fathers and partners to take a greater share of caring responsibilities and to support mothers and partners from the beginning.

(3) The financial support provided by this Act is intended to complement and supplement existing entitlements to paid or unpaid leave in connection with the birth or adoption of a child.

Division 2—Guide to this Act

4 Guide to this Act

Overview

This Act provides for the payment of parental leave pay and dad and partner pay in the first year after the birth of a child or, for adoption, the placement of a child.

Parental leave pay is paid to a person for a particular period. That period is called the person’s PPL period. The maximum period for which any person may be paid parental leave pay is 18 weeks. A person’s PPL period may be the full 18 weeks or a lesser period (e.g. where the person is not eligible for parental leave pay for that full period).

Parental leave pay is paid in instalments at the national minimum wage for each week day during the person’s PPL period. It is paid by either the person’s employer or the Secretary.

Dad and partner pay is a one‑off payment that relates to a period of up to 2 weeks. The period is called the person’s DAPP period. The person’s DAPP period may be the full 2 weeks or a lesser period (if the person is not eligible for dad and partner pay for that full period).

Dad and partner pay is paid at the national minimum wage for each week day during the person’s DAPP period. Dad and partner pay is paid by the Secretary.

Chapter 2—When parental leave pay is payable to a person

Chapter 2 sets out when parental leave pay is payable to a person. The key provisions for the Chapter are found in Part 2‑1.

A person can only be paid parental leave pay if the Secretary makes a determination that parental leave pay is payable to the person. Part 2‑2 has the rules about when the Secretary can make that determination.

The Secretary cannot make that determination if the person is not eligible for parental leave pay. Part 2‑3 has the rules about eligibility. For the main case, to be eligible a person must (broadly):

(a) satisfy the work test, the income test and the Australian residency test; and

(b) be the child’s primary carer; and

The Secretary also cannot make that determination if the person has not made a claim for parental leave pay. Part 2‑4 has the rules about claims.

There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one—a secondary or tertiary claim cannot be made without it. The primary claim will often be the only claim that is made. If a secondary or tertiary claim is made, that claim will be for the part of the maximum 18 week period (or lesser period) in which parental leave pay was not payable to the primary claimant.

Chapter 3—Payment of parental leave pay

Chapter 3 sets out how parental leave pay is paid to a person.

Part 3‑1 is about instalments of parental leave pay. It deals with when instalments must be paid, whether the person’s employer or the Secretary must pay them and the amount of the instalments.

Part 3‑2 sets out when a person’s employer must pay instalments to the person. The employer is only required to do that if an employer determination has come into force for the employer and the person, and the employer has been paid enough by the Secretary to fund the instalment.

Part 3‑3 sets out when the Secretary must pay instalments directly to the person. The Secretary is required to do that if an employer determination is never made for the person (e.g. the person is a contractor and so does not have an employer). There are some other circumstances in which the Secretary is also required to pay instalments directly to the person (such as when an employer determination is being reviewed or has been revoked).

Part 3‑4 has general rules about the payment of instalments (such as what happens when an instalment cannot be paid on the day specified in this Act).

Part 3‑5 is about employer determinations. If an employer determination is in force for an employer and a person, the employer must pay instalments to the person. The Secretary must be satisfied that certain conditions have been met before the Secretary can make an employer determination.

Chapter 3A—Dad and partner pay

Chapter 3A sets out when dad and partner pay is payable to a person. The key provisions for the Chapter are found in Part 3A‑1.

A person can only be paid dad and partner pay if the Secretary makes a determination that dad and partner pay is payable to the person. Part 3A‑2 has rules about when the Secretary can make that determination.

The Secretary cannot make that determination if the person is not eligible for dad and partner pay. Part 3A‑3 has the rules about eligibility. For the main case, to be eligible a person must (broadly):

(a) satisfy the work test, the income test and the Australian residency test; and

(b) be caring for the child; and

The Secretary also cannot make that determination if the person has not made a claim for dad and partner pay. Part 3A‑4 has the rules about claims.

Part 3A‑5 sets out how dad and partner pay is paid to a person. Generally, dad and partner pay is paid by the Secretary as a single payment.

Chapter 4—Compliance and enforcement

Chapter 4 deals with compliance and enforcement.

Part 4‑1 allows the Secretary to gather information for the purposes of checking compliance with this Act. It also deals with the confidentiality of personal and protected information.

Part 4‑2 deals with other compliance matters. It allows the Secretary to refer matters to the Fair Work Ombudsman for investigation if the Secretary has reason to believe that an employer has not complied with certain obligations under this Act. It also deals with civil penalty provisions, compliance notices and infringement notices.

Part 4‑3 provides for debts in relation to the paid parental leave scheme, and for the recovery of debts owing to the Commonwealth.

Chapter 5—Administrative review of decisions

Chapter 5 is about administrative review of decisions made under this Act.

Part 5‑1 allows the Secretary, on his or her own initiative, to conduct an internal review of decisions made under this Act. It also allows a person whose interests are affected by certain types of decisions to seek internal review of those decisions, and an employer to seek internal review of certain types of decisions that affect employers.

Part 5‑2 allows a person to apply to the Administrative Appeals Tribunal (AAT) for review of certain decisions made under this Act. This review is called AAT first review.

Part 5‑3 allows a person to apply to the AAT for review of certain decisions made by the AAT on AAT first review. This review is called AAT second review.

Part 5‑4 has miscellaneous provisions relating to reviews of decisions made under this Act.

Chapter 6—Miscellaneous

Chapter 6 has miscellaneous provisions.

Part 6‑1 has rules that modify this Act so that it applies correctly in 3 limited kinds of cases—adoption, claims made in exceptional circumstances etc. and Commonwealth employment.

Part 6‑2 is about payment nominees (who are people who can receive payments of instalments of parental leave pay, or a payment of dad and partner pay, on behalf of other people for the purposes of this Act) and correspondence nominees (who are people who can receive notices on behalf of other people for the purposes of this Act).

Part 6‑3 deals with other miscellaneous matters, such as the PPL rules, delegations and regulations.

Part 1‑2—Definitions

Division 1—Guide to this Part

5 Guide to this Part

This Part is about the terms that are defined in this Act.

Division 2 has the Dictionary (see section 6). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.

Division 2—The Dictionary

6 The Dictionary

In this Act:

AAT means the Administrative Appeals Tribunal.

AAT Act means the Administrative Appeals Tribunal Act 1975.

AAT first review:

(a) in relation to an AAT reviewable claimant decision: see subsection 216(1); and

(b) in relation to an AAT reviewable employer decision: see subsection 224(1).

AAT reviewable claimant decision: see subsection 215(3).

AAT reviewable employer decision: see subsection 223(2).

AAT second review: see subsection 237(1).

ABN (short for Australian Business Number) has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.

acceptance notice: see section 103.

ADI (short for authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.

adjusted taxable income: see section 38.

Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.

Note: In Division 7A of Part 4‑3 (about departure prohibition orders), Australia has an extended meaning.

Australian‑based employee means an employee:

(a) whose primary place of work is in Australia; or

(b) who is employed by an Australian government employer.

Australian government employer means:

(a) the Commonwealth; or

(b) a State; or

(d) a body corporate established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or

(e) a body corporate:

(i) incorporated under a law of the Commonwealth, a State or a Territory; and

(ii) in which the Commonwealth, a State or a Territory, has a controlling interest.

Australian residency test: see sections 45 and 46.

Australian resident has the same meaning as in the Social Security Act.

Australian travel document has the same meaning as in the Australian Passports Act 2005.

authorised party, in relation to the adoption of a child, means a person or agency that, under the law of the State, Territory or foreign country whose courts have jurisdiction in relation to the adoption, is authorised to conduct negotiations or arrangements for the adoption of children.

authorised review officer means an officer authorised under section 271 to be an authorised review officer for the purposes of this Act.

bank account includes an account held with an ADI.

bank account information: see subsection 104(2).

birth verification form: see subsection 18(4).

born prematurely: a child is born prematurely if, at the time of the child’s delivery, the child’s period of gestation is less than 37 weeks.

business includes any profession, trade, employment, vocation or calling, but does not include occupation as an employee.

caring: see subsections 115CL(1) and (4).

Chief Executive Centrelink has the same meaning as in the Human Services (Centrelink) Act 1997.

Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973.

civil penalty order: see subsection 147(2).

civil penalty provision: see section 146.

claim means:

(a) for parental leave pay—a primary claim, a secondary claim or a tertiary claim for parental leave pay for a child; or

(b) for dad and partner pay—a claim for dad and partner pay for a child.

claimant means a person who is a primary claimant, secondary claimant, tertiary claimant or DAPP claimant.

claimant decision: see section 206.

Commonwealth agency means any of the following:

(a) a non‑corporate Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013;

(b) any other unincorporated body established for a public purpose by or under a law of the Commonwealth.

compliance notice: see subsection 157(3).

controls an entity: see subsection 35(4).

correspondence nominee means a person who is appointed as a correspondence nominee under section 281.

dad and partner pay means payments of dad and partner pay under this Act.

daily national minimum wage amount: see subsection 65(2).

DAPP claimant means a person who has made an effective claim for dad and partner pay for a child.

DAPP period: see subsection 115AE(1).

debt payment arrangement: see section 190.

decision has the same meaning as in the AAT Act.

defence force member means a member of the Australian Defence Force.

departure authorisation certificate means a certificate under Subdivision D of Division 7A of Part 4‑3.

departure prohibition order means an order under Subdivision A of Division 7A of Part 4‑3 (including such an order varied under Subdivision C of that Division).

effective claim means:

(a) for parental leave pay—a claim that is made in accordance with Part 2‑4; or

(b) for dad and partner pay—a claim that is made in accordance with Part 3A‑4.

eligible:

(a) for parental leave pay—see section 31; or

(b) for dad and partner pay—see section 115CB.

employee has its ordinary meaning and:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

employer has its ordinary meaning and includes a reference to a person who is usually such an employer.

employer determination: see section 101.

employer determination decision: see section 207.

employer funding amount decision: see section 208.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

entity means any of the following:

(a) a natural person;

(b) a body corporate;

(d) a partnership;

(e) any other unincorporated association or body of persons;

(f) a trust.

exceptional circumstances: a claim is made in exceptional circumstances if it is made by a person who satisfies:

(a) paragraph 54(1)(c) (which deals with primary claims); or

(b) paragraph 54(2)(d) (which deals with secondary claims); or

Fair Work Act means the Fair Work Act 2009.

Family Assistance Act means the A New Tax System (Family Assistance) Act 1999.

family assistance law has the same meaning as in the A New Tax System (Family Assistance) (Administration) Act 1999.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

financial institution means:

(a) an ADI; or

(b) the Reserve Bank of Australia; or

Foreign Affairs Minister means the Minister administering the Australian Passports Act 2005.

garnishee, in relation to a garnishee notice: see section 184.

garnishee notice: see section 184.

holder, of a visa, has the same meaning as in the Migration Act 1958.

Home Affairs Minister means the Minister administering the Australian Security Intelligence Organisation Act 1979.

Human Services Department means the Department administered by the Human Services Minister.

Human Services Minister means the Minister administering the Human Services (Centrelink) Act 1997.

Human Services Secretary means the Secretary of the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.

income support payment has the same meaning as in section 23 of the Social Security Act.

income test: see sections 37 and 115CG.

Note: Division 4 of Part 3A‑3 (which includes section 115CG) is relevant in applying the income test to claimants for dad and partner pay.

income year has the same meaning as in the Income Tax Assessment Act 1997.

indexation day: see subsection 42(1).

indexation factor: see subsection 43(1).

indexed amount: see subsection 42(2).

infringement notice: see subsections 159(1) and (2).

initial eligibility determination:

(a) for parental leave pay—see section 26; or

(b) for dad and partner pay—see section 115BL.

insolvent: a person is insolvent if:

(a) for a natural person—the person is an insolvent under administration; and

(b) for a person that is or was a body corporate:

(i) the person is a Chapter 5 body corporate (within the meaning of the Corporations Act 2001) or an entity with a similar status under a law of a foreign country; or

(ii) a provisional liquidator has been appointed in relation to the person under section 472 of the Corporations Act 2001; or

(iii) a person with a similar status to a provisional liquidator has been appointed in relation to the person under a law of a foreign country.

instalment means an instalment of parental leave pay.

instalment period for a person: see section 64.

interest charge rate: see section 177.

involved in a contravention of a civil penalty provision: see subsection 145(2).

keeping in touch day: see section 50.

law enforcement officer means:

(a) a member of a police force or police service of the Commonwealth, a State or a Territory; or

(b) a person appointed to a position for the purposes of being trained as a member of a police force or police service of the Commonwealth, a State or a Territory; or

(c) a person who has the powers and duties of a member of a police force or police service of the Commonwealth, a State or a Territory;

and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.

maximum DAPP period: see subsection 115AE(3).

maximum DAPP period end day: see subsection 115AE(5).

maximum DAPP period start day: see subsection 115AE(4).

maximum PPL period: see subsection 11(3).

maximum PPL period end day: see subsection 11(5).

maximum PPL period start day: see subsection 11(4).

minimum amount for a PPL funding amount: see subsection 76(2).

national minimum wage order has the same meaning as in the Fair Work Act.

nominated start date:

(a) for parental leave pay—see subsection 57(1); or

(b) for dad and partner pay—see subsection 115DG(1).

nominee means a correspondence nominee or a payment nominee.

not working: see section 115CM.

officer means a person performing duties, or exercising powers or functions, under or in relation to this Act.

original debt: see section 184.

original debtor: see section 184.

paid enough to fund an instalment: see section 73.

paid work: see section 35.

parent:

(a) when used in relation to a child who has been adopted—means an adoptive parent of the child; and

(b) when used in relation to a child born because of the carrying out of an artificial conception procedure—means a person who is a parent of the child under section 60H of the Family Law Act 1975; and

(c) when used in relation to a child born because of a surrogacy arrangement—includes a person who is a parent of the child under section 60HB of the Family Law Act 1975.

parental leave pay means payments of parental leave pay under this Act.

partner has the same meaning as in the Social Security Act.

payability determination means:

(a) for parental leave pay—a determination made under section 13, 14, 15, 16 or 17 that parental leave pay is, or is not, payable to a person for a child; or

(b) for dad and partner pay—a determination made under section 115BB that dad and partner pay is, or is not, payable to a person for a child.

pay cycle information: see subsection 104(3).

payday for an instalment: see section 64.

payment nominee means a person who is appointed as a payment nominee under section 280.

payroll cut‑off for an instalment that is payable to a person means the last day on which the person’s employer can reasonably make changes to the instalment to be paid to, or in relation to, the person on the person’s payday for the instalment.

permissible break: see subsection 36(1).

permissible purpose: see section 49.

PPL is short for paid parental leave.

PPL agency means:

(a) the Department; or

(b) the Human Services Department.

PPL agency representative means:

(a) for the Department—the Secretary; or

(b) for the Human Services Department—the Chief Executive Centrelink or the Chief Executive Medicare.

PPL day: see subsection 63(3).

PPL funding amount: see subsection 75(1).

PPL income limit: see section 41.

PPL period: see subsection 11(1).

PPL requirement: see subsection 287(6).

PPL rules (short for Paid Parental Leave Rules) means the rules made by the Minister under section 298.

primary carer: see section 47.

primary claim: see subsection 53(2).

primary claimant means a person who has made an effective primary claim for parental leave pay for a child.

principal in relation to a nominee, means the person in relation to whom the nominee was appointed.

protected information means:

(aa) information about a person that is or was held in the records of the Department or the Human Services Department; or

(a) information about a person that was held in the records of the Commonwealth Services Delivery Agency (within the meaning of the Commonwealth Services Delivery Agency Act 1997 as in force before 1 July 2011); or

(b) information about a person obtained by an officer under this Act that was held in the records of Medicare Australia (within the meaning of the Medicare Australia Act 1973 as in force before 1 July 2011); or

provisional indexed amount: see section 42.

qualifying period: see section 32.

qualifying work: see section 34.

reference income year:

(a) for a primary claimant or a secondary claimant—see section 39; or

(b) for a DAPP claimant—see section 115CH.

reference period:

(a) for a person claiming parental leave pay—see subsection 47(2); or

(b) for a person claiming dad and partner pay—see subsection 115CL(2).

relevant PPL income limit:

(a) for a primary claimant or a secondary claimant—see section 40; or

(b) for a DAPP claimant—see section 115CJ.

resides in Australia has the same meaning as in the Social Security Act.

returns to work: see section 48.

saved amount:

(a) for parental leave pay—see subsection 97(2); or

(b) for dad and partner pay—see subsection 115EK(2).

secondary claim: see subsection 53(3).

secondary claimant means a person who has made an effective secondary claim for parental leave pay for a child for which another person has made a primary claim.

Secretary means the Secretary of the Department.

security notice means a notice under section 278C.

Social Security Act means the Social Security Act 1991.

social security law has the same meaning as in the Social Security Act.

special category visa has the same meaning as in the Migration Act 1958.

stillborn, in relation to a child, means a child:

(a) who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks; and

(b) who has not breathed since delivery; and

subject to review: an employer determination is subject to review until:

(a) any applicable time limits for applying for a review (however described) or lodging an appeal (however described) of or in relation to the determination have expired; and

(b) if there is such a review or appeal of or in relation to the determination—the review or appeal (and any later reviews or appeals) have been finally disposed of.

tax file number has the same meaning as in section 202A of the Income Tax Assessment Act 1936.

tax file number statement: see subsection 59(1).

tertiary claim: see subsection 53(4).

tertiary claimant means a person who has made an effective tertiary claim for parental leave pay for a child for which another person has made a secondary claim.

this Act includes the PPL rules and the regulations.

transfer day: see subsections 84(3), (4) and (5).

verifies a child’s birth: see section 18.

veteran payment means a veteran payment made under an instrument made under section 45SB of the Veterans’ Entitlements Act 1986.

vocational placement means a placement that is:

(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and

(b) undertaken as a requirement of an education or training course; and

week day means a day that is not a Saturday or a Sunday.

working day means a day that is not a Saturday, a Sunday or a public holiday.

work test: see Division 3 of Part 2‑3 and sections 115CE and 115CF.

Note: Sections 115CE and 115CF and other provisions of Division 3 of Part 3A‑3 are relevant in applying the work test to claimants for dad and partner pay.

work test period:

(a) for a primary claimant or a secondary claimant—see section 33; or

(b) for a DAPP claimant—see section 115CD.

Chapter 2—When parental leave pay is payable to a person

Part 2‑1—Key provisions

Division 1—Guide to this Part

7 Guide to this Part

This Part has the key provisions for this Chapter (which deals with when parental leave pay is payable to a person).

The Secretary cannot make that determination if the person has not made a claim for parental leave pay. Part 2‑4 has the rules about claims. There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one—a secondary or tertiary claim cannot be made without it. The primary claim will often be the only claim that is made.

If the Secretary makes a determination that parental leave pay is payable to a person for a child, the parental leave pay is payable for the particular period that is specified in the determination. This period is the person’s PPL period. The maximum period for which any person may be paid parental leave pay is 18 weeks. A person’s PPL period may be the full 18 weeks or a lesser period (e.g. where the person is not eligible for parental leave pay for that full period).

If a secondary or tertiary claim is made, that claim will be for the part of the maximum 18 week period (or lesser period) in which parental leave pay was not payable to the primary claimant. The person’s employer or the Secretary will pay instalments of parental leave pay for that period (see Chapter 3 for the rules about how the person is paid parental leave pay).

Division 2—When parental leave pay is payable to a person

8 A determination must be made for parental leave pay to be payable to a person

Parental leave pay is payable to a person for a child for a period if a determination of the Secretary that parental leave pay is payable to the person for that period is in force under section 13, 14, 15, 16 or 17.

Note: See Part 2‑2 for the rules about when the Secretary can make a determination that parental leave pay is, or is not, payable to a person.

9 For the determination to be made, the person must be eligible

The Secretary cannot make a determination that parental leave pay is payable to a person for a child for a period unless the person was or will be eligible for parental leave pay during the period.

Note: See Part 2‑3 for the rules about when a person is eligible for parental leave pay.

10 For the determination to be made, the person must claim

The Secretary cannot make a determination that parental leave pay is payable to a person for a child for a period unless the person has made:

(a) an effective primary claim for the child (in which case the person is the primary claimant); or

(b) an effective secondary claim for the child (in which case the person is the secondary claimant); or

Note: See Part 2‑4 for the rules about how to make an effective claim.

11 The determination must specify the person’s PPL period

(1) If the Secretary makes a determination that parental leave pay is payable to a person for a child, the Secretary must specify, in the determination, the period for which parental leave pay is payable to the person. That period is the person’s PPL period.

Note: For a primary claimant’s PPL period, see subsections 13(3) and 14(3). For a secondary claimant’s PPL period, see subsections 14(6), 15(5) and 16(4). For a tertiary claimant’s PPL period, see subsection 17(3).

(2) A person’s PPL period must be the same as, or within, the maximum PPL period for the child.

(3) The maximum PPL period for a child is the period that:

(a) starts on the child’s maximum PPL period start day; and

(b) ends on the child’s maximum PPL period end day.

(4) The maximum PPL period start day for a child is:

(a) if, on or before the day (the relevant day) that is 28 days after the day the child was born, the primary claimant both made an effective claim for parental leave pay for the child and verified the child’s birth—the later of the following days:

(i) the day the child was born;

(ii) the primary claimant’s nominated start date; and

(b) if, on or before the relevant day, the primary claimant made an effective claim for parental leave pay for the child but did not verify the child’s birth—the later of the following days:

(i) the day the primary claimant verifies the child’s birth;

(ii) the primary claimant’s nominated start date; and

(c) if the primary claimant makes an effective claim for parental leave pay for the child after the relevant day—the later of the following days:

(i) the day the claim is made;

(ii) the primary claimant’s nominated start date.

(5) The maximum PPL period end day for a child is the earlier of the following days:

(a) the day that is 125 days after the maximum PPL period start day (which is 18 weeks from (and including) that start day);

(b) the day before the child’s first birthday.

Part 2‑2—Determinations about whether parental leave pay is payable to a person

Division 1—Guide to this Part

12 Guide to this Part

This Part is about the Secretary making determinations about whether parental leave pay is payable to a person. These determinations are payability determinations. A person cannot be paid parental leave pay unless there is a payability determination that parental leave pay is payable to the person.

Division 2 has the rules that apply to the Secretary when making a payability determination. Different rules apply depending on the type of claim and, for a primary or secondary claim, whether it was made by itself or at the same time as another claim.

Division 3 has restrictions that apply in particular circumstances to prevent the Secretary from making a payability determination that parental leave pay is payable to a person (for example, where the child’s birth has not been verified or the person has already been paid parental leave pay for the child).

Division 4 has general rules that apply to payability determinations (for example, if the Secretary makes a determination, the Secretary must give a notice of it to the claimant).

Division 5 deals with initial eligibility determinations. These determinations can be made by the Secretary before the Secretary makes a payability determination. The Secretary can make an initial eligibility determination if the Secretary is satisfied that the person satisfies, or will satisfy, particular eligibility criteria (the work test, the income test and the Australian residency test). If the Secretary makes a determination, the Secretary must give a notice of it to the claimant.

Division 2—Determinations about whether parental leave pay is payable to a person

13 Determination on a primary claim made alone

When a claim is to be determined under this section

(1) If:

(a) a primary claimant has made an effective primary claim for parental leave pay for a child; and

(b) another person has not made an effective secondary claim for parental leave pay for the child at the same time;

the Secretary must make a determination on the primary claim under this section.

When parental leave pay is payable to primary claimant

(2) The Secretary must determine that parental leave pay is payable to the primary claimant for the primary claimant’s PPL period if, when making the determination, the Secretary is satisfied that the primary claimant was or will be eligible for parental leave pay on each day in the period that:

(a) starts on the day the child was born; and

(b) ends on the last day of the primary claimant’s PPL period.

Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Primary claimant’s PPL period

(3) The Secretary must specify in the determination under subsection (2) that the primary claimant’s PPL period:

(a) starts on the child’s maximum PPL period start day; and

(b) ends on:

(i) if the Secretary is satisfied that the primary claimant was or will be eligible on each day in the child’s maximum PPL period—the child’s maximum PPL period end day; or

(ii) if the Secretary is satisfied that the primary claimant was or will be eligible for a period that is shorter than the child’s maximum PPL period—the last day in the child’s maximum PPL period that the primary claimant was or will be eligible.

When parental leave pay is not payable to primary claimant

(4) The Secretary must determine that parental leave pay is not payable to the primary claimant if the Secretary is not satisfied of the matters in subsection (2).

14 Determination on primary and secondary claims made jointly—claimants sharing parental leave pay

When a claim is to be determined under this section

(1) If:

(a) a primary claimant has made an effective primary claim for parental leave pay for a child; and

(b) a secondary claimant has made an effective secondary claim for parental leave pay for the child at the same time; and

(c) in the primary claim, the primary claimant requested that parental leave pay that is or may be payable for the child be shared between the primary claimant and the secondary claimant;

the Secretary must make a determination on the primary claim and the secondary claim under this section.

When parental leave pay is payable to primary claimant

(a) starts on the day the child was born; and

(b) ends on the last day of the primary claimant’s PPL period.

Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Primary claimant’s PPL period

(3) The Secretary must specify in the determination under subsection (2) that the primary claimant’s PPL period:

(a) starts on the child’s maximum PPL period start day; and

(b) ends on the last day in the child’s maximum PPL period that the Secretary is satisfied that the primary claimant was or will be eligible.

When parental leave pay is not payable to primary claimant

(4) The Secretary must determine that parental leave pay is not payable to the primary claimant if the Secretary is not satisfied of the matters in subsection (2).

When parental leave pay is payable to secondary claimant

(5) The Secretary must determine that parental leave pay is payable to the secondary claimant for the secondary claimant’s PPL period if, when making the determination, the Secretary is satisfied that:

(a) a determination has been made under subsection (2) for the primary claimant; and

(b) the secondary claimant was or will be eligible for parental leave pay on each day in the secondary claimant’s PPL period.

Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Secondary claimant’s PPL period

(6) The Secretary must specify in the determination under subsection (5) that the secondary claimant’s PPL period:

(a) starts on the first day after the primary claimant’s PPL period ends; and

(b) ends on:

(i) if the Secretary is satisfied that the secondary claimant was or will be eligible on each day that remains in the child’s maximum PPL period—the child’s maximum PPL period end day; or

(ii) otherwise—the last day in the child’s maximum PPL period that the Secretary is satisfied that the secondary claimant was or will be eligible.

When parental leave pay is not payable to secondary claimant

(7) The Secretary must determine that parental leave pay is not payable to the secondary claimant if the Secretary is not satisfied of the matters in subsection (5).

15 Determination on primary and secondary claims made jointly—secondary claimant to get all the parental leave pay

When a claim is to be determined under this section

(1) If:

(a) a primary claimant has made an effective primary claim for parental leave pay for a child; and

(b) a secondary claimant has made an effective secondary claim for parental leave pay for the child at the same time; and

(c) in the primary claim, the primary claimant requested that the secondary claimant be paid the full amount of parental leave pay that is or may be payable for the child;

the Secretary must make a determination on the primary claim and the secondary claim under this section.

When parental leave pay is not payable to primary claimant

(2) The Secretary must determine that parental leave pay is not payable to the primary claimant.

When parental leave pay is payable to secondary claimant

(3) The Secretary must determine that parental leave pay is payable to the secondary claimant for the secondary claimant’s PPL period if, when making the determination, the Secretary is satisfied that:

(a) the primary claimant:

(i) satisfies the work test and income test on that day; and

(ii) satisfied the Australian residency test on the day the child was born; and

(b) the secondary claimant was or will be eligible for parental leave pay on each day in the secondary claimant’s PPL period; and

(c) if the secondary claimant’s PPL period starts after the day the child was born—subsection (4) applies to the period that:

(i) starts on the day the child was born; and

(ii) ends on the day before the start of the secondary claimant’s PPL period.

Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

(4) This subsection applies to the period referred to in paragraph (3)(c) if:

(a) the primary claimant was or will be eligible for parental leave pay on each day in that period; or

(b) the secondary claimant was or will be eligible for parental leave pay on each day in that period; or

(i) the primary claimant was or will be eligible for parental leave pay on each day in the first part of that period;

(ii) the secondary claimant was or will be eligible for parental leave pay on each day in the last part of that period.

Secondary claimant’s PPL period

(5) The Secretary must specify in the determination under subsection (3) that the secondary claimant’s PPL period:

(a) starts on the maximum PPL period start day; and

(b) ends on:

(i) if the Secretary is satisfied that the secondary claimant was or will be eligible on each day in the child’s maximum PPL period—the child’s maximum PPL period end day; or

(ii) if the Secretary is satisfied that the secondary claimant was or will be eligible for a period that is shorter than the child’s maximum PPL period—the last day in the child’s maximum PPL period that the Secretary is satisfied that the secondary claimant was or will be eligible.

When parental leave pay is not payable to secondary claimant

(6) The Secretary must determine that parental leave pay is not payable to the secondary claimant if the Secretary is not satisfied of the matters in subsection (3).

16 Determination on a secondary claim made after the primary claim

When a claim is to be determined under this section

(1) If:

(a) a primary claimant makes an effective primary claim for parental leave pay for a child; and

(b) a secondary claimant makes an effective secondary claim for parental leave pay for the child at a later time;

the Secretary must make a determination on the secondary claim under this section.

(2) However, the Secretary cannot make a determination on the secondary claim under this section until the Secretary has first made a determination on the primary claim.

When parental leave pay is payable to secondary claimant

(a) a determination under section 13 or 14 that parental leave pay is payable to the primary claimant was or will be in force on the day before the start of the secondary claimant’s PPL period; and

(b) the secondary claimant was or will be eligible for parental leave pay for the child on each day in the secondary claimant’s PPL period.

Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Secondary claimant’s PPL period

(4) The Secretary must specify in the determination under subsection (3) that the secondary claimant’s PPL period:

(a) starts on the first day after the primary claimant’s PPL period ends; and

(b) ends on:

(i) if the Secretary is satisfied that the secondary claimant was or will be eligible on each day that remains in the child’s maximum PPL period—the child’s maximum PPL period end day; or

(ii) otherwise—the last day in the child’s maximum PPL period that the Secretary is satisfied the secondary claimant was or will be eligible.

When parental leave pay is not payable to secondary claimant

(5) The Secretary must determine that parental leave pay is not payable to the secondary claimant if the Secretary is not satisfied of the matters in subsection (3).

17 Determination on a tertiary claim

When a tertiary claim is to be determined under this section

(1) If a tertiary claimant makes an effective tertiary claim for parental leave pay for a child, the Secretary must make a determination on the tertiary claim under this section.

When parental leave pay is payable to tertiary claimant

(2) The Secretary must determine that parental leave pay is payable to the tertiary claimant for the tertiary claimant’s PPL period if, when making the determination, the Secretary is satisfied that:

(a) a determination under section 14, 15 or 16 that parental leave pay is payable to the secondary claimant was or will be in force on the day before the start of the tertiary claimant’s PPL period; and

(b) the tertiary claimant was or will be eligible for parental leave pay on each day in the tertiary claimant’s PPL period.

Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Tertiary claimant’s PPL period

(3) The Secretary must specify in the determination under subsection (2) that the tertiary claimant’s PPL period:

(a) starts on the first day after the secondary claimant’s PPL period ends; and

(b) ends on:

(i) if the Secretary is satisfied that the tertiary claimant was or will be eligible on each day that remains in the child’s maximum PPL period—the child’s maximum PPL period end day; or

(ii) otherwise—the last day in the child’s maximum PPL period that the Secretary is satisfied the tertiary claimant was or will be eligible.

When parental leave pay is not payable to tertiary claimant

(4) The Secretary must determine that parental leave pay is not payable to the tertiary claimant if the Secretary is not satisfied of the matters in subsection (2).

Division 3—When the Secretary cannot make a determination that parental leave pay is payable

18 The child’s birth has not been verified

(1) The Secretary must not make a payability determination that parental leave pay is payable to a person for a child unless the primary claimant has verified the child’s birth.

Verifying a child’s birth

(2) A person verifies a child’s birth if:

(a) the person gives the Secretary a completed birth verification form for the child; and

(b) if subsection (3) applies to the person, the person satisfies the requirement of that subsection.

(3) If:

(a) the person is the parent (other than an adoptive parent) of the child; and

(b) the child is not stillborn; and

(c) the person is, under a law of a State or a Territory, responsible (whether alone or jointly) for registering the birth of the child under the law;

then the person must give the Secretary information showing that:

(d) the child’s birth has been registered under the law; or

(e) the person has applied to have the birth of the child registered under the law.

(4) The Secretary may approve a form (a birth verification form) for the purposes of verifying the birth of a child.

19 The child was born before 1 January 2011

The Secretary must not make a payability determination that parental leave pay is payable to a person for a child if the child was born before 1 January 2011.

20 Multiple births

The Secretary must not make a payability determination that parental leave pay is payable to a person for a child if:

(a) the child and another child are born during the same multiple birth; and

(b) parental leave pay is or was payable to the person or another person for the other child.

21 Parental leave pay is already payable to the person etc.

(1) The Secretary must not make a payability determination that parental leave pay is payable to a person for a child if:

(a) there is in force another payability determination that parental leave pay is payable to the person for the child, in respect of a different claim made by the person; or

(b) if the person is the primary claimant—there is in force a payability determination that parental leave pay is payable to:

(i) the person’s partner for the child; or

(ii) the person’s former partner (when he or she was the person’s partner) for the child; or

(c) if the person is the secondary claimant—there is in force a payability determination that parental leave pay is payable to:

(i) the person’s partner for the child (other than as the primary claimant to which the person’s secondary claim relates); or

(ii) the person’s former partner (when he or she was the person’s partner) for the child (other than as the primary claimant to which the person’s secondary claim relates).

(2) Subsection (1) does not apply to a claim that is made in exceptional circumstances.

Division 4—General provisions applying to determinations about whether parental leave pay is payable

22 Assumptions when making the determination

In deciding whether to make a payability determination about parental leave pay, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.

23 When the determination is in force

A payability determination about parental leave pay comes into force on the day it is made and continues in force unless it is:

(a) revoked under section 25 (which deals with revoking a payability determination on the claimant’s request); or

(b) set aside under Chapter 5 (which deals with review of decisions).

24 Notice of the determination

If the Secretary makes a payability determination about parental leave pay, the Secretary must give a notice of the determination to the claimant, stating:

(a) whether parental leave pay is payable; and

(b) if parental leave pay is payable—the claimant’s PPL period; and

25 Revoking the determination on request

(1) If:

(a) a payability determination is made that parental leave pay is payable to a person; and

(b) the person requests the Secretary to revoke the determination; and

(i) before the start of the person’s PPL period; and

(ii) in a manner approved by the Secretary;

then the Secretary must revoke the determination.

(2) The revocation is taken to have come into force on the day the person requested the Secretary to revoke the determination.

Division 5—Initial eligibility determinations about parental leave pay

26 Initial eligibility determinations

Primary claimants

(1) If a person makes an effective primary claim, the Secretary may make a determination (the initial eligibility determination) that the person is initially eligible for parental leave pay for the child if, when making the determination, the Secretary is satisfied that the person satisfies:

(a) the work test; and

(b) the income test; and

Secondary claimants

(2) If a person makes an effective secondary claim, the Secretary may make a determination (the initial eligibility determination) that the person is initially eligible for parental leave pay for the child if, when making the determination, the Secretary is satisfied that the person:

(a) satisfies:

(i) the work test; and

(ii) the income test; and

(iii) the Australian residency test; or

(b) will satisfy those tests on the day the person becomes the child’s primary carer.

27 Assumptions when making the initial eligibility determination

In deciding whether to make an initial eligibility determination about parental leave pay, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.

28 When the initial eligibility determination comes into force

An initial eligibility determination about parental leave pay comes into force on the day it is made.

29 Notice of the initial eligibility determination

If the Secretary makes an initial eligibility determination about parental leave pay, the Secretary must give a notice of the determination to the claimant.

Part 2‑3—Eligibility for parental leave pay

Division 1—Guide to this Part

30 Guide to this Part

This Part sets out when a person is eligible for parental leave pay. The Secretary cannot make a payability determination that parental leave pay is payable if the person is not eligible for it.

Division 2 sets out when a person is eligible for parental leave pay. Subsection 31(2) deals with the main case and requires that for a person to be eligible for parental leave pay for a child, the person must (broadly):

(a) satisfy the work test, the income test and the Australian residency test; and

(b) be the child’s primary carer; and

There are other eligibility criteria that apply for more unusual cases—see subsection 31(3) (which deals with when a child is stillborn or dies) and subsection 31(4) (which allows the PPL rules to prescribe eligibility criteria).

Division 3 has the work test. To satisfy the work test, a person must have performed enough paid work or taken enough paid leave in a particular period before the day the child was born (for a primary claimant) or the day the person became the child’s primary carer (for a secondary claimant). A previous PPL period and previous DAPP period of the person may be taken into account in working out whether the person satisfies the work test for a subsequent child. Special rules apply in the case of premature birth or complications or illness related to the pregnancy (see section 36A) or if the person is already eligible for dad and partner pay (see section 36B).

Division 4 has the income test. To satisfy the income test, the person’s income for a particular income year must not be more than the PPL income limit (which is $150,000 until 30 June 2020 and then indexed. A special rule applies if the person is already eligible for dad and partner pay (see subsection 37(2)).

Division 5 has the Australian residency test. To satisfy this test, the person must be an Australian resident or be in a special class of visa holder.

Division 6 sets out when a person is the primary carer of a child. For the main case, a person will not be eligible for parental leave pay if the person is not the child’s primary carer.

Division 7 sets out when a person returns to work after the birth of a child. For the main case, a person will not be eligible for parental leave pay if the person performs more than one hour of work other than for a permissible purpose. There are 2 permissible purposes. One is where the person performs the work for another entity on a keeping in touch day with that entity. The other is where the person performs the work for a business that the person carries on and the work consists of overseeing the business or is an occasional administrative task.

Division 2—When a person is eligible for parental leave pay

31 When a person is eligible for parental leave pay

(1) This section sets out when a person is eligible for parental leave pay for a child on a day.

Eligible

(2) First, a person is eligible for parental leave pay for a child on a day if, on that day:

(a) the person satisfies the work test (see Division 3); and

(b) the person satisfies the income test (see Division 4); and

(d) the person is the primary carer of the child (see Division 6); and

(e) the person has not returned to work (see Division 7).

(3) Second, a person is eligible for parental leave pay for a child on a day if:

(a) the child is stillborn or has died before that day; and

(b) on that day, the person would be eligible under subsection (2) for parental leave pay for the child, if paragraphs (2)(d) and (e) were disregarded; and

(4) Third, a person is eligible for parental leave pay for a child on a day if, on that day:

(a) if the person is the primary claimant:

(i) the person satisfies the work test (see Division 3); and

(ii) the person satisfies the income test (see Division 4); and

(iii) the person satisfies the Australian residency test (see Division 5); and

(iv) the person satisfies the conditions prescribed by the PPL rules; and

(b) if the person is a secondary claimant or tertiary claimant—the person satisfies the conditions prescribed by the PPL rules.

Not eligible—overlap with DAPP period

(4A) If there is in force a payability determination that dad and partner pay is payable to a person for a child for the person’s DAPP period, then, despite subsections (2), (3) and (4), the person is not eligible for parental leave pay for the child on a day that is in the DAPP period.

Not eligible—excess days

(4B) Despite subsections (2), (3) and (4), if:

(a) there is in force a payability determination that dad and partner pay is payable to a person for a child for the person’s DAPP period; and

(b) combined, the total days in the DAPP period and the reference period for the person’s claim for parental leave pay for the child exceed 126;

then:

(d) the person is not eligible for parental leave pay for the child on a day excluded by the Secretary.

Not eligible—claimant deceased

(5) Despite subsections (2), (3) and (4), a person is not eligible for parental leave pay for a child on a day if, on that day, the person is deceased.

Division 3—The work test

32 When a person satisfies the work test

To work out whether a person satisfies the work test on a day, use the following method statement:

Method statement

Step 1. Work out the person’s work test period.

Note: Work test period is defined in section 33 for primary claimants and secondary claimants and in section 115CD for DAPP claimants.

Step 2. Work out the days in the work test period on which the person has and has not performed qualifying work.

Note: Qualifying work is defined in section 34.

Step 3. Work out whether any days on which the person has not performed qualifying work during the work test period fall within a permissible break.

Note: Permissible break is defined in section 36.

Step 4. Work out whether there is a period (a qualifying period) of 295 consecutive days in the work test period that are days:

(a) on which the person has performed qualifying work; or

(b) that fall within a permissible break.

Step 5. If the person has performed at least 330 hours of qualifying work in a qualifying period, the person satisfies the work test.

Note 1: A person may also satisfy the work test despite not satisfying the test in step 5, if:

(a) the child was born prematurely; or

(b) while the person was pregnant with the child, the person had complications or illness related to the pregnancy which prevented the person from performing paid work.

See sections 36A (for claimants for parental leave pay) and 115CE (for DAPP claimants).

Note 2: Section 36B is an alternative way of satisfying the work test for a person claiming parental leave pay who is already eligible for dad and partner pay. An equivalent provision is in section 115CF for a DAPP claimant who is already eligible for parental leave pay.

Note 3: If the person performs qualifying work on a day because of paragraph (c) or (d) of the definition of qualifying work in subsection 34(1), see section 35A to work out the hours of qualifying work the person is taken to have performed on the day.

33 The work test period

Primary claimant’s work test period

(1) The work test period for a primary claimant is the 392 days immediately before:

(a) if the child is born on or before the expected date of birth of the child—the day the child is born; or

(b) if the child is born after the expected date of birth of the child—either:

(i) the day the child is born; or

(ii) if the person does not satisfy the work test in the work test period that applies under subparagraph (i), the expected date of birth of the child.

(2) However, for the purposes of making an initial eligibility determination on a primary claim that is made before the child is born, the work test period for the primary claimant is the 392 days immediately before the expected date of birth of the child.

Secondary claimant’s work test period

(3) The work test period for a secondary claimant is the 392 days immediately before the day the person becomes the child’s primary carer.

Note: For the work test period for a DAPP claimant, see section 115CD.

34 When a person performs qualifying work

(1) A person performs qualifying work on a day if at least one of the following applies on the day:

(a) the person performs at least one hour of paid work;

(b) the person takes a period of paid leave of at least one hour;

(d) the day is in the person’s DAPP period for a previous child.

(2) For the purposes of paragraph (1)(b), the PPL rules may prescribe what is, or is not, taken to be paid leave.

35 When a person performs paid work

People other than self‑employed

(1) A person performs paid work on a day if, on that day, the person performs work (whether as an employee, a contractor or otherwise and whether or not in Australia) for another entity for remuneration or other financial benefit.

(2) However, a person is taken not to perform paid work for the purposes of subsection (1) if the other entity is controlled by the person (whether alone or with others).

Self‑employed

(3) A person performs paid work on a day if, on that day, the person performs work for the purposes of a business that is carried on for profit (whether in or outside of Australia) by:

(a) the person (whether alone or with others); or

(b) an entity that is controlled by the person (whether alone or with others).

When a person controls an entity

(4) A person controls an entity if the person has the capacity to determine the outcome of decisions about the entity’s financial and operating policies.

PPL rules about what paid work is

(5) The PPL rules may prescribe what is, or is not, taken to be paid work.

35A Hours of qualifying work on a day in a PPL or DAPP period

If person does not perform paid work or take paid leave in previous PPL or DAPP period

(1) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day only because the day is in the person’s PPL period or DAPP period for a previous child, the person is taken to have performed on that day:

(a) 7.6 hours of work, if the day is a week day; and

(b) no hours of work, if the day is a Saturday or Sunday.

If person performs paid work in previous PPL or DAPP period

(2) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day because both:

(a) the person performs at least one hour of paid work on the day; and

(b) the day is in the person’s PPL period or DAPP period for a previous child;

the person is taken to have performed on that day the greater of:

(d) the number of hours of paid work performed by the person on that day.

Note: Paid work for a permissible purpose could be performed during a person’s PPL period or DAPP period for a previous child (see Division 7 of this Part and Division 7 of Part 3A‑3).

If person takes paid leave in previous PPL or DAPP period

(3) For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day because both:

(a) the person takes a period of paid leave of at least one hour on the day; and

(b) the day is in the person’s PPL period or DAPP period for a previous child;

the person is taken to have performed on that day the greater of:

(d) the number of hours of paid leave taken by the person on that day.

36 When there is a permissible break

(1) A permissible break is any of the periods in subsections (2) and (3).

Permissible break between 2 qualifying work days

(2) If, between a day on which the person performed qualifying work (a qualifying work day) in the work test period and the next qualifying work day, there was at least 1 day but not more than 56 consecutive days on which the person did not perform qualifying work—the day or period of consecutive days between those 2 qualifying work days is a permissible break.

Permissible break at the start of the work test period

(3) If:

(a) a person performed qualifying work on a day (the earlier qualifying work day) before the first day in the work test period; and

(b) the person next performed qualifying work on a day (the later qualifying work day) after the first day in the work test period; and

then the day or period of consecutive days on which the person did not perform qualifying work between the first day in the work test period and the later qualifying work day (including the first day of the work test period) is a permissible break.

36A Premature birth or pregnancy‑related complications or illness

A person also satisfies the work test on a day if:

(a) the person is the birth mother of the child; and

(b) the Secretary is satisfied that either or both of the following circumstances existed:

(i) the child was born prematurely;

(ii) while the person was pregnant with the child, the person had complications or illness related to the pregnancy which prevented the person from performing paid work; and

(c) the Secretary is satisfied that the person would have satisfied the work test on the day in accordance with section 32 if that circumstance, or those circumstances, had not existed.

36B Claimant for parental leave pay who is already eligible for dad and partner pay

A claimant for parental leave pay also satisfies the work test on a day if the Secretary is satisfied that the claimant is eligible for dad and partner pay for the child.

Note: See section 115CF for an equivalent provision for a DAPP claimant.

Division 4—The income test

Subdivision A—The income test

37 When a person satisfies the income test

(1) A person satisfies the income test on a day if the person’s adjusted taxable income for the reference income year is not more than the relevant PPL income limit.

(2) A claimant for parental leave pay also satisfies the income test on a day if the Secretary is satisfied that the claimant is eligible for dad and partner pay for the child.

Note: See subsection 115CG(2) for an equivalent provision for a DAPP claimant.

38 A person’s adjusted taxable income

A person’s adjusted taxable income for an income year is worked out in accordance with Schedule 3 to the Family Assistance Act (disregarding subclause 2(2) and clauses 3 and 3A of that Schedule).

Note: Schedule 3 to the Family Assistance Act sets out how to work out a person’s adjusted taxable income for the purposes of that Act.

39 The reference income year

The reference income year for a person is:

(a) if the person is a primary claimant—the income year that ended before the earlier of:

(i) the day the person made the claim; and

(ii) the day the child was born; and

(b) if the person is a secondary claimant—the income year that ended before the earlier of:

(i) the day the person made the claim; and

(ii) the day the person became the child’s primary carer.

Note: For the reference income year for a DAPP claimant, see section 115CH.

40 The relevant PPL income limit

The relevant PPL income limit for a person is:

(a) if the person is a primary claimant—the PPL income limit that applies on the earlier of the following days:

(i) the day the person made the claim;

(ii) the day the child was born; or

(b) if the person is a secondary claimant—the PPL income limit that applies on the earlier of the following days:

(i) the day the person made the claim;

(ii) the day the person became the child’s primary carer.

Note: For the relevant PPL income limit for a DAPP claimant, see section 115CJ.

41 The PPL income limit

The PPL income limit that applies on a day is:

(a) if the day is on or after 1 October 2010 but before 1 July 2020—$150,000; and

(b) if the day is on or after an indexation day (the relevant indexation day) but before the next indexation day—the indexed amount on the relevant indexation day worked out under Subdivision B.

Subdivision B—Indexation of the PPL income limit

42 Indexation of the PPL income limit

(1) The amount of the PPL income limit in section 41 is to be indexed under this Subdivision on 1 July each year (the indexation day) starting on 1 July 2020.

Working out the indexed amount for the PPL income limit

(2) This is how to work out the indexed amount for the PPL income limit on the indexation day:

Method statement

Step 1. Work out the amount (the previous amount) for the PPL income limit that applied on the day immediately before the indexation day.

Step 2. Use section 43 to work out the indexation factor on the indexation day.

Step 3. Multiply the previous amount by the indexation factor: the result is the provisional indexed amount.

Step 4. Use section 44 to round off the provisional indexed amount: the result is the indexed amount.

43 The indexation factor

(1) The indexation factor is worked out using the following formula and applying subsections (2) and (3):

where:

base December quarter means the December quarter that has the highest index number of the December quarters before the reference December quarter (but not earlier than the December quarter 2007).

index number, for a quarter, means the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician in relation to that quarter.

reference December quarter means the last December quarter before the indexation day.

(2) The indexation factor is to be worked out to 3 decimal places, but increased by 0.001 if the fourth decimal place is more than 4.

(3) If an indexation factor worked out under subsections (1) and (2) would be less than 1, that indexation factor is to be increased to 1.

Changes to CPI reference base and publication of substituted index numbers

(4) Amounts are to be worked out under this section:

(a) using only the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and

(b) disregarding index numbers published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the reference base).

44 Rounding off indexed amounts

(1) If a provisional indexed amount is a multiple of $1.00, the provisional indexed amount becomes the indexed amount.

(2) If a provisional indexed amount is not a multiple of $1.00, the indexed amount is the provisional indexed amount rounded up or down to the nearest multiple of $1.00.

(3) If a provisional indexed amount is not a multiple of $1.00 but is a multiple of $0.50, the indexed amount is the provisional indexed amount rounded up to the nearest multiple of $1.00.

Division 5—The Australian residency test

45 When a person satisfies the Australian residency test

(1) A person satisfies the Australian residency test on a day if, on that day, the person:

(a) is an Australian resident; or

(b) is a special category visa holder residing in Australia; or

When a person satisfies this subsection

(2) A person satisfies this subsection if:

(a) the person is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act; and

(b) either:

(i) the person is in Australia; or

(ii) the person is temporarily absent from Australia for not more than 6 weeks and the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.

46 Effect of absence from Australia on Australian residency test

(1) Despite section 45, a person does not satisfy the Australian residency test on a day (the relevant day) if:

(a) before the relevant day, the person left Australia; and

(b) on the relevant day, the person has been absent from Australia for more than 56 weeks since the day the person left Australia.

Effect of a person’s return to Australia within 56 weeks

(2) If:

(a) a person who has been absent from Australia for more than 6 weeks, but not more than 56 weeks, returns to Australia; and

(b) the person leaves Australia again less than 6 weeks later;

then the person is taken not to have returned to Australia for the purposes of subsection (1).

Effect of a person’s return to Australia after 56 weeks

(3) If:

(a) a person satisfies the Australian residency test while the person is absent from Australia; and

(b) the person then ceases to satisfy the Australian residency test because of the application of subsection (1) or a previous application of this subsection; and

(d) the person leaves Australia again less than 6 weeks later;

then, despite section 45, the person does not satisfy the Australian residency test at any time during:

(e) the person’s return to Australia referred to in paragraph (c); or

(f) the person’s absence from Australia referred to in paragraph (d).

Extension of 56 week period for Australian Defence Force and Australian Federal Police deployments

(4) The Secretary may extend the 56 week period referred to in subsection (1) or (2), to a period of no more than 3 years, if the Secretary is satisfied that the person is unable to return to Australia within the 56 week period because the person is:

(a) deployed outside Australia as a defence force member, under conditions specified in a determination made under the Defence Act 1903 that relates to such deployment; or

(b) deployed outside Australia, for the purpose of capacity‑building or peacekeeping functions, as:

(i) a member or a special member of the Australian Federal Police; or

(ii) a protective service officer within the meaning of the Australian Federal Police Act 1979.

Extension of 56 week period for events or circumstances prescribed in the PPL rules

(5) The Secretary may extend the 56 week period referred to in subsection (1) or (2), to a period of no more than 3 years, if the Secretary is satisfied that:

(a) the person is unable to return to Australia within the 56 week period because of an event prescribed by the PPL rules; or

(b) a circumstance prescribed by the PPL rules applies.

Division 6—Primary carer

47 When a person is the primary carer of a child

(1) A person is the primary carer of a child on a day in the person’s reference period if:

(a) the child is in the person’s care in that period; and

(b) the person meets the child’s physical needs more than anyone else in that period.

(2) A person’s reference period is the period that is determined by the Secretary for the purposes of making a payability determination on the person’s claim.

(3) Only one person can be a child’s primary carer on a particular day.

(4) Despite subsection (1), a person is not the primary carer of a child on a day if, before that day, the child has died.

Division 7—Return to work

48 When a person returns to work

A person returns to work on a day that is on or after the birth of a child if, on that day, the person performs one hour or more of paid work other than for a permissible purpose.

49 When paid work is for a permissible purpose

Permissible purpose for people other than self‑employed

(1) If a person performs paid work on a day for another entity (see subsection 35(1)), the person does so for a permissible purpose if:

(a) the person performs the work for the entity as an employee, defence force member or law enforcement officer; and

(b) the day is a keeping in touch day with the entity and would otherwise be a day of leave in a period of leave granted by that entity; and

(c) the person has not already performed paid work on 10 keeping in touch days (whether with the entity or another entity).

Permissible purpose for self‑employed

(2) If a person performs paid work on a day for a business in the situation referred to in subsection 35(3), the person does so for a permissible purpose if the work performed by the person consists of overseeing the business or is an occasional administrative task for the purposes of the business.

50 Performing paid work on a keeping in touch day

A day on which a person performs paid work for an entity on a day that would otherwise be a day of leave in a period of leave granted by that entity is a keeping in touch day if:

(a) the purpose of performing the work is to enable the person to keep in touch with his or her employment or engagement in order to facilitate a return to that employment or engagement after the end of the period of leave; and

(b) both the person and the entity consent to the person performing work for the entity on that day; and

(i) if the person suggested or requested that he or she perform work for the entity on that day—14 days after the day the child was born; or

(ii) otherwise—42 days after the day the child was born.

Note 1: Performance of work on keeping in touch days is also dealt with, for the purposes of unpaid parental leave, in section 79A of the Fair Work Act 2009.

Note 2: The employer will be obliged, under the relevant contract of employment or industrial instrument, to pay the employee for performing work on a keeping in touch day.

Note 3: Section 344 of the Fair Work Act 2009 prohibits the exertion of undue influence or undue pressure on the person in relation to a decision by the person whether to consent to performing work on keeping in touch days: see subsection 79A(3) of that Act.

Note 4: That section, and section 343 of that Act, contain other prohibitions on coercion and undue influence or pressure.

Part 2‑4—Claims for parental leave pay

Division 1—Guide to this Part

51 Guide to this Part

This Part is about claims for parental leave pay. A person cannot be paid parental leave pay unless the person has first made a claim for it.

Division 2 sets out the rules about claims. There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one—a secondary or tertiary claim cannot be made without it. However, it will often be the only claim that is made. Section 54 sets out who can make a primary claim, a secondary claim or a tertiary claim.

The Secretary cannot make a payability determination on a claim unless it is an effective claim. To be effective, the claim must be made by the right person and satisfy the requirements in the provisions listed in section 55. One of those requirements is that the claim must be in the form, and contain the information, required by the Secretary (see section 56). Another requirement is that the claim must be made in the period set out in section 60.

Division 2—Claims for parental leave pay

52 Who can claim

Only a natural person can make a claim for parental leave pay.

53 Types of claims

(1) There are 3 types of claims for parental leave pay:

(a) a primary claim; and

(b) a secondary claim; and

(2) A primary claim is a claim in the form approved by the Secretary for primary claims.

(3) A secondary claim is a claim in the form approved by the Secretary for secondary claims.

(4) A tertiary claim is a claim in the form approved by the Secretary for tertiary claims.

(5) For the purposes of subsections (2), (3) and (4), the Secretary may approve:

(a) different forms for different types of claims; and

(b) different forms for the same type of claim.

54 Who can make a primary claim, secondary claim or tertiary claim

Primary claim

(1) Only the following people can make a primary claim for a child:

(a) the child’s birth mother;

(b) an adoptive parent of the child;

(c) a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a primary claim can be made.

Secondary claim

(2) Only the following people can make a secondary claim for a child:

(a) the partner of a primary claimant;

(b) a person who:

(i) is a parent of the child; and

(ii) is not the primary claimant;

(d) a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a secondary claim can be made.

Tertiary claim

(3) Only a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a tertiary claim can be made can make a tertiary claim for a child.

55 When a claim is effective

(1) A claim for parental leave pay is not effective unless the requirements of the following provisions that apply to the claim are satisfied:

(a) section 56 (which deals with the form etc. of the claim);

(b) section 57 (which deals with the nominated start date);

(d) section 59 (which deals with tax file number statements);

(e) section 60 (which deals with when to make the claim).

(2) A claim for parental leave pay is also not effective if it is made by a person who cannot make that type of claim under section 54.

(3) A claim for parental leave pay that is not effective is taken not to have been made.

56 Requirements of the claim

(1) The claim for parental leave pay must:

(a) be made in the form approved, and the manner required, by the Secretary for that type of claim; and

(b) contain any information (including information about the claimant’s employer or the claimant’s employment with that employer) required by the Secretary; and

(2) For the purposes of paragraphs (1)(b) and (c), the Secretary may require that different information be contained in, and different documents accompany:

(a) different types of claims; or

(b) different claims of the same type of claim.

57 Nominated start date

(1) If the claim is a primary claim, the claim must state a specific date (the nominated start date) on which the primary claimant wants parental leave pay to start being paid.

Note 1: For the purposes of subsection (1), “6 months after the birth of the child” would not be a specific date. However, the “date of birth of the child” would be.

Note 2: Even though a primary claimant nominates a specific date, parental leave pay may not be payable from that date because, for example, the primary claimant has not verified the child’s birth before that date: see subsection 11(4).

(2) Before a payability determination is made on the primary claim, the primary claimant may change his or her nominated start date by notifying the Secretary of the new nominated start date.

(3) If a payability determination is made that parental leave pay is payable to the primary claimant, the primary claimant may only change his or her nominated start date (the old date) by:

(a) notifying the Secretary, before the old date, of the new nominated start date; and

(b) nominating a new nominated start date that is on or after the day the person notifies the Secretary of the change.

58 Expected date of birth and expected day of primary care

Primary claim

(1) If the claim is a primary claim and it is made before the child’s birth, the claim must specify the child’s expected date of birth.

Secondary claim

(2) If the claim is a secondary claim and it is made before the day the secondary claimant expects to become the child’s primary carer, the claim must specify the day the claimant expects to become the child’s primary carer.

59 Tax file number statement

(1) The claim for parental leave pay must contain the person’s tax file number statement, which is a statement of the kind set out in subsection (2), (3) or (4).

Statement of tax file number

(2) The first kind is a statement of the person’s tax file number.

Statement that person does not know his or her tax file number

(3) The second kind is a statement that the person:

(a) has a tax file number but does not know what it is; and

(b) has asked the Commissioner of Taxation to inform the person of his or her tax file number; and

(i) whether the person has a tax file number; and

(ii) if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

(4) The third kind is a statement that the person:

(a) has an application for a tax file number pending; and

(b) authorises the Commissioner of Taxation to tell the Secretary:

(i) if a tax file number is issued to the person—that number; or

(ii) if the application is refused—that the application has been refused; or

(iii) if the application is withdrawn—that the application has been withdrawn.

60 When to claim

A claim for parental leave pay must be made in the period that:

(a) starts on the day that is 97 days before the expected date of birth of the child; and

(b) ends on the day before the child’s first birthday.

61 Claim may be withdrawn or varied

(1) After making an effective claim for parental leave pay, the person may withdraw or vary the claim before a payability determination is made on it.

(2) The person may only do so in a manner approved by the Secretary.

(3) If a claim for parental leave pay is withdrawn, it is taken never to have been made.

Chapter 3—Payment of parental leave pay

Part 3‑1—Instalments of parental leave pay

Division 1—Guide to this Part

62 Guide to this Part

This Part is about instalments of parental leave pay.

Parental leave pay is payable in instalments for regular periods called instalment periods. Instalments are payable to a person if those instalment periods overlap with the person’s PPL period.

Instalments are payable by either a person’s employer (see Part 3‑2) or the Secretary (see Part 3‑3).

This Part also contains rules for working out the amount of an instalment and deals with the deductions that may be made from an instalment.

Division 2—Instalments of parental leave pay

63 Instalments of parental leave pay

(1) Parental leave pay must be paid to a person in instalments.

Who pays an instalment

(2) An instalment is payable to a person, in accordance with sections 72, 84, 85, 86 and 87, by either:

(a) the person’s employer; or

(b) the Secretary.

When an instalment is payable

(3) An instalment is payable to a person if one or more days (the PPL days) of an instalment period for the person fall within the person’s PPL period.

(4) An instalment becomes payable on the payday for the instalment.

(5) More than one instalment may be paid to a person on a particular day.

64 A person’s instalment period and the payday for an instalment

(1) A person’s instalment period, and the payday for an instalment that relates to an instalment period, are worked out according to the following rules.

Note: Sections 93 and 94 affect when an instalment period for a person starts and ends in certain circumstances.

Instalment to be paid by employer—regular pay period

(2) If the instalment is to be paid by the person’s employer and there is a regular period for which the person would usually be paid in relation to the person’s performance of work:

(a) the person’s instalment period is each such regular period; and

(b) the payday for the instalment is the day on which the person would usually be paid in relation to the person’s performance of work for the instalment period to which the instalment relates.

Instalment to be paid by employer—no regular pay period

(3) If the instalment is to be paid by the person’s employer and there is not a regular period for which the person would usually be paid in relation to the person’s performance of work:

(a) the person’s instalment period is each calendar month; and

(b) the payday for the instalment is the first day after the end of the instalment period to which the instalment relates.

Instalment to be paid by Secretary

(4) If the instalment is to be paid by the Secretary:

(a) the person’s instalment period is the period of 14 days starting on a day the Secretary considers appropriate for the person (or a class of person in which the person is included) and each successive 14 day period; and

(b) the payday for the instalment is a day that the Secretary considers appropriate that occurs after the instalment period to which the instalment relates.

65 The amount of an instalment

(1) The amount of an instalment is the total of the daily national minimum wage amounts for each week day, during the instalment period to which the instalment relates, that is also a PPL day.

(2) The daily national minimum wage amount for a day is 7.6 times the amount of the national minimum wage (when expressed as a monetary amount per hour) set by a national minimum wage order that is in operation on that day (whether or not the order has also taken effect on that day).

Note: For when a national minimum wage order comes into operation, see section 287 of the Fair Work Act.

(3) For the purposes of subsection (2):

(a) the national minimum wage is taken to be the wage set by the national minimum wage order for employees in relation to whom no exceptional circumstances exist (see subsection 287(2) of the Fair Work Act); and

(b) if:

(i) the Fair Work Commission makes a determination under section 296 of the Fair Work Act varying a national minimum wage order; and

(ii) the day the determination comes into operation under section 297 of that Act is earlier than the day the determination is made;

the determination is taken to come into operation on the day the determination is made.

66 Protection of instalment

(1) An instalment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.

Note: Section 97 (which deals with the effect of a garnishee etc. order) also provides a protection for an account into which an instalment has been paid.

(2) Subsection (1) has effect subject to sections 67, 68, 69 and 69A (which deal with deductions).

67 Deductions authorised by person

(1) An employer or the Secretary may deduct an amount from an instalment that is payable to a person if the deduction is:

(a) authorised by the person; and

(b) principally for the person’s benefit.

Note: A deduction by an employer in accordance with a salary sacrifice or other arrangement, under which a person chooses to:

(a) forgo an amount payable to the person in relation to an instalment; but

(b) receive some other form of benefit or remuneration;

will be permitted if it is made in accordance with this section.

(2) The Secretary may deduct an amount from an instalment that is payable to a secondary claimant for a child if:

(a) a primary claimant owes a debt to the Commonwealth in relation to amounts paid to, or in relation to, the primary claimant by way of instalments for the same child; and

(b) the deduction is authorised by the secondary claimant for the purposes of the recovery of the debt.

(3) An authorisation for the purposes of paragraph (1)(a) or (2)(b):

(a) must be in writing; and

(b) must specify the amount of the deduction; and

(4) Any variation in the amount of the authorised deduction must also be authorised in writing by the person.

68 Deductions for PAYG withholding

An employer or the Secretary (the payer) may deduct an amount from an instalment that is payable to a person if the payer is required to withhold the amount under section 12‑110 in Schedule 1 to the Taxation Administration Act 1953.

69 Deductions relating to child support

(1) An employer may deduct an amount from an instalment that is payable to a person if the employer is required to deduct the amount under section 46 or 72A of the Child Support (Registration and Collection) Act 1988.

(2) The Secretary, in accordance with a notice given to the Secretary under section 72AD of the Child Support (Registration and Collection) Act 1988 in relation to a person to whom an instalment is payable, must:

(a) make deductions from an instalment that is payable to the person (subject to subsections (3) and (4) of that section); and

(b) pay the amounts deducted to the Child Support Registrar.

69A Deductions to avoid overpayment of income support payment

If:

(a) a payability determination that parental leave pay is payable to a person is made; and

(b) an instalment for an instalment period becomes payable to the person by the Secretary on a particular day; and

(c) before that day, the person was paid an amount of income support payment under the social security law or Veterans’ Entitlements Act 1986 for a period (the income support period) that falls within, or overlaps with, the instalment period; and

(d) the Secretary is satisfied that the amount of income support payment so paid exceeds the amount of income support payment that would have been payable to the person for the income support period under that law or Act had the instalment been taken into account when working out the amount of income support payment payable to the person for that period under that law or Act;

then the Secretary may deduct from the instalment an amount equal to the excess.

Note: A person’s income is taken into account when working out the amount of income support payment that is payable to the person under the social security law or the Veterans’ Entitlements Act 1986. An instalment is income so payment of an instalment may reduce the amount of income support payment that is payable to the person.

70 No other deductions

(1) An amount must not be deducted from an instalment except in accordance with section 67, 68, 69 or 69A. This subsection applies despite any other law of the Commonwealth, a State or a Territory.

(2) An employer must comply with subsection (1).

Note: This subsection is a civil penalty provision (see section 146).

Part 3‑2—Payment of instalments by employer

Division 1—Guide to this Part

71 Guide to this Part

This Part is about the payment of instalments to a person by the person’s employer.

Under Division 2, an employer is only required to pay an instalment to a person if an employer determination has come into force for the employer and the person (see Part 3‑5) and the employer has been paid enough by the Secretary to fund the instalment.

Division 3 is about the payment by the Secretary of amounts (called PPL funding amounts) to an employer to ensure the employer has been paid enough to fund an instalment.

Division 4 sets out certain obligations of employers relating to paying instalments (such as giving and keeping records and notifying the Secretary if certain events happen).

Division 2—Payment of instalments by employer

72 When an employer pays instalments

Employer determination in force on day during instalment period

(1) An employer must pay an instalment to a person on the payday for the instalment if:

(a) the instalment is payable to the person; and

(b) an employer determination is in force for the employer and the person on a day during the instalment period to which the instalment relates; and

Note 1: This subsection is a civil penalty provision (see section 146).

Note 2: See section 96 for when the employer is taken to have complied with this requirement.

Employer determination comes into force after instalment period

(2) If:

(a) a person’s employer becomes required under subsection (1) to pay an instalment after the start of the person’s PPL period; and

(b) an earlier instalment is taken to have become payable to the person under section 91 (which deals with the effect of the Secretary or an employer becoming required to pay instalments after the start of a person’s PPL period); and

(c) as at the payroll cut‑off for the instalment referred to in subsection (1), the employer has been paid enough to fund the earlier instalment;

the employer must pay the earlier instalment on the payday for the instalment referred to in subsection (1).

Note 1: This subsection is a civil penalty provision (see section 146).

Note 2: See section 96 for when the employer is taken to have complied with this requirement.

Employer determination in force and employer paid enough at later time

(3) If:

(a) an employer is not required under subsection (1) or (2) to pay an instalment only because paragraph (1)(c) or (2)(c) (as the case may be) was not satisfied; and

(b) that paragraph is satisfied as at the payroll cut‑off for an instalment for a later instalment period;

the employer must pay the instalment to the person on the payday for the instalment for that later instalment period.

Note 1: This subsection is a civil penalty provision (see section 146).

Note 2: If there is no instalment payable for a later instalment period, see section 95.

Note 3: See section 96 for when the employer is taken to have complied with this requirement.

(4) An employer is not required to pay an instalment to a person except in accordance with this section.

73 When an employer has been paid enough to fund an instalment

An employer has been paid enough to fund an instalment for a person as at a day if the total of the PPL funding amounts paid to the employer for the person for a child before that day is at least the total of the following amounts:

(a) the amount of the instalments the employer has previously paid to, or in relation to, the person for the child;

(b) the amount of the instalment;

(c) the amount of any other instalment that is to be paid to, or in relation to, the person on the payday for the instalment.

74 Method of payment of instalment payable by employer

An instalment payable to a person by an employer must be paid in money by one, or a combination, of the following methods:

(a) cash;

(b) cheque, money order, postal order or similar order, payable to the person;

Note: This section is a civil penalty provision (see section 146).

Division 3—PPL funding amounts

75 Payment of PPL funding amounts

(1) The Secretary must pay one or more amounts (the PPL funding amounts) to a person’s employer if the Secretary is satisfied that:

(a) an instalment was or is likely to be payable to the person; and

(b) the employer is or is likely to be required to pay the instalment to the person.

(2) Subsection (1) does not require the Secretary to pay a PPL funding amount in relation to an instalment earlier than a reasonable period before the payroll cut‑off for the instalment.

(3) If:

(a) the Secretary is required under subsection (1) to pay a PPL funding amount to a person’s employer in relation to an instalment for the person; and

(b) the employer has not been paid enough to fund the instalment as at the first payroll cut‑off for an instalment for the person after the Secretary becomes required to pay the PPL funding amount;

the Secretary must pay the PPL funding amount to the employer before the next payroll cut‑off for an instalment for the person.

76 Rules affecting the amount of a PPL funding amount

(1) A PPL funding amount for a person must not:

(a) be less than the minimum amount for the PPL funding amount; or

(b) be more than the sum of the following:

(i) the minimum amount;

(ii) the amount that is 30 times the daily national minimum wage amount that applies on the day the PPL funding amount is paid to the employer.

(2) The minimum amount for a PPL funding amount is the sum of the amounts of the instalments that:

(a) will have become payable to the person as at the next payday for an instalment for the person after the PPL funding amount is paid to the person’s employer; and

(b) do not relate to days in the person’s PPL period for which the Secretary has previously paid the employer a PPL funding amount for the person.

(3) The sum of the PPL funding amounts paid to a person’s employer for the person must not be more than the sum of the amounts of the instalments that are payable to the person for the person’s PPL period.

77 Notice requirements relating to PPL funding amounts

(1) The Secretary must give a written notice to an employer each time the Secretary pays a PPL funding amount to the employer for a person.

(2) The notice must contain the following information:

(a) the name of the person for whom the PPL funding amount has been paid;

(b) the amount of the PPL funding amount;

(d) the daily national minimum wage amount for each of those PPL days;

(e) any information prescribed by the PPL rules.

79 Protection of PPL funding amounts

A PPL funding amount is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise, until it has been paid to the employer.

Division 4—Obligations of employer relating to paying instalments

80 Giving person record of payment

An employer must, before the end of the next working day after paying an instalment to a person, give the person the information prescribed by the PPL rules in the form (if any) prescribed by the PPL rules.

Note: This section is a civil penalty provision (see section 146).

81 Keeping records

(1) An employer must make, and keep for 7 years, records of the kind prescribed by the PPL rules in relation to each person for whom an employer determination for the employer comes into force.

Note: This subsection is a civil penalty provision (see section 146).

(2) A record must:

(a) if a form is prescribed by the PPL rules for that kind of record—be in that form; and

(b) include any information prescribed by the PPL rules.

Note: This subsection is a civil penalty provision (see section 146).

82 Notifying Secretary if certain events happen

(1) If the Secretary makes an employer determination for a person and the person’s employer, the employer must notify the Secretary if any of the following events happen:

(a) the employer’s bank account information changes;

(b) the person’s instalment period changes;

(c) the day on which the person would usually be paid in relation to the person’s performance of work for instalment periods for the person changes;

(d) the payroll cut‑off for instalments payable to the person changes;

(e) the employer becomes aware that the employer has ceased, or is likely to cease, to carry on a business;

(f) the person returns to work for the employer at any time from the birth of the person’s child until the end of the person’s PPL period;

(g) the person ceases to be employed by the employer before the end of the person’s PPL period;

(h) the person is not paid an instalment the employer is required to pay to the person;

(i) the employer is not paid enough to fund a particular instalment for the person as at the payroll cut‑off for the instalment;

(j) if the Secretary has agreed to pay a particular PPL funding amount to the employer—the employer is not paid the PPL funding amount as agreed;

(k) in any case—a PPL funding amount paid to the employer is more than the sum of the amounts of the instalments payable for the PPL days for which the PPL funding amount has been paid;

(l) the sum of the PPL funding amounts paid to the employer for the person is more than the sum of the amounts of the instalments that are payable by the employer to the person for the person’s PPL period.

(2) The notice must be given:

(a) as soon as practicable after the employer becomes aware that the event has happened (subject to paragraph (b)); and

(b) if paragraph (1)(e) applies—not more than 30 days before the day the employer ceased, or is likely to cease, to carry on the business; and

Note: This subsection is a civil penalty provision (see section 146).

(2A) The Secretary must approve a manner of notification that an employer must use when notifying the Secretary of an event under this section.

(2B) The Secretary must, by written notice, notify the employer of the approved manner of notification.

When obligation to notify of certain events ceases

(3) An obligation under subsection (1) that arises because of any of paragraphs (1)(a) to (g) ceases to apply if the event happens on or after the earliest of the following days:

(a) the day a decision is made that has the effect that parental leave pay is not payable to the person (including a decision that there are no days in the person’s PPL period);

(b) if the employer determination comes into force:

(i) if the employer determination is not revoked—the day after the end of the person’s PPL period; and

(ii) if the employer determination is revoked—the day of the revocation;

(c) if the employer determination never comes into force—the day the Secretary becomes required to pay instalments to the person instead of the employer under the employer determination.

Part 3‑3—Payment of instalments by Secretary

Division 1—Guide to this Part

83 Guide to this Part

This Part is about the payment of instalments to a person by the Secretary.

The Secretary is required to pay instalments directly to a person if an employer determination is never made for the person.

The Secretary is also required to pay instalments directly to a person in certain circumstances where an employer determination is being reviewed or has been revoked, or where a matter has been referred to the Fair Work Ombudsman relating to a failure by an employer to pay an instalment to a person.

In certain circumstances where the Secretary becomes required to pay instalments to a person, the Secretary is also required to pay the person arrears for instalments that had previously become payable, but not been paid, to the person.

Division 2—Payment of instalments by Secretary

84 When the Secretary pays instalments

(1) If the Secretary is required under this section to pay an instalment to a person, the Secretary must do so on the payday for the instalment.

Note: See section 96 for when the Secretary is taken to have complied with this requirement.

Employer determination never made

(2) The Secretary must pay an instalment that is payable to a person if the Secretary, in accordance with section 101, never made an employer determination for the person and the person’s employer.

Employer determination reviewed

(3) The Secretary must pay an instalment that is payable to a person if:

(a) the person’s employer has applied for review under Part 5‑1 or 5‑2, or to a court for judicial review, in relation to the employer determination made for the person and the employer; and

(b) the employer determination has not come into force before the 28th day after the start of the person’s PPL period; and

(i) either includes the day referred to in paragraph (b) or is a later instalment period; and

(ii) starts before the day (the transfer day) on which the employer determination comes into force (if at all).

Note 1: The Secretary must also pay the person instalments payable to the person for earlier instalment periods (see section 85).

Note 2: If the employer determination never comes into force, the Secretary will pay all instalments to the person.

Employer determination revoked

(4) The Secretary must pay an instalment that is payable to a person if:

(a) the Secretary revokes the employer determination for the person and the person’s employer; and

(b) the instalment relates to an instalment period that starts on or after the day (the transfer day) the revocation comes into force.

Note: See sections 85 and 86 for when the Secretary must also pay the person instalments payable to the person for earlier instalment periods.

Referral of matter to Fair Work Ombudsman relating to failure to pay instalment

(5) The Secretary must pay an instalment that is payable to a person if:

(a) the Secretary has referred a matter to the Fair Work Ombudsman relating to a contravention by the employer of section 70, 72 or 74 (which deal with unauthorised deductions and payment of instalments by an employer) in relation to the person; and

(b) the instalment relates to an instalment period that starts on or after the day (the transfer day) after the last PPL day for which the Secretary has paid the employer a PPL funding amount for the person; and

(d) the Fair Work Ombudsman has not notified the Secretary, before the transfer day, that the employer has not complied with a compliance notice given for the contravention referred to in paragraph (a).

(6) If both subsections (4) and (5) apply in relation to a person, then only the subsection where the transfer day occurs first is taken to apply in relation to the person.

85 Payment of arrears—employer determination reviewed or revoked before coming into force

(1) This section applies if:

(a) the Secretary is required to pay an instalment to a person under subsection 84(3) (which deals with payment of instalments where an employer determination is reviewed); or

(b) both of the following apply:

(i) the Secretary is required to pay an instalment to a person under subsection 84(4) (which deals with payment of instalments where an employer determination is revoked);

(ii) the employer determination made for the person and the person’s employer has never come into force.

(2) The Secretary must pay the person each instalment that is taken to have become payable to the person under section 91 (which deals with the effect of the Secretary or an employer becoming required to pay instalments after the start of a person’s PPL period).

(3) The Secretary must pay the instalments on the payday for the first instalment that the Secretary is required to pay as referred to in paragraph (1)(a) or (b) of this section.

Note: See section 96 for when the Secretary is taken to have complied with this requirement.

86 Payment of arrears—employer determination revoked after coming into force

(1) This section applies if:

(a) the Secretary revokes an employer determination that has come into force for a person and the person’s employer; and

(b) the employer has not, as at the payday for the instalment, paid all or part of an instalment that was payable to the person by the employer; and

(i) 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 payment of the instalment; or

(ii) the employer determination was revoked because the Secretary was satisfied that the employer was insolvent.

(2) The Secretary must pay the person the instalment, or the part of the instalment, on the payday for the next instalment that the Secretary is required to pay under subsection 84(4) (which deals with payment of instalments where an employer determination is revoked).

Note 1: If there is no instalment payable for a later instalment period, see section 95.

Note 2: See section 96 for when the Secretary is taken to have complied with this requirement.

(3) Subsection (2) does not require the Secretary to pay the person all or part of an instalment to the extent that the instalment or the part of the instalment has been recovered under section 172 (which deals with debts owing by employers to employees).

(4) To avoid doubt, this section applies whether or not the Secretary is required to pay an instalment to the person under subsection 84(4).

87 Payment of arrears—extending PPL period after review

(1) The Secretary must pay a person each instalment that is taken to have become payable to the person under section 92 (which deals with the effect of extending a person’s PPL period after a review).

(2) The Secretary must pay the instalments as soon as practicable after the Secretary becomes required to pay the instalments.

88 Method of payment of instalment payable by Secretary

(1) The Secretary must pay an instalment, or a part of an instalment, that the Secretary is required to pay to a person, to the credit of a bank account nominated and maintained by the person.

(2) The Secretary may direct that the whole or a part of an instalment that the Secretary is required to pay a person is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the instalment, or the part of the instalment, is to be paid in accordance with the direction.

(3) A direction made under subsection (2) is not a legislative instrument.

89 Giving person record of payment

If the Secretary pays an instalment, or part of an instalment, to or in relation to a person, in particular circumstances, the Secretary must give the person the information prescribed by the PPL rules in relation to instalments paid in those circumstances.

Part 3‑4—General rules relevant to paying instalments

Division 1—Guide to this Part

90 Guide to this Part

This Part contains general rules that are relevant to the payment of instalments to a person, whether by the person’s employer or the Secretary.

Some of those rules deem instalments to have become payable in certain circumstances (such as when an employer or the Secretary becomes required to pay instalments to a person after the person’s PPL period has already started).

Other rules deal with the effect on a person’s instalment periods of changing who is required to pay instalments to the person.

There are also rules that relate to what happens when an instalment cannot be paid on the day specified in this Act.

Finally, this Part deals with the interaction of this Chapter with certain Commonwealth, State and Territory laws.

Division 2—General rules relevant to paying instalments

91 Effect of the Secretary or employer becoming required to pay instalments after start of PPL period

If:

(a) the Secretary or a person’s employer (the payer) becomes required to pay an instalment to the person after the start of the person’s PPL period; and

(b) neither the Secretary nor the employer is otherwise required to pay an earlier instalment to the person; and

(c) one or more instalments would have been payable to the person on the paydays for the instalments if the payer had been required to pay instalments from the start of the person’s PPL period;

then the instalments referred to in paragraph (c) are taken to have become payable on the respective paydays for the instalments.

92 Effect of extending PPL period after review

If:

(a) a person’s PPL period ends; and

(b) later, a decision in relation to a payability determination for the person is made that has the effect that the person’s PPL period is extended by an additional period; and

(c) one or more instalments that relate to instalment periods that overlap with the additional period would have been payable to the person on the paydays for the instalments if:

(i) the payability determination had always specified the extended PPL period; and

(ii) the Secretary had been required to pay the instalments; and

(d) the Secretary is not otherwise required to pay the instalments;

then the instalments referred to in paragraph (c) are taken to have become payable on the respective paydays for the instalments.

93 Effect on instalment periods of employer determination coming into force after review

(1) This section applies if:

(a) the Secretary is required to pay an instalment to a person under subsection 84(3) (which deals with payment of instalments where an employer determination is reviewed); and

(b) the employer determination comes into force for the person and the person’s employer on the transfer day referred to in that subsection.

(2) The instalment period for the person for the last instalment payable by the Secretary is taken to end on the day before the transfer day.

(3) The instalment period for the person for the first instalment payable by the employer is taken to start on the transfer day.

Note: Subsection (3) does not affect when the instalment period ends.

94 Effect on instalment periods of revocation etc.

(1) This section applies if:

(a) an employer determination has come into force for a person and the person’s employer; and

(b) the Secretary becomes required to pay an instalment to the person under either of the following subsections for an instalment period that starts on or after the transfer day referred to in that subsection:

(i) subsection 84(4) (which deals with payment of instalments where an employer determination is revoked);

(ii) subsection 84(5) (which deals with payment of instalments where a matter is referred to the Fair Work Ombudsman relating to a failure to pay an instalment).

(2) The instalment period for the person for the last instalment payable by the employer is taken to end on the day before the transfer day.

(3) The instalment period for the person for the first instalment payable by the Secretary is taken to start on the transfer day.

Note: Subsection (3) does not affect when the instalment period ends.

95 Paying instalment on payday for later instalment—no later instalment

If:

(a) the Secretary or a person’s employer (the payer) is required to pay an instalment to the person on the payday for an instalment for a later instalment period; and

(b) that later instalment is not payable by the payer;

the payer must pay the instalment referred to in paragraph (a) on the day that would have been the payday for the later instalment if it had been payable by the payer.

96 Paying instalment on particular day—complying with obligation

The Secretary or a person’s employer (the payer) is taken to have complied with a requirement to pay an instalment on a particular day if the payer pays the instalment:

(a) before that day; or

(b) if the payer cannot pay the instalment on that day—as soon as practicable after that day.

97 Effect of garnishee etc. order

(1) If:

(a) an instalment is being paid, or has been paid, to the credit of an account; and

(b) a court order in the nature of a garnishee order comes into force in relation to the account;

the court order does not apply to the saved amount (if any) in the account.

(2) The saved amount is worked out as follows:

Method statement

Step 1. Work out the total amount of the instalments that have been paid to the credit of the account during the 4 week period immediately before the court order came into force.

Step 2. Subtract from the step 1 amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount.

98 Exemption from operation of workers’ compensation and accident compensation laws

(1) The payment of an instalment of parental leave pay is not to be taken into account for the purposes of the following provisions or laws:

(a) a provision of a law of the Commonwealth, a State or a Territory, if the provision deals with:

(i) workers’ compensation; or

(ii) accident compensation;

(b) a law, or a provision of a law, prescribed by the PPL rules, to the extent that the law or provision deals with a matter referred to in paragraph (a).

(2) The PPL rules may provide that subsection (1) does not apply in relation to a prescribed provision of a law of the Commonwealth, a State or a Territory.

99 PPL period is not a period of paid leave

Despite any law of the Commonwealth, a State or a Territory, or any industrial instrument (however described), a period of unpaid leave is not to be taken to be a period of paid leave just because a person receives instalments of parental leave pay for all or part of that period.

99A Payment of paid parental leave does not affect other employer obligations

An obligation of an employer to pay a person parental leave pay under this Act is in addition to any other obligation the employer may have in relation to the person, however that other obligation might arise (including, for example, under another law of the Commonwealth, a State or a Territory, or an industrial instrument (however described)).

Part 3‑5—Employer determinations

Division 1—Guide to this Part

100 Guide to this Part

This Part is about employer determinations. If an employer determination is in force for an employer and a person, the employer must pay instalments to the person.

Under Division 2, the Secretary must make an employer determination if the Secretary is satisfied that certain conditions have been met. Not all of those conditions need to be satisfied for a person if the employer has made an election under Division 4 that applies to the person and the person consents to the employer paying the instalments.

If the Secretary makes an employer determination for a person and the person’s employer, the employer must either:

(a) give the Secretary certain information to enable the Secretary to pay the employer PPL funding amounts for the person; or

(b) apply for review of the employer determination under Part 5‑1 or 5‑2.

Division 3 is about when an employer determination is in force. It includes rules about revoking employer determinations.

Under Division 4, an employer may elect to pay instalments to one or more employees.

Division 5 provides for the Secretary to give an employer for whom an employer determination has been made notice of certain other decisions under this Act.

Division 2—Making employer determinations

101 Making employer determinations

When Secretary must make employer determination

(1) The Secretary must make a determination under this section (the employer determination) that a person’s employer is to pay the person instalments if the Secretary is satisfied, when making the determination, that:

(a) a payability determination that parental leave pay is payable to the person, or an initial eligibility determination for the person, is in force; and

(b) instalments are likely, if the determination is made, to be payable by the employer to the person for at least 40 consecutive PPL days that are week days; and

(i) if the person’s claim was made before the birth of the person’s child—the expected date of birth of the child; or

(ii) if the person’s claim was made after the birth of the person’s child—the later of the expected date of birth of the child and the day the child was born; and

(d) the person is likely to be an Australian‑based employee of the employer during whichever of the following periods applies:

(i) if the Secretary has made a payability determination that parental leave pay is payable to the person—the person’s PPL period;

(ii) otherwise—the period of days for which instalments are likely, if the determination is made, to be payable to the person by the employer; and

(e) the employer has an ABN; and

(f) if paragraphs (c) to (e) are satisfied in relation to more than one employer of the person (other than because of subsection (2))—the person nominated the employer in the claim as the employer who would be required to pay instalments to the person.

Effect of election by employer to pay instalments

(2) Paragraphs (1)(b) and (c) do not apply in relation to a person if:

(a) the person’s employer has made an election under section 109 that applies to the person; and

(b) the person has consented in the claim to the employer paying instalments to the person.

When must employer determination be made

(3) The Secretary must not make an employer determination for a person and the person’s employer unless:

(a) the Secretary is satisfied as referred to in subsection (1); and

(b) the employer determination is made on or before the day on which the payability determination referred to in paragraph (1)(a) is made.

Note: See section 106 for when the Secretary may, despite this subsection, make an employer determination for a person and the person’s employer after the day referred to in paragraph (b).

When employer determination must not be made

(3A) The Secretary must not make an employer determination for a person and the person’s employer if the person is receiving an income support payment.

When Secretary may decide not to make employer determination

(4) Despite subsection (1), the Secretary may decide not to make an employer determination for a person and the person’s employer if the Secretary is satisfied of all or any of the following:

(a) the person’s PPL period has ended;

(b) the person is a tertiary claimant;

(d) both of the following apply:

(i) a primary claimant owes a debt to the Commonwealth in relation to amounts paid to, or in relation to, the primary claimant by way of instalments for a child;

(ii) the person is a secondary claimant for parental leave pay for the same child;

(e) the employer is not a fit and proper person.

Matters relevant to whether employer is a fit and proper person

(5) The Secretary may take into account the following matters in determining whether an employer is a fit and proper person:

(a) whether the employer is insolvent;

(b) whether the employer has, or is alleged to have, contravened a civil penalty provision of this Act;

(c) whether a matter relating to a contravention of section 70 or Part 3‑2 (which deal with unauthorised deductions and payment of instalments by an employer) by the employer has been referred to the Fair Work Ombudsman under section 143;

(d) subject to Part VIIC of the Crimes Act 1914, whether the employer has, or is alleged to have, contravened a provision of an industrial law (within the meaning of the Fair Work Act);

(e) subject to Part VIIC of the Crimes Act 1914, whether the employer has been convicted of an offence against this Act, or a law of the Commonwealth, a State or a Territory that involves:

(i) fraud or dishonesty; or

(ii) the misapplication of money; or

(iii) the management of the affairs of a body (whether or not incorporated);

(ea) whether the employer has, or is alleged to have, contravened a provision of the Employment Act 1988 (Norfolk Island);

(f) any other matter the Secretary considers relevant.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

Secretary may assume state of affairs will not change

(6) In deciding whether to make a determination under this section, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.

102 Secretary must give notice of employer determination

(1) If the Secretary makes an employer determination for a person and the person’s employer, the Secretary must give the employer and the person a written notice advising them that the determination has been made.

Notice given to person

(2) The notice given to the person must contain the name of the employer and any information prescribed by the PPL rules.

Notice given to employer

(3) The notice given to the employer must contain the following information:

(a) the name of the person;

(b) whether the Secretary has made a payability determination that parental leave pay is payable to the person;

(d) if the Secretary has not made such a payability determination for the person—the period the Secretary expects to specify as the person’s PPL period if he or she were to make such a payability determination for the person;

(e) in any case—any information prescribed by the PPL rules.

(4) The notice given to the employer must also be dated. The date of the notice must be the date the preparation of the notice was completed.

Decision not to make employer determination—notice to person

(5) If the Secretary decides not to make an employer determination for a person, the Secretary must give the person a written notice advising the person of that decision. The notice must contain any information prescribed by the PPL rules.

103 Employer must respond to notice of employer determination

Within 14 days after the date of the notice given under section 102, the employer must do one of the following:

(a) give the Secretary a written notice (the acceptance notice) that complies with section 104;

(b) apply for a review of the employer determination under Part 5‑1 or 5‑2.

Note: This section is a civil penalty provision (see section 146).

104 Requirements for an acceptance notice

Acceptance of obligation to pay instalments

(1) The acceptance notice must contain a declaration to the effect that the employer accepts the employer’s obligation to pay instalments to the person.

Bank account information

(2) The acceptance notice must contain the following information (bank account information) about an account held and maintained by the employer with a financial institution into which PPL funding amounts can be paid:

(a) the account number;

(b) the BSB number of the account;

(d) the name of the financial institution.

Pay cycle information

(3) The acceptance notice must contain the following information (pay cycle information) for the person:

(a) the person’s instalment period;

(b) the first day of the first instalment period for the person that overlaps with:

(i) if the Secretary has made a payability determination that parental leave pay is payable to the person—the person’s PPL period; or

(ii) if the Secretary has not made such a payability determination for the person—the person’s expected PPL period referred to in paragraph 102(3)(d);

(c) in any case—the payday and the payroll cut‑off for an instalment that would be payable for the instalment period referred to in paragraph (b) of this subsection.

PPL rules may specify additional information

(4) The acceptance notice must also contain any information prescribed by the PPL rules.

Employer may confirm bank account information in election

(5) Subsection (2) does not apply if:

(a) the person’s employer has made an election under section 109 that applies to the person; and

(b) the acceptance notice contains a declaration to the effect that the employer’s bank account information given in the notice under subsection 109(1) is correct in relation to the person.

105 Giving bank account and pay cycle information etc. after review

(1) This section applies if:

(a) an employer applies for review under Part 5‑1 or 5‑2, or to a court for judicial review, in relation to an employer determination made for a person and the employer; and

(b) either of the following events happens:

(i) the employer withdraws the application;

(ii) the employer determination has not been set aside or quashed and is no longer subject to review; and

(2) The Secretary must, as soon as practicable after becoming aware that the event referred to in paragraph (1)(b) has happened, give the employer a written notice requiring the employer to give the Secretary a written notice containing the following information:

(a) the employer’s bank account information;

(b) the pay cycle information for the person;

(2A) The notice given to the employer must also be dated. The date of the notice must be the date the preparation of the notice was completed.

(3) The employer must give the notice to the Secretary within 14 days of the date of the notice given by the Secretary.

Note: This subsection is a civil penalty provision (see section 146).

106 Effect of decision on review that parental leave pay is payable

The Secretary may, despite subsection 101(3), make an employer determination for a person and the person’s employer, if:

(a) 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); and

(b) a later decision is made that has the effect that a payability determination that parental leave pay is payable to the person comes into force; and

(c) the Secretary is satisfied, when making the employer determination, of the matters referred to in the applicable paragraphs of subsection 101(1) in relation to the person and the employer.

Division 3—When an employer determination is in force

107 When an employer determination comes into force

(1) An employer determination comes into force for a person and the person’s employer as set out in subsection (2) or (3). Otherwise, the employer determination does not come into force at all.

Employer gives acceptance notice

(2) If the employer gives the Secretary an acceptance notice for the person in accordance with section 103 or a compliance notice given under section 157, the employer determination comes into force on the day the Secretary receives the acceptance notice.

Employer gives bank account and pay cycle information after review of employer determination

(3) If:

(a) the employer gives a notice to the Secretary in accordance with section 105 (which deals with giving bank account and pay cycle information etc. after a review) in relation to the person; and

(b) the person’s PPL period has not ended by the day the Secretary receives the notice;

the employer determination comes into force on the day the Secretary receives the notice.

(4) An employer determination stays in force unless it is revoked.

108 Revocation of an employer determination

When Secretary is required to revoke employer determination

(1) The Secretary must revoke an employer determination made for a person and the person’s employer if the Secretary is satisfied of a matter referred to in column 1 of an item in the following table. The revocation comes into force on the day referred to in column 2 of that item:

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.
2A	The person is receiving an income support payment.	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.

When Secretary may revoke employer determination

(2) The Secretary may revoke an employer determination made for a person and the person’s employer if the Secretary is satisfied of any of the following:

(a) the employer is not a fit and proper person;

(b) the child in relation to whom parental leave pay is payable to the person is stillborn or has died;

(3) In determining whether the employer is not a fit and proper person for the purposes of paragraph (2)(a), the Secretary may take into account the matters referred to in paragraphs 101(5)(a) to (f).

(4) If the Secretary revokes the employer determination under subsection (2), the revocation comes into force on the day of the revocation.

Notice of revocation to person and employer

(5) If the Secretary revokes an employer determination for a person and the person’s employer, the Secretary must give them a written notice advising them of that decision. The notice must contain any information prescribed by the PPL rules.

Notice of revocation to AAT

(6) If, when the Secretary revokes an employer determination:

(a) an application has been made for AAT first review in relation to the employer determination; and

(b) the AAT has not determined the review;

the Secretary must give written notice of the revocation to the Registrar of the AAT.

Division 4—Election by employer to pay instalments

109 Election by employer to pay instalments

(1) An employer may elect to pay instalments to one or more employees of the employer by giving the Secretary a notice in accordance with subsections (2) and (3).

Requirements for elections

(2) The notice must:

(a) be in the approved form; and

(b) contain the employer’s bank account information.

(3) An election under subsection (1) must be expressed to apply in relation to:

(a) one or more specified employees of the employer; or

(b) one or more specified classes of employee of the employer; or

110 Employer may withdraw an election

(1) The employer may, at any time, withdraw an election by notice given to the Secretary in the form approved by the Secretary.

(2) However, a withdrawal does not affect an employer determination that has already been made.

111 Secretary may cancel an election

(1) The Secretary may cancel an election if the Secretary is satisfied that the employer is not a fit and proper person, and for this purpose may take into account the matters referred to in paragraphs 101(5)(a) to (f).

(2) However, a cancellation does not affect an employer determination that has already been made.

Note: The Secretary may revoke an employer determination that has already been made for the employer and a person under subsection 108(2).

(3) If the Secretary cancels an election, the Secretary must give the employer a written notice advising the employer of that decision. The notice must contain any information prescribed by the PPL rules.

112 When an election is in force

An election remains in force from the time it is received by the Secretary until one of the following occurs:

(a) if paragraph 109(3)(a) applies—the PPL period for each specified employee ends;

(b) the Secretary receives notice under section 110 that the election has been withdrawn;

Division 5—Notice of decisions

113 Notice of outcome of a payability determination

(1) This section applies if:

(a) the Secretary has made an employer determination for a person and the person’s employer; and

(b) after the employer determination was made, the Secretary makes a payability determination.

(2) The Secretary must give the employer a written notice stating:

(a) whether parental leave pay is payable to the person; and

(b) if parental leave pay is payable—the person’s PPL period; and

Note: If the Secretary determines that parental leave pay is not payable to the person, the Secretary must revoke the employer determination (see subsection 108(1)).

(3) However, the Secretary need not give the notice if the Secretary had previously revoked the employer determination.

114 Notice of varying, setting aside etc. payability determination

(1) This section applies if:

(a) the Secretary has made an employer determination for a person and the person’s employer; and

(b) a decision is made to vary, set aside or revoke a payability determination (the original payability determination) that parental leave pay is payable to the person.

(2) The Secretary must give the employer a written notice stating:

(a) the effect of the decision referred to in paragraph (1)(b); and

(b) if the effect of the decision is that the person has a different PPL period to that specified in the original payability determination—that different PPL period; and

(3) However, the Secretary need not give the notice if the Secretary had previously revoked the employer determination.

115 Notice of other decisions

The PPL rules may provide for the Secretary, in particular circumstances, to give a person a notice containing the information prescribed by the PPL rules in relation to those circumstances, if this Chapter does not otherwise provide for the Secretary to give the person a notice in those circumstances.

Chapter 3A—Dad and partner pay

Part 3A‑1—Key provisions

Division 1—Guide to this Part

115AA Guide to this Part

This Part has the key provisions for this Chapter (which deals with dad and partner pay).

A person can only be paid dad and partner pay if the Secretary makes a determination that dad and partner pay is payable to the person. Part 3A‑2 has the rules about when the Secretary can make that determination.

The Secretary cannot make that determination if the person has not made a claim for dad and partner pay.

If the Secretary makes a determination that dad and partner pay is payable to a person for a child, the amount of dad and partner pay is worked out by reference to the period for which the person is eligible for dad and partner pay. This period is the person’s DAPP period. The maximum period for which any person may be eligible for dad and partner pay is 2 weeks. A person’s DAPP period may be the full 2 weeks or a lesser period (if the person is not eligible for dad and partner pay for that full period).

Generally, dad and partner pay is paid by the Secretary as a single payment.

Division 2—When dad and partner pay is payable to a person

115AB A determination must be made for dad and partner pay to be payable to a person

Dad and partner pay is payable to a person for a child for a period if a determination of the Secretary that dad and partner pay is payable to the person for that period is in force under section 115BB.

Note: See Part 3A‑2 for the rules about when the Secretary can make a determination that dad and partner pay is, or is not, payable to a person.

115AC For the determination to be made, the person must be eligible

The Secretary cannot make a determination that dad and partner pay is payable to a person for a child for a period unless the person was or will be eligible for dad and partner pay during the period.

Note: See Part 3A‑3 for the rules about when a person is eligible for dad and partner pay.

115AD For the determination to be made, the person must claim

The Secretary cannot make a determination that dad and partner pay is payable to a person for a child for a period unless the person has made an effective claim for the child.

Note: See Part 3A‑4 for the rules about how to make an effective claim.

115AE The determination must specify the person’s DAPP period

(1) If the Secretary makes a determination that dad and partner pay is payable to a person for a child, the Secretary must specify, in the determination, the period for which dad and partner pay is payable to the person. That period is the person’s DAPP period.

Note: For a DAPP claimant’s DAPP period, see subsection 115BB(3).

(2) A person’s DAPP period must be the same as, or within, the maximum DAPP period for the child.

(3) The maximum DAPP period for a child is the period that:

(a) starts on the child’s maximum DAPP period start day; and

(b) ends on the child’s maximum DAPP period end day.

(4) The maximum DAPP period start day for a child is the later of the following days:

(a) the day the child was born;

(b) the claimant’s nominated start date.

(5) The maximum DAPP period end day for a child is the earlier of the following days:

(a) the day that is 13 days after the maximum DAPP period start day;

(b) the day before the child’s first birthday.

Part 3A‑2—Determinations about whether dad and partner pay is payable to a person

Division 1—Guide to this Part

115BA Guide to this Part

This Part is about the Secretary making determinations about whether dad and partner pay is payable to a person. These determinations are payability determinations. A person cannot be paid dad and partner pay unless there is a payability determination that dad and partner pay is payable to the person.

Division 2 has the rules that apply to the Secretary when making a payability determination.

Division 3 has restrictions that apply in particular circumstances to prevent the Secretary from making a payability determination that dad and partner pay is payable to a person (for example, where the child’s birth has not been verified or the person has already been paid dad and partner pay for the child).

Division 4 has general rules that apply to payability determinations (for example, if the Secretary makes a determination, the Secretary must give a notice of it to the claimant).

Division 2—Determinations about whether dad and partner pay is payable to a person

115BB Determination on a claim for dad and partner pay

When Secretary must make determination

(1) If a person has made an effective claim for dad and partner pay for a child, the Secretary must make a determination on the claim.

When dad and partner pay is payable to DAPP claimant

(2) The Secretary must determine that dad and partner pay is payable to the DAPP claimant for the claimant’s DAPP period if, when making the determination, the Secretary is satisfied that the DAPP claimant was or will be eligible for dad and partner pay on each day in that period.

Note: The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

DAPP claimant’s DAPP period

(3) The Secretary must specify in the determination under subsection (2) that the claimant’s DAPP period:

(a) starts on the child’s maximum DAPP period start day; and

(b) ends on:

(i) if the Secretary is satisfied that the DAPP claimant was or will be eligible for dad and partner pay on each day in the child’s maximum DAPP period—the child’s maximum DAPP period end day; or

(ii) if the Secretary is satisfied that the DAPP claimant was or will be eligible for a period that is shorter than the child’s maximum DAPP period—the last day in the child’s maximum DAPP period that the DAPP claimant was or will be eligible for dad and partner pay.

When dad and partner pay is not payable to DAPP claimant

(4) The Secretary must determine that dad and partner pay is not payable to the DAPP claimant if the Secretary is not satisfied of the matters in subsection (2).

Division 3—When the Secretary cannot make a determination that dad and partner pay is payable

115BC The child’s birth has not been verified

The Secretary must not make a payability determination that dad and partner pay is payable to a person for a child unless a person has verified the child’s birth.

Note: See subsection 18(2) for how a person verifies a child’s birth.

115BD The child was born before 1 January 2013

The Secretary must not make a payability determination that dad and partner pay is payable to a person for a child if the child was born before 1 January 2013.

115BE Multiple births

The Secretary must not make a payability determination that dad and partner pay is payable to a person for a child if:

(a) the child and another child are born during the same multiple birth; and

(b) dad and partner pay is or was payable to the person or another person for the other child.

115BF Dad and partner pay is already payable to the person etc.

(1) The Secretary must not make a payability determination that dad and partner pay is payable to a person for a child if:

(a) there is in force another payability determination that dad and partner pay is payable to the person for the child, in respect of a different claim made by the person; or

(b) there is in force a payability determination that dad and partner pay is payable to another person for the child.

(2) Paragraph (1)(b) does not apply to a claim that is made in circumstances prescribed by the PPL rules.

Division 4—General provisions applying to determinations about whether dad and partner pay is payable

115BG Assumptions when making the determination

In deciding whether to make a payability determination about dad and partner pay, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.

115BH When the determination is in force

A payability determination about dad and partner pay comes into force on the day it is made and continues in force unless it is:

(a) revoked under section 115BK (which deals with revoking a payability determination on the DAPP claimant’s request); or

(b) set aside under Chapter 5 (which deals with review of decisions).

115BJ Notice of the determination

If the Secretary makes a payability determination about dad and partner pay, the Secretary must give a notice of the determination to the DAPP claimant, stating:

(a) whether dad and partner pay is payable; and

(b) if dad and partner pay is payable—the DAPP claimant’s DAPP period; and

115BK Revoking the determination on request

(1) If:

(a) a payability determination is made that dad and partner pay is payable to a person; and

(b) the person requests the Secretary to revoke the determination; and

(i) before the start of the person’s DAPP period; and

(ii) in a manner approved by the Secretary;

then the Secretary must revoke the determination.

(2) The revocation is taken to have come into force on the day the person requested the Secretary to revoke the determination.

Division 5—Initial eligibility determinations about dad and partner pay

115BL Initial eligibility determinations

If a person makes an effective claim for dad and partner pay, the Secretary may make a determination (the initial eligibility determination) that the person is initially eligible for dad and partner pay for the child if, when making the determination, the Secretary is satisfied that the person:

(a) satisfies:

(i) the work test; and

(ii) the income test; and

(iii) the Australian residency test; or

(b) will satisfy those tests on the day immediately before the person’s nominated start date.

115BM Assumptions when making the initial eligibility determination

In deciding whether to make an initial eligibility determination about dad and partner pay, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.

115BN When the initial eligibility determination comes into force

An initial eligibility determination about dad and partner pay comes into force on the day it is made.

115BP Notice of the initial eligibility determination

If the Secretary makes an initial eligibility determination about dad and partner pay, the Secretary must give a notice of the determination to the DAPP claimant.

Part 3A‑3—Eligibility for dad and partner pay

Division 1—Guide to this Part

115CA Guide to this Part

This Part sets out when a person is eligible for dad and partner pay. The Secretary cannot make a payability determination that dad and partner pay is payable if the person is not eligible for it.

Division 2 sets out when a person is eligible for dad and partner pay. Subsection 115CB(2) deals with the main case and requires that for a person to be eligible for dad and partner pay for a child, the person must (broadly):

(a) satisfy the work test, the income test and the Australian residency test; and

(b) be caring for the child; and

There are other eligibility criteria that apply for more unusual cases—see subsection 115CB(3) (which deals with when a child is stillborn or dies) and subsection 115CB(4) (which allows the PPL rules to prescribe eligibility criteria).

The work test is mostly in Division 3 of Part 2‑3, but Division 3 of this Part has provisions relevant to DAPP claimants. To satisfy the work test, a person must have performed enough paid work or taken enough paid leave in a particular period before the person’s nominated start date for dad and partner pay. A previous PPL period and previous DAPP period of the person may be taken into account in working out whether the person satisfies the work test for a subsequent child. Special rules apply in the case of premature birth or complications or illness related to the pregnancy (see section 115CE) or if the person is already eligible for parental leave pay (see section 115CF).

The income test is mostly in Division 4 of Part 2‑3, but Division 4 of this Part has provisions relevant to DAPP claimants. To satisfy the income test, the person’s income for a particular income year must not be more than the PPL income limit (which is $150,000 until 30 June 2020 and then indexed). A special rule applies if the person is already eligible for parental leave pay (see subsection 115CG(2)).

The Australian residency test is in Division 5 of Part 2‑3. To satisfy this test, the person must be an Australian resident or be in a special class of visa holder.

Division 6 of this Part sets out when a person is caring for a child. For the main case, a person will not be eligible for dad and partner pay if the person is not caring for the child.

Division 7 of this Part sets out when a person is not working. For the main case, a person will not be eligible for dad and partner pay if the person performs one hour or more of work other than for a purpose of performing the work for a business that the person carries on and that consists of overseeing the business or is an occasional administrative task.

Division 2—When a DAPP claimant is eligible for dad and partner pay

115CB When a DAPP claimant is eligible for dad and partner pay

(1) This section sets out when a DAPP claimant is eligible for dad and partner pay for a child on a day.

Eligible

(2) First, a DAPP claimant is eligible for dad and partner pay for a child on a day if, on that day:

(a) the claimant satisfies the work test (see Division 3 of Part 2‑3 and sections 115CD, 115CE and 115CF); and

(b) the claimant satisfies the income test (see Division 4 of Part 2‑3 and sections 115CG, 115CH and 115CJ); and

(d) the claimant is caring for the child (see Division 6 of this Part); and

(e) the claimant is not working (see Division 7 of this Part).

(3) Second, a DAPP claimant is eligible for dad and partner pay for a child on a day if:

(a) the child is stillborn or has died before that day; and

(b) on that day, the claimant would be eligible under subsection (2) for dad and partner pay for the child, if paragraphs (2)(d) and (e) were disregarded; and

(4) Third, a DAPP claimant is eligible for dad and partner pay for a child on a day if, on that day, the claimant satisfies:

(a) the work test (see Division 3 of Part 2‑3 and sections 115CD, 115CE and 115CF); and

(b) the income test (see Division 4 of Part 2‑3 and sections 115CG, 115CH and 115CJ); and

(d) the conditions prescribed by the PPL rules.

Not eligible—overlap with PPL period

(5) If there is in force a payability determination that parental leave pay is payable to a person for a child for the person’s PPL period, then, despite subsections (2), (3) and (4), the person is not eligible for dad and partner pay for the child on a day that is in the PPL period.

Not eligible—overlap with DAPP period for another child

(6) If there is in force a payability determination that dad and partner pay is payable to a person for a child for the person’s DAPP period, then, despite subsections (2), (3) and (4), the person is not eligible for dad and partner pay for another child on a day that is in that DAPP period.

Not eligible—excess days

(7) Despite subsections (2), (3) and (4), if:

(a) there is in force a payability determination that parental leave pay is payable to a person for a child for the person’s PPL period; and

(b) combined, the total days in the PPL period and the reference period for the person’s claim for dad and partner pay for the child exceed 126;

then:

(d) the person is not eligible for dad and partner pay for the child on a day excluded by the Secretary.

Not eligible—claimant deceased

(8) Despite subsections (2), (3) and (4), a DAPP claimant is not eligible for dad and partner pay for a child on a day if, on that day, the claimant is deceased.

Division 3—Applying the work test to claimants for dad and partner pay

115CC When a DAPP claimant satisfies the work test

To work out whether a DAPP claimant satisfies the work test on a day in accordance with section 32, use the method statement in section 32 with the work test period in section 115CD.

Note: Sections 115CE and 115CF in this Division are alternative ways of satisfying the work test for DAPP claimants.

115CD The work test period

For the purposes of satisfying the work test in accordance with section 32, the work test period for a DAPP claimant is the 392 days immediately before the claimant’s nominated start date.

Note: Sections 115CE and 115CF in this Division are alternative ways of satisfying the work test for DAPP claimants.

115CE Premature birth

A DAPP claimant also satisfies the work test on a day if:

(a) the Secretary is satisfied that the child was born prematurely; and

(b) the Secretary is satisfied that the DAPP claimant would have satisfied the work test on the day in accordance with section 32 if the child had not been born prematurely.

115CF DAPP claimant who is already eligible for parental leave pay

A DAPP claimant also satisfies the work test on a day if the Secretary is satisfied that the DAPP claimant is eligible for parental leave pay for the child.

Division 4—Applying the income test to claimants for dad and partner pay

115CG When a DAPP claimant satisfies the income test

(1) To work out whether a DAPP claimant satisfies the income test in subsection 37(1) on a day, use the income test in subsection 37(1) with the reference income year in section 115CH and the relevant PPL income limit in section 115CJ.

(2) A DAPP claimant also satisfies the income test on a day if the Secretary is satisfied that the DAPP claimant is eligible for parental leave pay for the child.

115CH The reference income year

The reference income year for a DAPP claimant is the income year that ended before the earlier of the following days:

(a) the day the DAPP claimant made the claim for dad and partner pay;

(b) the DAPP claimant’s nominated start date.

115CJ The relevant PPL income limit

The relevant PPL income limit for a DAPP claimant is the PPL income limit that applies on the earlier of the following days:

(a) the day the DAPP claimant made the claim for dad and partner pay;

(b) the DAPP claimant’s nominated start date.

Note: For PPL income limit, see section 41. The PPL income limit may be indexed under Subdivision B of Division 4 of Part 2‑3.

Division 5—Applying the Australian residency test to claimants for dad and partner pay

115CK When a DAPP claimant satisfies the Australian residency test

To work out whether a DAPP claimant satisfies the Australian residency test on a day, use the Australian residency test in sections 45 and 46.

Division 6—Caring for a child

115CL When a DAPP claimant is caring for a child

(1) A DAPP claimant is caring for a child on a day in the DAPP claimant’s reference period if the child is in the DAPP claimant’s care in that period.

(2) A DAPP claimant’s reference period is the period that is determined by the Secretary for the purposes of making a payability determination on the DAPP claimant’s claim.

(3) More than one person may be caring for the same child on any particular day. This does not prevent one of the persons being the primary carer of the child under section 47.

(4) Despite subsection (1), a person is not caring for a child on a day if, before that day, the child has died.

Division 7—Not working

115CM When a DAPP claimant is not working

(1) A DAPP claimant is not working on a day if neither of the following apply on that day:

(a) the DAPP claimant performs one hour or more of paid work, other than for a purpose that is a permissible purpose under subsection 49(2);

(b) the DAPP claimant is on paid leave.

(2) However, the PPL rules may prescribe circumstances in which a DAPP claimant is taken to be not working even though paragraph (1)(a) or (b) applies to the claimant.

Part 3A‑4—Claims for dad and partner pay

Division 1—Guide to this Part

115DA Guide to this Part

This Part is about claims for dad and partner pay. A person cannot be paid dad and partner pay unless the person has first made a claim for it.

Division 2 sets out the rules about claims. Section 115DD sets out who can make a claim for dad and partner pay.

The Secretary cannot make a payability determination on a claim unless it is an effective claim. To be effective, the claim must be made by the right person and satisfy the requirements in the provisions listed in section 115DE. One of those requirements is that the claim must be in the form, and contain the information, required by the Secretary (see section 115DF). Another requirement is that the claim must be made in the period set out in section 115DK.

Division 2—Claims for dad and partner pay

115DB Who can claim

Only a natural person can make a claim for dad and partner pay.

115DC Form of claim

A claim for dad and partner pay must be made in the form approved by the Secretary for claims for dad and partner pay.

115DD Who can make a claim for dad and partner pay

Only the following people can make a claim for dad and partner pay for a child:

(a) the biological father of the child;

(b) the partner of the child’s birth mother;

(d) a person who satisfies circumstances prescribed by the PPL rules.

115DE When a claim is effective

(1) A claim for dad and partner pay is not effective unless the requirements of the following provisions that apply to the claim are satisfied:

(a) section 115DF (which deals with the form etc. of the claim);

(b) section 115DG (which deals with the nominated start date);

(d) section 115DJ (which deals with tax file number statements);

(e) section 115DK (which deals with when to make the claim).

(2) A claim for dad and partner pay is also not effective if it is made by a person who cannot make a claim under section 115DD.

(3) A claim for dad and partner pay that is not effective is taken not to have been made.

115DF Requirements of the claim

The claim for dad and partner pay must:

(a) be made in the form approved, and the manner required, by the Secretary for dad and partner pay; and

(b) contain any information required by the Secretary; and

115DG Nominated start date

(1) The claim must state a specific date (the nominated start date) which is the first day of the period for which the claimant wants to be paid dad and partner pay.

(2) The nominated start date must be on or after:

(a) if the claim is made before the child is born—the expected date of birth of the child; or

(b) if the claim is made after the child is born—the child’s actual date of birth.

(3) Before a payability determination is made on the claim for dad and partner pay, the claimant may change his or her nominated start date by notifying the Secretary of the new nominated start date.

(4) If a payability determination is made that dad and partner pay is payable to the claimant, the claimant may only change his or her nominated start date (the old date) by notifying the Secretary, before the old date, of the new nominated start date.

115DH Expected or actual date of birth

The claim for dad and partner pay for a child must specify the child’s expected date of birth or, if made after the child is born, the child’s actual date of birth.

115DJ Tax file number statement

The claim for dad and partner pay must contain the person’s tax file number statement, which is a statement of the kind set out in subsection 59(2), (3) or (4).

115DK When to claim

A claim for dad and partner pay for a child must be made in the period that:

(a) starts on the day that is 97 days before the expected date of birth of the child; and

(b) ends on the day before the child’s first birthday.

115DL Claim may be withdrawn or varied

(1) After making an effective claim for dad and partner pay, the person may withdraw or vary the claim before a payability determination is made on it.

(2) The person may only do so in a manner approved by the Secretary.

(3) If a claim is withdrawn, it is taken never to have been made.

Part 3A‑5—Payment of dad and partner pay

Division 1—Guide to this Part

115EA Guide to this Part

This Part is about the payment of dad and partner pay.

Generally, dad and partner pay is paid by the Secretary as a single payment.

The amount is worked out by reference to the period for which the person is eligible for dad and partner pay.

Division 2—Payment of dad and partner pay

115EB Payment of dad and partner pay

If the Secretary makes a payability determination that dad and partner pay is payable to a person for a child, the Secretary must pay the dad and partner pay to the person as soon as practicable after making the determination (but not before the start of the person’s DAPP period).

115EC Amount of dad and partner pay

The amount of dad and partner pay to be paid to the person is the total of the daily national minimum wage amounts for each week day during the person’s DAPP period.

Note: See subsection 65(2) for the daily national minimum wage amount for a day.

115ED Method of payment of dad and partner pay

(1) The Secretary must pay dad and partner pay that is payable to a person to the credit of a bank account nominated and maintained by the person.

(2) The Secretary may direct that the whole or a part of a payment of dad and partner pay is to be paid in a way different from that provided for by subsection (1). If the Secretary gives the direction, the payment is to be paid in accordance with the direction.

(3) A direction made under subsection (2) is not a legislative instrument.

115EE Giving person record of payment

If the Secretary pays dad and partner pay to or in relation to a person, in particular circumstances, the Secretary must give the person the information prescribed by the PPL rules in relation to dad and partner pay paid in those circumstances.

115EF Effect of extending DAPP period after review

(1) If:

(a) the Secretary has made a payability determination that dad and partner pay is payable to a person; and

(b) after the Secretary has paid the dad and partner pay, a decision is made in relation to the payability determination that has the effect that a higher amount of dad and partner pay is payable to the person;

the Secretary must pay the person the difference between the higher amount and the amount already paid to the person as soon as practicable after the decision is made.

(2) To avoid doubt, any difference worked out under subsection (1) is also dad and partner pay.

115EG Protection of payment

(1) A payment of dad and partner pay is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.

Note: Section 115EK (which deals with the effect of a garnishee etc. order) also provides a protection for an account into which dad and partner pay has been paid.

(2) Subsection (1) has effect subject to sections 115EH and 115EI.

115EH Deductions for PAYG withholding

The Secretary may deduct an amount from a payment of dad and partner pay to a person if the Secretary is required to withhold the amount under section 12‑110 in Schedule 1 to the Taxation Administration Act 1953.

115EI Deductions to avoid overpayment of income support payment

If:

(a) a payability determination that dad and partner pay is payable to a person is made; and

(b) an amount of dad and partner pay relating to the person’s DAPP period becomes payable to the person by the Secretary on a particular day; and

(d) the Secretary is satisfied that the amount of income support payment so paid exceeds the amount of income support payment that would have been payable to the person for the income support period under that law or Act had the amount of dad and partner pay been taken into account when working out the amount of income support payment payable to the person for that period under that law or Act;

then the Secretary may deduct from the amount of dad and partner pay an amount equal to the excess.

Note: A person’s income is taken into account when working out the amount of income support payment that is payable to the person under the social security law or the Veterans’ Entitlements Act 1986. An amount of dad and partner pay is income so payment of such an amount may reduce the amount of income support payment that is payable to the person.

115EJ No other deductions

An amount must not be deducted from a payment of dad and partner pay except in accordance with section 115EH or 115EI. This section applies despite any other law of the Commonwealth, a State or a Territory.

115EK Effect of garnishee etc. order

(1) If:

(a) dad and partner pay has been paid to the credit of an account; and

(b) a court order in the nature of a garnishee order comes into force in relation to the account;

the court order does not apply to the saved amount (if any) in the account.

(2) The saved amount is worked out as follows:

Method statement

Step 1. Work out the total amount of dad and partner pay that has been paid to the credit of the account during the 4 week period immediately before the court order came into force.

Step 2. Subtract from the step 1 amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount.

115EL Exemption from operation of workers’ compensation and accident compensation laws

(1) The payment of dad and partner pay is not to be taken into account for the purposes of the following provisions or laws:

(a) a provision of a law of the Commonwealth, a State or a Territory, if the provision deals with:

(i) workers’ compensation; or

(ii) accident compensation;

(b) a law, or a provision of a law, prescribed by the PPL rules, to the extent that the law or provision deals with a matter referred to in paragraph (a).

(2) The PPL rules may provide that subsection (1) does not apply in relation to a prescribed provision of a law of the Commonwealth, a State or a Territory.

115EM DAPP period is not a period of paid leave

Despite any law of the Commonwealth, a State or a Territory, or any industrial instrument (however described), a period of unpaid leave is not to be taken to be a period of paid leave just because a person receives dad and partner pay for all or part of that period.

Chapter 4—Compliance and enforcement

Part 4‑1—Information gathering

Division 1—Guide to this Part

116 Guide to this Part

This Part allows the Secretary to gather information for the purposes of checking compliance with this Act.

Subdivision A of Division 2 allows the Secretary to require a person to give certain information or produce certain documents that are relevant to this Act.

Subdivision B of Division 2 deals with tax file numbers and the purposes for which tax file numbers may be used.

Subdivision C of Division 2 imposes an obligation on a person to whom instalments of parental leave pay are payable, or to whom dad and partner pay is payable, to notify the Secretary of a change of circumstances.

Division 3 deals with the confidentiality of personal and protected information.

Division 4 contains rules relating to offences against Parts 7.3 and 7.4 of the Criminal Code (which deal with fraudulent conduct and false and misleading statements) in relation to this Act.

Division 2—Information gathering

Subdivision A—Gathering information from any person

117 General power to obtain information

(1) The Secretary may require a person to give information, or produce a document that is in the person’s custody or under the person’s control, to a specified agency if the Secretary considers that the information or document may be relevant to one or more of the following:

(a) determining whether a person who has made an effective claim for parental leave pay is or was eligible for parental leave pay, or is or was initially eligible for parental leave pay;

(b) determining whether parental leave pay is or was payable to a person;

(d) ensuring the Secretary can pay instalments of parental leave pay into the bank account of a person to whom instalments of parental leave pay are payable;

(e) determining whether to make an employer determination, or whether an employer determination should have been made;

(f) determining whether PPL funding amounts are or were payable to a person;

(g) ensuring that an employer complies or has complied with its obligations under this Act.

Note: The agency specified must be a PPL agency (see subsection 120(4)).

(2) The Secretary may require a person to give information, or produce a document that is in the person’s custody or under the person’s control, to a specified agency if the Secretary considers that the information or document may be relevant to one or more of the following:

(a) determining whether a person who has made an effective claim for dad and partner pay is or was eligible for dad and partner pay, or is or was initially eligible for dad and partner pay;

(b) determining whether dad and partner pay is or was payable to a person;

(c) ensuring the Secretary can pay dad and partner pay into the bank account of a person to whom dad and partner pay is payable.

118 Power to obtain information from a person who owes a debt to the Commonwealth

The Secretary may require a person who owes a debt to the Commonwealth under or because of this Act:

(a) either to:

(i) give to a specified agency information that is relevant to the person’s financial situation; or

(ii) produce to a specified agency a document that is in the person’s custody or under the person’s control and is relevant to the person’s financial situation; and

(b) if the person’s address changes—to inform the specified agency of the new address within 14 days after the change.

Note: The agency specified must be a PPL agency (see subsection 120(4)).

119 Obtaining information about a person who owes a debt to the Commonwealth

If the Secretary believes that a person may have information or a document:

(a) that would help a specified agency locate another person (the debtor) who owes a debt to the Commonwealth under or because of this Act; or

(b) that is relevant to the debtor’s financial situation;

the Secretary may require the person to give the information, or produce the document, to the specified agency.

Note: The agency specified must be a PPL agency (see subsection 120(4)).

120 Written notice of requirement

Notice to be in writing

(1) A requirement under this Subdivision must be made by written notice given to the person of whom the requirement is made.

Contents of notice

(2) The notice:

(a) may be given personally or by post or in any other manner approved by the Secretary; and

(b) must specify:

(i) how the person is to give the information or produce the document to which the requirement relates; and

(ii) the period within which the person is to give the information or produce the document; and

(iii) the agency, and the officer (if any), to whom the information is to be given or the document is to be produced; and

(iv) that the notice is given under this section.

(3) The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the day the notice is given.

(4) For the purposes of subparagraph (2)(b)(iii), the Secretary must specify a PPL agency.

Requirement to attend interview

(5) The notice may require the person to give the information by appearing before a specified officer to answer questions.

(6) If the notice requires the person to appear before an officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the day the notice is given.

121 Obligations not affected by State or Territory laws

Nothing contained in a law of a State or a Territory operates to prevent a person from:

(a) giving information; or

(b) producing a document; or

that the person is required to give or produce to a specified agency or an officer for the purposes of this Act.

122 Offence—failure to comply with requirement

(1) A person commits an offence if:

(a) the person is required under this Subdivision (other than under paragraph 117(1)(d) or (2)(c) (which deal with information about bank accounts)) to give information or produce a document; and

(b) the person refuses or fails to comply with the requirement.

Penalty: Imprisonment for 6 months.

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Subdivision B—Gathering information relating to tax file numbers

123 Secretary may require Commissioner of Taxation to provide tax file numbers etc.

The Secretary may require the Commissioner of Taxation to provide the Secretary with information (including a tax file number) that is:

(a) about a person who has made an effective claim for parental leave pay or dad and partner pay; and

(b) relevant to the claim; and

(c) contained in a TFN declaration lodged with the Commissioner under Division 3 of Part VA of the Income Tax Assessment Act 1936.

124 Purposes for which tax file numbers may be used

(1) Subsection (2) applies to the tax file number of a person that is provided to the Secretary:

(a) under a provision of this Act, for the purposes of this Act:

(i) by the person; or

(ii) by the partner of the person; or

(iii) by the Commissioner of Taxation on the authority of the person; or

(b) by the Commissioner of Taxation under section 123.

(2) A tax file number provided to the Secretary as referred to in subsection (1) may be used only for the following purposes:

(a) to detect cases in which instalments of parental leave pay have been paid when they should not have been paid;

(b) to verify, in relation to persons who have made effective claims for parental leave pay, the eligibility of those persons for that pay;

(d) to verify, in relation to persons who have made effective claims for dad and partner pay, the eligibility of those persons for that pay.

Subdivision C—Obligation to notify of change of circumstances

125 Obligation to notify of change of circumstances

(1) A person who has made an effective claim for parental leave pay, in respect of which there is not in force any payability determination that parental leave pay is not payable, must notify the Secretary of the following things:

(a) anything that causes the person to cease to be eligible for parental leave pay on a day;

(b) anything that is likely to have the effect described in paragraph (a).

(2) A person who has made an effective claim for dad and partner pay, in respect of which there is not in force any payability determination that dad and partner pay is not payable, must notify the Secretary of the following things:

(a) anything that causes the person to cease to be eligible for dad and partner pay on a day;

(b) anything that is likely to have the effect described in paragraph (a).

(3) The person must notify the Secretary, in the manner set out in a written notice given to the person under subsection (5), as soon as practicable after the person becomes aware that the thing has happened or is likely to happen.

(4) The Secretary must approve a manner of notification that a person must use when notifying the Secretary of a thing under this section.

(5) The Secretary must, by written notice, notify the person of the approved manner of notification.

(6) A person commits an offence if:

(a) the person is required to notify the Secretary of a thing under this section; and

(b) the person refuses or fails to comply with the requirement.

Penalty for contravention of this subsection: Imprisonment for 6 months.

Division 3—Confidentiality

126 Operation of Division

(1) Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:

(a) the Child Support (Assessment) Act 1989; or

(b) the Child Support (Registration and Collection) Act 1988.

(2) The provisions of this Division that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.

127 Obtaining and using protected information

Obtaining protected information

(1) A person may obtain protected information if the information is obtained for the purposes of this Act.

Using protected information

(2) A person may:

(a) make a record of protected information; or

(b) disclose such information to any person; or

if the record, disclosure or use of the information by the person is made:

(d) for the purposes of this Act; or

(da) for the purposes of the family assistance law; or

(db) for the purposes of the social security law; or

(dc) for the purposes of the Student Assistance Act 1973; or

(e) for the purposes for which the information was disclosed to the person under section 128; or

(f) with the express or implied authorisation of the person to whom the information relates.

(3) A person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person.

128 Disclosing personal information

(1) Despite sections 129 to 132, the Secretary may disclose information acquired by an officer in the exercise of the officer’s powers, or the performance of the officer’s duties or functions, under this Act:

(a) to such persons and for such purposes as the Secretary determines, if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases; or

(b) to an Agency Head for the purposes of that Agency (within the meaning of the Public Service Act 1999), but only if the disclosure of the information is required by a law of the Commonwealth; or

(d) to the Minister for the purposes of assisting the Minister to consider a complaint or issue in relation to a matter arising under this Act if the Secretary reasonably believes that the disclosure is likely to assist the Minister; or

(e) to an SES employee, or an APS employee, in the Department, for the purposes of briefing, or considering briefing, the Minister if the Secretary reasonably believes the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.

Note: Information disclosed under this section must also be dealt with in accordance with the Australian Privacy Principles.

(2) In giving certificates for the purposes of paragraph (1)(a), the Secretary must act in accordance with guidelines (if any) from time to time in force under subsection (4).

(3) In disclosing information under paragraph (1)(b), the Secretary must act in accordance with guidelines (if any) from time to time in force under subsection (4).

(4) The Minister may, in the PPL rules, make guidelines for the exercise of either or both of the following:

(a) the Secretary’s power to give certificates for the purposes of paragraph (1)(a);

(b) the Secretary’s power under paragraph (1)(b).

(5) If a determination or certificate under paragraph (1)(a) is made or given in writing, the determination or certificate is not a legislative instrument.

(6) Despite any other provision of this Part, the Secretary may disclose information of a kind referred to in paragraph (a) or (b) of the definition of protected information in section 6 that relates to a principal to the principal’s payment nominee or correspondence nominee.

129 Offence—unauthorised access to protected information

A person commits an offence if:

(a) the person obtains information; and

(b) the person is not authorised under this Act to obtain the information; and

Penalty: Imprisonment for 2 years.

130 Offence—unauthorised use of protected information

A person commits an offence if:

(a) the person:

(i) makes a record of information; or

(ii) discloses information to any other person; or

(iii) otherwise makes use of information; and

(b) the person is not authorised or required under this Act to make that record, disclosure or use of the information; and

Penalty: Imprisonment for 2 years.

130A Disclosure of information by AAT members—threat to life, health or welfare

Despite section 130, an AAT member may disclose information if the information concerns a threat to the life, health or welfare of a person and either of the following applies:

(a) the member believes on reasonable grounds that the disclosure is necessary to prevent or lessen the threat;

(b) there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the member discloses the information for the purpose of preventing, investigating or prosecuting such an offence.

131 Offence—soliciting disclosure of protected information

(1) A person commits an offence if:

(a) the person solicits the disclosure of information from an officer or another person; and

(b) the disclosure would be in contravention of this Division; and

Penalty: Imprisonment for 2 years.

(2) A person may commit an offence under subsection (1) whether or not any protected information is actually disclosed.

132 Offence—offering to supply protected information

(1) A person commits an offence if:

(a) the person offers to supply (whether to a particular person or otherwise) information about another person; and

(b) the information is protected information.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and

(b) the information is protected information.

Penalty: Imprisonment for 2 years.

(3) Nothing in subsection (1) or (2) makes an officer acting in the performance or exercise of his or her powers, duties or functions under this Act guilty of an offence.

Division 4—Offences against Parts 7.3 and 7.4 of the Criminal Code

133 Repayment of instalment of parental leave pay, PPL funding amount or dad and partner pay

(1) If a person is convicted of an offence against Part 7.3 or 7.4 of the Criminal Code in relation to this Act, the court may:

(a) impose a penalty in relation to the offence; and

(b) order the person to pay the Commonwealth an amount equal to any amount:

(i) paid to, or in relation to, the person by way of an instalment of parental leave pay because of the act, failure or omission that constituted the offence; or

(ii) paid to the person by way of a PPL funding amount because of the act, failure or omission that constituted the offence; or

(iii) paid to, or in relation to, the person by way of dad and partner pay because of the act, failure or omission that constituted the offence.

Note: The Secretary and a court may give a certificate in relation to the amount referred to in paragraph (1)(b) (see sections 138 and 139).

(2) Despite anything in this Act or any other law, a person is not to be imprisoned for failing to pay an amount payable to the Commonwealth under paragraph (1)(b).

134 Penalty where person convicted of more than one offence

(1) If a person is convicted of more than one offence against Part 7.3 or 7.4 of the Criminal Code in relation to this Act, the court may, if it considers it appropriate, impose one penalty for all the offences.

(2) However, a single penalty imposed under subsection (1) must not be more than the sum of the maximum penalties that could be imposed if a separate penalty were imposed for each offence.

135 Joining of charges

Charges against the same person for a number of offences against Part 7.3 or 7.4 of the Criminal Code in relation to this Act may be joined in one complaint, information or declaration if those charges:

(a) are founded on the same facts; or

(b) form a series of offences of the same or a similar character; or

136 Particulars of each offence

If 2 or more charges are included in the same complaint, information or declaration, particulars of each offence charged are to be set out in a separate paragraph.

137 Trial of joined charges

If charges are joined, the charges are to be tried together unless:

(a) the court considers it just that any charge should be tried separately; and

(b) the court makes an order to that effect.

138 Evidentiary effect of Secretary’s certificate

(1) For the purposes of paragraph 133(1)(b), a certificate signed by the Secretary is prima facie evidence of the matters specified in the certificate.

(2) The certificate may specify:

(a) the person to whom an instalment of parental leave pay, a PPL funding amount or dad and partner pay has been paid because of an act, a failure or an omission for which the person or another person has been convicted of an offence against Part 7.3 or 7.4 of the Criminal Code; and

(b) the amount paid; and

139 Enforcement of court certificate as judgment

If:

(a) a court makes an order under paragraph 133(1)(b); and

(b) the clerk or other appropriate officer of the court gives a certificate specifying:

(i) the amount ordered to be paid to the Commonwealth; and

(ii) the person by whom the amount is to be paid; and

(c) the certificate is filed in a court (which may be the court that made the order) that has civil jurisdiction to the extent of the amount to be paid;

the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.

Part 4‑2—Compliance

Division 1—Guide to this Part

140 Guide to this Part

This Part deals with compliance with this Act.

Division 2 allows the Secretary to refer matters to the Fair Work Ombudsman for investigation if the Secretary has reason to believe that an employer has not complied with certain obligations under this Act.

Division 3 deals with civil penalty provisions. These provisions impose obligations on certain persons. Civil penalty orders may be sought in relation to contraventions of civil penalty provisions.

Division 4 deals with compliance notices. A compliance notice can be given to a person who has contravened a civil penalty provision, requiring the person to rectify the contravention.

Division 5 deals with infringement notices. A person who is given an infringement notice can choose to pay a penalty. If the penalty is not paid, a civil penalty order may be sought in relation to the person.

Division 2—Referring matters to the Fair Work Ombudsman

141 Functions of the Fair Work Ombudsman

The Fair Work Ombudsman has the following functions:

(a) to inquire into, and investigate, any matter referred to the Fair Work Ombudsman under section 143;

(b) to commence proceedings in a court in relation to a contravention of section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 (which deals with payment of instalments by an employer);

142 Exercise of compliance powers

(1) A Fair Work Inspector may exercise compliance powers (within the meaning of the Fair Work Act) (other than a power under section 715 or 716 of that Act) for the purpose of determining whether the following provisions of this Act are being, or have been, complied with:

(a) section 70 (which deals with unauthorised deductions from instalments);

(b) Part 3‑2 (which deals with payment of instalments by an employer).

(2) For the purposes of the Fair Work Act:

(a) the purpose referred to in subsection (1) of this section is taken to be a compliance purpose; and

(b) a civil penalty provision under section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 of this Act (which deals with payment of instalments by an employer) is taken to be a civil remedy provision.

143 Referring matters to the Fair Work Ombudsman

(1) The Secretary may refer a matter to the Fair Work Ombudsman for investigation if:

(a) the Secretary has reason to believe that an employer has not complied with an obligation under section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 (which deals with payment of instalments by an employer) in relation to a person; and

(b) the Secretary does not believe that the employer and the person are able to resolve the matter themselves.

(2) The Secretary must inform the employer and the person, in writing, if the Secretary refers the matter to the Fair Work Ombudsman.

(3) The Secretary must give the Fair Work Ombudsman the following information:

(a) if the contravention is in relation to section 70, 72 or 74:

(i) the day on which the Secretary paid a PPL funding amount to the employer for the person; and

(ii) a copy of the notice given to the employer under section 77 in relation to the PPL funding amount;

(b) in any case—any action taken or information obtained by the Secretary in relation to the matter.

144 Fair Work Ombudsman to notify of outcome of investigation

The Fair Work Ombudsman must, as soon as practicable after completing an investigation referred by the Secretary under section 143, notify the Secretary, in writing, of the outcome of the investigation.

Note: If the Fair Work Ombudsman gives a compliance notice, the Fair Work Ombudsman must also notify the Secretary of the outcome of the compliance notice (see section 158).

Division 3—Civil penalty orders

145 Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a civil penalty provision is taken to have contravened that provision.

(2) A person is involved in a contravention of a civil penalty provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

146 Civil penalty provisions

A provision referred to in column 1 of an item in the table is a civil penalty provision.

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
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

147 Civil penalty orders

(1) If the Federal Court or the Federal Circuit Court is satisfied that a person has contravened one or more civil penalty provisions, the court may, on the application of the Secretary or the Fair Work Ombudsman, order the person to pay to the Commonwealth such pecuniary penalty, in relation to each contravention, as the court determines to be appropriate.

Note: Subsection (3) sets out the maximum penalty that the court may order the person to pay.

(2) An order under subsection (1) is a civil penalty order.

Determining pecuniary penalty

(3) The pecuniary penalty must not be more than:

(a) if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 2 of the table in section 146; and

(b) otherwise—the maximum number of penalty units referred to in the relevant item in column 2 of the table in section 146.

(4) In determining the pecuniary penalty, the court must take into account all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered because of the contravention; and

(d) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct; and

(e) the likely impact of the penalty on the person.

Civil enforcement of penalty

(5) The pecuniary penalty is a civil debt payable to the Commonwealth.

(6) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

148 Proceedings may be heard together

The Federal Court or the Federal Circuit Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

149 Time limit for application for an order

Proceedings for a civil penalty order may be commenced no later than 4 years after the contravention.

150 Civil evidence and procedure rules for civil penalty orders

The Federal Court or the Federal Circuit Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

151 Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions.

(2) However, the person is not liable to more than one pecuniary penalty under this Act in relation to the same conduct.

152 Civil proceedings after criminal proceedings

Neither the Federal Court nor the Federal Circuit Court may make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

153 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.

(2) The proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise:

(a) the civil proceedings are dismissed; and

(b) costs must not be awarded in relation to the civil proceedings.

154 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.

155 Evidence given in proceedings for penalty not admissible in criminal proceedings

(1) Evidence of information given or evidence of production of documents by a natural person is not admissible in criminal proceedings against the person if:

(a) the person previously gave the evidence or produced the documents in proceedings for a civil penalty order against the person for a contravention of a civil penalty provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the person in the proceedings for the civil penalty order.

156 Requirement for person to assist in applications for civil penalty orders

(1) A person commits an offence if:

(a) the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and

(b) the person fails to comply with the request.

Penalty: 10 penalty units.

Note: This section does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, documents or other things.

(2) A request under subsection (1) is not a legislative instrument.

(3) The Secretary can request a person to assist under subsection (1) only if:

(a) it appears to the Secretary that the person is unlikely to have:

(i) contravened the civil penalty provision to which the application relates; or

(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and

(b) the Secretary suspects or believes that the person can give information relevant to the application.

(4) The Secretary cannot request a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.

(5) The Federal Court or the Federal Circuit Court may order a person to comply with a request under subsection (1) in a specified way. Only the Secretary may apply to the court for an order under this subsection.

(6) For the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made.

Division 4—Compliance notices

157 Giving a compliance notice

Compliance notice given by Secretary

(1) This section applies if the Secretary reasonably believes that a person has contravened one or more of the following provisions:

(a) subsection 82(2) (which deals with notifying the Secretary if certain events happen);

(b) section 103 (which deals with responding to an employer determination);

Compliance notice given by Fair Work Ombudsman

(2) This section also applies if the Fair Work Ombudsman reasonably believes that a person has contravened one or more of the following provisions:

(a) subsection 70(2) (which deals with unauthorised deductions from instalments);

(b) subsection 72(1), (2) or (3) (which deals with when an employer pays instalments);

(d) section 80 (which deals with giving a person a record of payment);

(e) subsection 81(1) or (2) (which deals with keeping records).

Requirements of a compliance notice

(3) The Secretary or the Fair Work Ombudsman may give the person a notice (a compliance notice) requiring the person to do the following within 14 days of the day on which the notice is given:

(a) take the action set out in the notice to rectify the contravention;

(b) produce reasonable evidence of the person’s compliance with the notice.

(4) A person must not fail to comply with a compliance notice.

Note: This subsection is a civil penalty provision (see section 146).

Contents of a compliance notice

(5) A compliance notice must also:

(a) set out the name of the person to whom the notice is given; and

(b) set out the name of the person who gave the notice; and

(d) explain that a failure to comply with the notice may contravene a civil penalty provision; and

(e) set out any other matters prescribed by the PPL rules.

158 Fair Work Ombudsman to notify of outcome of compliance notice

If the Fair Work Ombudsman gives a compliance notice to a person, the Fair Work Ombudsman must, as soon as practicable, notify the Secretary, in writing, of the outcome of the compliance notice.

Division 5—Infringement notices

159 Giving an infringement notice

Infringement notice given by Secretary

(1) The Secretary may give a person a notice (an infringement notice) if the Secretary reasonably believes that the person has contravened one or more of the following provisions:

(a) subsection 82(2) (which deals with notifying the Secretary if certain events happen);

(b) section 103 (which deals with responding to an employer determination);

(d) subsection 157(4), in relation to a compliance notice given to the person by the Secretary.

Infringement notice given by Fair Work Ombudsman

(2) The Fair Work Ombudsman may give a person a notice (an infringement notice) if the Fair Work Ombudsman reasonably believes that the person has contravened one or more of the following provisions:

(a) subsection 70(2) (which deals with unauthorised deductions from instalments);

(b) subsection 72(1), (2) or (3) (which deals with when an employer pays instalments);

(d) section 80 (which deals with giving a person a record of a payment);

(e) subsection 81(1) or (2) (which deals with keeping records);

(f) subsection 157(4), in relation to a compliance notice given to the person by the Fair Work Ombudsman.

When infringement notice must be given

(3) The infringement notice must be given within 12 months of:

(a) if paragraph (1)(d) or (2)(f) applies—the day on which the 14 day period referred to in subsection 157(3) ends; and

(b) otherwise—the day on which the alleged contravention occurred.

Contents of infringement notice

(4) An infringement notice must:

(a) set out the name of the person to whom the notice is given; and

(b) set out the name of the person who gave the notice; and

(i) the day referred to in paragraph (3)(a) or (b); and

(ii) the provision of this Act that was allegedly contravened; and

(d) contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court or the Federal Circuit Court if the penalty specified in the notice is paid to the Commonwealth, within:

(i) 28 days after the notice is given; or

(ii) if the Secretary allows a longer period—that longer period; and

(e) give an explanation of how payment of the penalty is to be made; and

(f) set out any other matters prescribed by the PPL rules.

Amount of penalties in infringement notices

(5) An infringement notice that is given to a body corporate must specify a pecuniary penalty equal to:

(a) in relation to a contravention of section 80 (which deals with giving a person a record of payments) or subsection 81(1) or (2) (which deals with keeping records)—15 penalty units; and

(b) in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2)—15 penalty units; and

(6) An infringement notice that is given to a person other than a body corporate must specify a pecuniary penalty equal to:

(a) in relation to a contravention of section 80 (which deals with giving a person a record of payments) or subsection 81(1) or (2) (which deals with keeping records)—3 penalty units; and

(b) in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2)—3 penalty units; and

160 Withdrawal of an infringement notice

(1) The Secretary may withdraw an infringement notice that has been given to a person by the Secretary.

(2) The Fair Work Ombudsman may withdraw an infringement notice that has been given to a person by the Fair Work Ombudsman.

(3) For a withdrawal to be effective, a written notice that withdraws the infringement notice must be given to the person within 42 days after the infringement notice was given to the person.

(4) Despite subsection (3), a withdrawal may be effective if it is given to a person later than 42 days after an infringement notice is given to the person if the person has applied to a court for judicial review in relation to the making of an employer determination.

Refund of penalty if infringement notice withdrawn

(5) The Commonwealth is liable to refund the amount of the penalty specified in an infringement notice if the infringement notice is withdrawn after the penalty has been paid.

161 What happens if the penalty is paid

(1) Any liability of a person for an alleged civil penalty is discharged if:

(a) an infringement notice is given to the person in relation to the alleged civil penalty; and

(b) the penalty is paid in accordance with the infringement notice; and

(2) In addition, proceedings under Division 3 must not be brought against the person for the alleged civil penalty.

162 Effect of this Division on civil proceedings

This Division does not:

(a) require an infringement notice to be given in relation to an alleged civil penalty; or

(b) affect the liability of a person to have proceedings under Division 3 brought against the person for an alleged civil penalty if:

(i) the person does not comply with an infringement notice relating to the contravention; or

(ii) an infringement notice relating to the contravention is not given to the person; or

(iii) an infringement notice relating to the contravention is given to the person and later withdrawn; or

(c) limit the discretion of the Federal Court or the Federal Circuit Court to determine the amount of a penalty to be imposed on a person who is found in proceedings under Division 3 to have contravened a civil penalty provision.

163 Further provision in relation to infringement notices

The Minister may further provide in relation to infringement notices in the PPL rules.

Part 4‑3—Debt recovery

Division 1—Guide to this Part

164 Guide to this Part

This Part provides for debts in relation to the paid parental leave scheme, and for the recovery of debts owing to the Commonwealth.

Division 2 provides for the main debts recoverable by the Commonwealth under this Act, as follows:

(a) overpayments or mistaken payments of parental leave pay or dad and partner pay;

(b) PPL funding amounts for a person that are not paid to the person as parental leave pay;

Division 3 allows an employee to recover, as a debt, parental leave pay due from his or her employer.

Division 4 deals with the procedure for raising a debt that is recoverable by the Commonwealth under this Act, and charging interest on the debt.

Division 5 deals with how the Commonwealth can recover debts.

Division 6 allows the Secretary to write off debts. Even if a debt is written off, it can be later recovered if circumstances change.

Division 7 allows the Secretary to waive debts in various circumstances.

Division 7A deals with when a departure prohibition order, prohibiting a person from departing from Australia for a foreign country, can be made if the person has a debt due to the Commonwealth under this Act.

Division 8 provides that debts under this Act apply in relation to matters inside and outside Australia, and to all persons irrespective of nationality or citizenship.

Division 2—Main debts recoverable under this Act

165 Debts due to the Commonwealth

If an amount has been paid by way of parental leave pay, a PPL funding amount or dad and partner pay, the amount (or an amount equivalent to the amount) is a debt due to the Commonwealth only to the extent expressly provided for under:

(a) this Act; or

(b) the Data‑matching Program (Assistance and Tax) Act 1990.

Note: The main debts due to the Commonwealth under this Act are provided for in this Division. Other debts due to the Commonwealth are provided for in the following provisions:

(a) section 176 (which deals with interest);

166 Parental leave pay instalment debts—instalments paid by employer

(1) This section applies if:

(a) the total of amounts paid to a person (the first person) by way of PPL funding amounts in relation to instalments for another person for a child exceeds (by the PPL funding excess) the total of amounts payable to the first person as PPL funding amounts in relation to those instalments; and

(b) the first person pays an amount (the employer payment) to, or in relation to, the other person for the child by way of an instalment; and

(c) the total of employer payments paid for the child exceeds (by the instalment excess) the total of amounts that are payable by the first person to, or in relation to, the other person for the child as instalments under Division 2 of Part 3‑2 (which deals with the payment of instalments by employers).

Note: Instalments may stop being payable with retrospective effect if a payability determination that parental leave is payable to the other person for the child is set aside or varied after the instalments are paid.

(2) An amount equal to the lesser of the PPL funding excess and the instalment excess is a debt due to the Commonwealth by the other person.

Example: If no amounts are payable by the first person to, or in relation to, the other person for a child as instalments, the amount of the instalment excess is the total amount of the employer payments.

(3) The debt under subsection (2) arises:

(a) if the other person has a PPL period for the child—immediately after the end of the person’s PPL period; or

(b) otherwise—when subsection (1) starts to apply in relation to an employer payment.

Note 1: The other person does not have a PPL period for the child if a payability determination that parental leave pay is payable to the other person for the child has not been made, or has been set aside. In such a case, a debt will arise as soon as there is an instalment excess.

Note 2: This section may apply to overpayments by way of instalments or amounts that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error, the setting aside or variation of a payability determination or payments following a stay order under subsection 41(2) of the AAT Act.

167 Parental leave pay instalment debts—instalments paid by Secretary

(1) This section applies if:

(a) the Secretary pays an amount (the Secretary payment) to, or in relation to, a person for a child by way of an instalment; and

(b) the total of Secretary payments paid for the child exceeds the total of amounts that are payable to, or in relation to, the person for the child as instalments under Part 3‑3 (which deals with the payment of instalments by the Secretary).

Note: Instalments may stop being payable with retrospective effect if the payability determination is set aside or varied after the instalments are paid.

(2) An amount equal to the amount of the excess is a debt due to the Commonwealth by the person.

Example: If no amounts are payable to, or in relation to, a person for a child as instalments, the amount of the excess is the total amount of the Secretary payments.

(3) The debt under subsection (2) arises:

(a) if the person has a PPL period for the child—immediately after the end of the person’s PPL period; or

(b) otherwise—when subsection (1) starts to apply in relation to a Secretary payment.

Note 1: The person does not have a PPL period for the child if a payability determination that parental leave pay is payable to the person for the child has not been made, or has been set aside. In such a case, a debt will arise as soon as there is an excess as referred to in subsection (1).

168 PPL funding amount debts—amounts not paid as parental leave pay instalments

(1) This section applies if the total of amounts paid to a person (the first person) by way of PPL funding amounts in relation to instalments for another person for a child exceeds the total of amounts paid by the first person to, or in relation to, the other person by way of such instalments for the child.

(2) The amount of the excess is a debt due to the Commonwealth by the first person.

Example: If the first person has not paid any amounts by way of instalments to the other person, the amount of the excess is the total of amounts paid to the first person by way of PPL funding amounts in relation to instalments for the other person for the child.

(3) The debt under subsection (2) arises:

(a) if the other person has a PPL period for the child—at the earlier of the following times:

(i) when the Secretary pays one or more of the instalments to, or in relation to, the other person under section 85, 86 or 87 (which deal with the payment of arrears);

(ii) immediately after the end of the other person’s PPL period; or

(b) otherwise—when subsection (1) starts to apply in relation to an amount paid to the first person.

Note 1: The other person does not have a PPL period for the child if a payability determination that parental leave pay is payable to the person for the child has not been made, or has been set aside. In such a case, a debt will arise as soon as there is an excess referred to in subsection (1).

Note 2: This section may apply to overpayments by way of PPL funding amounts or amounts that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error or the revocation or setting aside of an employer determination.

168A Dad and partner pay debts

(1) This section applies if:

(a) the Secretary pays an amount (the Secretary payment) to, or in relation to, a person for a child by way of dad and partner pay; and

(b) the total of Secretary payments paid for the child exceeds the total of amounts that are payable to, or in relation to, the person for the child under Part 3A‑5 (which deals with the payment of dad and partner pay by the Secretary).

Note: Dad and partner pay may cease to be payable after it has already been paid, if the payability determination is later set aside or varied.

(2) An amount equal to the amount of the excess is a debt due to the Commonwealth by the person.

Example: If no dad and partner pay is payable to, or in relation to, a person for the child, the amount of the excess is the total amount of the Secretary payments.

(3) The debt under subsection (2) arises:

(a) if the person has a DAPP period for the child—immediately after the end of the person’s DAPP period; or

(b) otherwise—when subsection (1) starts to apply in relation to a Secretary payment.

Note 1: The person does not have a DAPP period for the child if a payability determination that dad and partner pay is payable to the person for the child has not been made, or has been set aside. In such a case, a debt will arise as soon as there is an excess as referred to in subsection (1).

Note 2: This section may apply to overpayments by way of payments that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error, the setting aside or variation of a payability determination or payments following a stay order under subsection 41(2) of the AAT Act.

169 Wrong person receives parental leave pay instalment, PPL funding amount or dad and partner pay

(1) This section applies if:

(a) an instalment, a PPL funding amount or dad and partner pay (the PPL payment) is paid by the Secretary or an employer; and

(b) a person (the wrong recipient) other than the person (the right recipient) to whom the PPL payment is payable receives the PPL payment (or a part of it); and

(c) the wrong recipient is not authorised by the right recipient, or authorised under law, to receive the PPL payment (or that part).

(2) An amount equal to the PPL payment (or that part of the PPL payment), is a debt due by the wrong recipient to:

(a) if the PPL payment is made by the Secretary—the Commonwealth; or

(b) if the PPL payment is made by an employer—the employer.

Note 1: Because the PPL payment (or part) has not been properly paid to the right recipient, the Secretary or the employer must repay to the right recipient the amount of the PPL payment that ought to have been paid to the right recipient in the first place.

Note 2: The Secretary may recover a debt due to the Commonwealth under this section from an ADI (see section 192).

170 Joint and several liability for debts arising because of false and misleading statements

A person (the recipient) and another person are jointly and severally liable to pay a debt if:

(a) the recipient is liable under this Division to repay an amount (the unauthorised amount) paid to, or in relation to, the recipient (or an amount equal to such an amount); and

(b) the unauthorised amount was paid because the recipient contravened Part 7.4 of the Criminal Code (which deals with false and misleading statements); and

(i) that is taken to have been committed in relation to that contravention because of section 11.2 or 11.2A of the Criminal Code (which deal with complicity, common purpose and joint commission); or

(ii) in relation to that contravention against section 11.4 or 11.5 of the Criminal Code (which deal with incitement and conspiracy).

171 Debts under the Data‑matching Program (Assistance and Tax) Act 1990

An amount is recoverable by the Commonwealth if:

(a) the amount has been paid to, or in relation to, a person by way of an instalment or by way of dad and partner pay; and

(b) the amount is a debt due to the Commonwealth under subsection 11(6) of the Data‑matching Program (Assistance and Tax) Act 1990.

Division 3—Parental leave pay recoverable by employees from employers

172 PPL funding amount debts—debts owing by employers to employees

(1) This section applies if:

(a) a PPL funding amount is paid to an employer in relation to an instalment that is payable to a person; and

(b) the instalment, or part of the instalment, is not paid to, or in relation to, the person in accordance with the following provisions:

(i) section 70 (which deals with unauthorised deductions from instalments);

(ii) Division 2 of Part 3‑2 (which deals with the payment of instalments by employers).

(2) So much of the instalment as is not paid to, or in relation to, the person in accordance with section 70 and Division 2 of Part 3‑2, or as arrears under section 85, 86 or 87, is a debt due to the person by the employer, and is recoverable by the person in a court of competent jurisdiction.

Division 4—Debt notices and interest on debts

173 Notices in respect of debt

(1) If a debt due to the Commonwealth under this Act has not been wholly paid, the Secretary must give the debtor a notice stating the following:

(a) the date the preparation of the notice is completed (the date of the notice);

(b) for a debt under section 168 that relates to a PPL funding amount payable in relation to an instalment (or a debt under this Division in relation to such a debt)—the name of the person to whom, or in relation to whom, the instalment is payable;

(c) the reason the debt was incurred, including a brief explanation of the circumstances that led to the debt being incurred;

(d) the period to which the debt relates;

(e) the outstanding amount of the debt at the date of the notice;

(f) the day on which the outstanding amount is due and payable;

(fa) the effect of sections 174 and 175;

(g) that a range of options is available for repayment of the debt;

(h) the contact details for inquiries concerning the debt.

Due date

(2) The outstanding amount of the debt is due and payable on the 28th day after the date of the notice.

Multiple notices

(3) The Secretary may give more than one notice under subsection (1) in relation to a person and a debt of the person.

174 Interest charge—no debt payment arrangement in effect

(1) If:

(a) a notice is given to a person under subsection 173(1) in relation to a debt; and

(b) an amount (the unpaid amount) of the debt remains unpaid at the end of the day (the due day) on which the debt is due to be paid; and

then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).

Note: For exemptions, see sections 178 and 179.

(2) The period starts at the beginning of the day after the due day and ends at the end of the earlier of the following days:

(a) the last day at the end of which any of the following remains unpaid:

(i) the unpaid amount;

(ii) interest charge on any of the unpaid amount;

(b) the day before the first day, after the due day, on which the person makes a payment under a debt payment arrangement in relation to the debt.

(3) The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:

(a) the unpaid amount;

(b) the interest charge from previous days.

Note 1: For interest charge rate see section 177.

Note 2: The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.

175 Interest charge—failure to comply with or termination of debt payment arrangement

(1) If:

(a) a debt payment arrangement is in effect in relation to a person and a debt; and

(b) the person fails to make a payment under the arrangement;

then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).

Note: For exemptions, see sections 178 and 179.

(2) The period starts at the beginning of the day after the day (the due day) on which the payment was required to be made under the arrangement and ends at the end of the earliest of the following days:

(a) the last day at the end of which any of the following remains unpaid:

(i) the outstanding amount of the debt;

(ii) interest charge on any of the outstanding amount of the debt;

(b) the day before the first day, after the due day, on which the person has paid all the payments that have so far become due and payable under the arrangement;

(a) the outstanding amount of the debt;

(b) the interest charge from previous days.

Note 1: For interest charge rate see section 177.

Note 2: The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.

Debt payment arrangement is terminated

(4) If:

(a) a debt payment arrangement is in effect in relation to a person and a debt; and

(b) the arrangement is then terminated under section 190 on a day (the termination day);

then:

(i) the outstanding amount of the debt;

(ii) interest charge on any of the outstanding amount of the debt; and

(d) if, at the end of that 14th day, any of those amounts remains unpaid, the person is liable to pay, by way of penalty, interest charge, worked out under subsection (6), for each day in the period described in subsection (5).

Note: For exemptions, see sections 178 and 179.

(5) The period starts at the beginning of the day after that 14th day and ends at the end of the earlier of the following days:

(a) the last day at the end of which any of the following remains unpaid:

(i) the outstanding amount of the debt;

(ii) interest charge on any of the outstanding amount of the debt;

(b) the day before the first day, after that 14th day, on which the person makes a payment under another debt payment arrangement in relation to the debt.

(6) The interest charge for a day in the period described in subsection (5) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:

(a) the outstanding amount of the debt;

(b) the interest charge from previous days.

Note 1: For interest charge rate see section 177.

Note 2: The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.

176 Other rules for interest charge

When interest charge is due and payable

(1) The interest charge under section 174 or 175 for a day is due and payable to the Commonwealth at the end of that day.

Interest charge is a debt

(2) The interest charge under section 174 or 175 for a day is a debt due to the Commonwealth by the person.

Provisions that do not apply to interest charge debt

(3) Subsection 173(1) does not apply in relation to the debt referred to in subsection (2) of this section.

177 What is the interest charge rate?

(1) The interest charge rate for a day is the rate worked out by adding 7 percentage points to the base interest rate for that day, and dividing that total by the number of days in the calendar year.

(2) The base interest rate for a day depends on which quarter of the year the day is in. For each day in a quarter in column 1 of the table, it is the monthly average yield of 90‑day Bank Accepted Bills published by the Reserve Bank of Australia for the month in column 2 of the table.

Base interest rate
Item	Column 1 For days in this quarter:	Column 2 the monthly average yield of 90‑day Bank Accepted Bills for this month applies:
1	1 January to 31 March	the preceding November
2	1 April to 30 June	the preceding February
3	1 July to 30 September	the preceding May
4	1 October to 31 December	the preceding August

(3) If the monthly average yield of 90‑day Bank Accepted Bills for a particular month in column 2 of the table in subsection (2) is not published by the Reserve Bank of Australia before the beginning of the relevant quarter, assume that it is the same as the last monthly average yield of 90‑day Bank Accepted Bills published by the Reserve Bank of Australia before that month.

(4) The base interest rate must be rounded to the second decimal place (rounding .005 upwards).

178 Exemption from interest charge—general

A person is not liable to pay interest charge under section 174 or 175 if on the day before the start of the period in respect of which the person would otherwise have been liable to pay that charge:

(a) the person is receiving instalments of family tax benefit (within the meaning of the A New Tax System (Family Assistance) Act 1999); or

(b) the person is receiving a social security payment (within the meaning of the Social Security Act 1991); or

(c) the person is receiving a payment of pension, veteran payment or allowance under the Veterans’ Entitlements Act 1986; or

(d) the person is receiving instalments under the ABSTUDY scheme (also known as the Aboriginal Study Assistance Scheme) that includes an amount identified as living allowance; or

(e) the person is receiving instalments under the Assistance for Isolated Children Scheme; or

(f) the circumstances prescribed by the PPL rules apply in relation to the person.

179 Exemption from interest charge—Secretary’s determination

(1) The Secretary may determine that interest charge is not payable, or is not payable in respect of a particular period, by a person on the outstanding amount of a debt.

(2) The Secretary may make a determination under this section in circumstances that include (but are not limited to) the Secretary being satisfied that the person has a reasonable excuse for:

(a) failing to enter into a debt payment arrangement to pay the outstanding amount of the debt; or

(b) having entered an arrangement, failing to make a payment in accordance with that arrangement.

(3) The determination may relate to a period before, or to a period that includes a period before, the making of the determination.

(4) The determination may be expressed to be subject to the person complying with one or more specified conditions.

(5) If the determination is expressed to be subject to the person complying with one or more specified conditions, the Secretary must give written notice of the determination to the person as soon as practicable after the determination is made.

(6) If:

(a) the determination is expressed to be subject to the person complying with one or more specified conditions; and

(b) the person contravenes a condition or conditions without reasonable excuse;

the determination ceases to have effect from and including the day on which the contravention or the earliest of the contraventions occurred.

(7) The Secretary may cancel or vary the determination by written notice given to the person.

180 Guidelines on interest charge provisions

The PPL rules may prescribe guidelines for the operation of the provisions of this Division dealing with interest charge.

Division 5—How the Commonwealth can recover debts

181 Debts to which Division 5 applies

This Division applies to debts due to the Commonwealth under this Act.

Note: See the following provisions:

(a) Division 2 (which provides for the main debts recoverable under this Act);

(b) sections 176 and 186 (which provide for debts relating to interest and garnishee notices).

182 How to recover debts

A debt is recoverable by the Commonwealth from a person by one or more of the following means:

(a) legal proceedings (see section 183);

(b) garnishee notice (see section 184);

(d) deductions from instalments payable to another person for the same child (see section 191);

(e) recovery from an ADI, if the debt arises from a payment to the wrong person, or the amount is to be recovered from a deceased estate (see section 192);

(f) deduction or setting off in relation to a payment to which the debtor (or another person) is entitled under another Act, but only if the other Act expressly provides for recovery of the debt by such deduction or setting off.

Note: A debt can be recovered by deduction or set off in relation to other payments as follows:

(a) sections 84 and 92 of the A New Tax System (Family Assistance) (Administration) Act 1999 (which deal with family tax benefit);

(b) sections 84A and 92A of the A New Tax System (Family Assistance) (Administration) Act 1999 (which deal with family assistance);

(d) section 205 of the Veterans’ Entitlements Act 1986 (which deals with pensions, allowances and other payments).

183 Legal proceedings

A debt is recoverable by the Commonwealth in a court of competent jurisdiction.

184 Garnishee notices—general

Issue of garnishee notice

(1) The Secretary may, by written notice (the garnishee notice) to any of the following people (the garnishee), require the garnishee to pay the Commonwealth the amount covered by subsection (2) in relation to a debt (the original debt) that is recoverable by the Commonwealth under this Act from a person (the original debtor):

(a) a person by whom any money is due or accruing, or may become due, to the original debtor;

(b) a person who holds or may later hold money for or on account of the original debtor;

(d) a person who has authority from some other person to pay money to the original debtor.

Note: Subsection (3) provides that conditions on the payment of money due to the original debtor are to be ignored for the purposes of this section.

(2) The amount covered by this subsection is:

(a) an amount stated in the garnishee notice, not exceeding the amount of the original debt or the amount of the money referred to in paragraph (1)(a), (b), (c) or (d); or

(b) an amount stated in the garnishee notice out of each payment that the garnishee becomes liable from time to time to make to the original debtor, until the original debt is satisfied; or

(c) the amount of a percentage stated in the garnishee notice of each payment that the garnishee becomes liable from time to time to make to the original debtor, until the original debt is satisfied.

(3) For the purposes of this section, if, apart from this subsection, money is not due or repayable on demand to the original debtor unless a condition is fulfilled, the money is taken to be due or repayable on demand, even though the condition has not been fulfilled.

Time for compliance

(4) The time for making a payment in compliance with a garnishee notice is the time stated in the notice, but not before:

(a) the money concerned becomes due or is held; or

(b) the end of 14 days after the notice is given.

(5) The Secretary must give a copy of a garnishee notice to the original debtor.

185 Garnishee notices—amounts paid in compliance

(1) A person who makes a payment to the Commonwealth in compliance with a garnishee notice is taken to have made the payment under the authority of the original debtor and of any other person concerned.

(2) If, after a garnishee notice is given to a garnishee, an amount is paid by another person in reduction or in satisfaction of the original debt:

(a) the Secretary must notify the garnishee accordingly; and

(b) the amount of the unpaid debt stated in the garnishee notice is taken to be reduced by an amount equal to the amount paid.

186 Garnishee notices—debt for failure to comply with notice

(1) This section applies if a garnishee fails to comply with the garnishee notice to the extent that the garnishee is capable of complying with it.

(2) The amount of the debt outstanding (worked out under subsection (3)) is a debt due to the Commonwealth by the garnishee.

(3) The amount of the debt outstanding is the amount equal to the lesser of the following amounts:

(a) as much of the amount required by the garnishee notice to be paid by the garnishee as the garnishee was able to pay;

(b) as much of the debt due by the original debtor when the notice was given as remains due from time to time.

(4) If the Commonwealth recovers the whole or part of the debt due by the garnishee under subsection (2), or by the original debtor, then:

(a) both debts are reduced by the amount that the Commonwealth has so recovered; and

(b) the amount of the unpaid debt stated in the garnishee notice is taken to be reduced by the amount so recovered.

(5) This section applies to an amount despite any law of a State or a Territory (however expressed) under which the amount is inalienable.

187 Garnishee notices—offence for non‑compliance

A person commits an offence if:

(a) the person is a garnishee; and

(b) the person is given a garnishee notice; and

Penalty: Imprisonment for 12 months.

188 Garnishee notices—relationship with other laws

Sections 184 to 187 apply to an amount of money despite any law of a State or a Territory (however expressed) under which the amount is inalienable.

190 Payment of debts by arrangement

(1) The Secretary may, on behalf of the Commonwealth, enter into an arrangement (a debt payment arrangement) with a person who owes a debt, under which the person is to pay the debt, or the outstanding amount of the debt, by part payments in accordance with the terms of the arrangement.

(1A) If a person is required to make a payment under a debt payment arrangement before the end of a particular day, the person must make that payment before the end of that day.

(2) A debt payment arrangement operates, or is taken to have operated, on and after the day stated in the arrangement as the day on which the arrangement starts (whether that day is the day on which the arrangement is entered into or an earlier or later day).

(3) If a debt payment arrangement does not state a day as referred to in subsection (2), it operates on and after the day on which it is entered into.

(4) The Secretary may terminate or alter a debt payment arrangement:

(a) at the debtor’s request; or

(b) after giving 28 days’ notice to the debtor of the proposed termination or alteration; or

(c) without notice, if the Secretary is satisfied that the debtor has failed to disclose material information about the debtor’s true capacity to repay the debt.

191 Deductions from instalments payable to another person

(1) This section applies if an amount is deducted under subsection 67(2) from an instalment payable to a secondary claimant for a child, if the deduction is for the purposes of the recovery of a debt due to the Commonwealth by the primary claimant in relation to the same child.

(2) The debt due to the Commonwealth by the primary claimant is reduced by an amount equal to the amount of the deduction.

192 Recovery from an ADI

Payment into wrong account or payment for deceased person

(1) This section applies if:

(a) an instalment, a PPL funding amount or dad and partner pay is paid to an ADI for the credit of an account kept with the ADI in the name of a person or persons; and

(b) a debt that is recoverable by the Commonwealth under this Act arises (or such debts arise) because either:

(i) the payment was intended to be paid to someone other than the person, or those persons; or

(ii) the payment was intended to be paid to the person, or one of those persons, but the person for whom the payment was intended dies before the payment was made.

Notice to ADI requiring repayment and to deceased estate

(2) The Secretary may give a written notice to the ADI setting out the relevant matters referred to in paragraphs (1)(a) and (b) and requiring the ADI to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:

(a) the amount of the instalment, PPL funding amount or dad and partner pay, as stated in the notice;

(b) the amount standing to the credit of the account when the notice is given to the ADI.

(3) If the notice relates to a payment to a person who has died, as soon as possible after issuing the notice, the Secretary must inform the deceased estate in writing of:

(a) the amount sought to be recovered from the deceased person’s account; and

(b) the reasons for the recovery action.

Offence for contravening notice

(4) A body corporate commits an offence if:

(a) the body is an ADI; and

(b) the body is given a notice under subsection (2); and

Penalty: 300 penalty units.

Amount recovered reduces debt

(5) Any amount recovered by the Commonwealth from an ADI under this section reduces the amount of a debt referred to in paragraph (1)(b).

192A No time limit on debt recovery action

For the purposes of this Part, legal proceedings, or any action under a provision of this Part, for the recovery of a debt may be commenced or taken at any time.

Division 6—Writing off debts

193 When debts can be written off

General

(1) The Secretary may, on behalf of the Commonwealth, decide to write off, for a stated period or otherwise, a debt that is due to the Commonwealth under this Act.

Note: Debts recoverable by the Commonwealth under this Act are provided for by the following provisions:

(a) Division 2 (which provides for the main debts recoverable under this Act);

(b) sections 176 and 186 (which provide for debts relating to interest and garnishee notices).

Write off conditions

(2) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt.

When a debt is irrecoverable

(3) For the purposes of paragraph (2)(a), a debt is taken to be irrecoverable at law if, and only if:

(a) the debt cannot be recovered under Division 5; or

(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

(c) the debtor is discharged from bankruptcy or administration and the debt was incurred before the debtor became bankrupt or entered into administration, and was not incurred by fraud; or

(d) the debtor has died leaving no estate or not enough funds in the debtor’s estate to repay the debt.

When a debtor has capacity to repay by deductions etc.

(4) For the purposes of paragraph (2)(b), a person is taken to have the capacity to repay a debt to which subsection (5) applies, unless recovery by those means would cause the person severe financial hardship.

(5) This subsection applies to a debt if it could be recovered by deduction or setting off in relation to a payment to which the debtor is entitled under another Act.

When write off comes into operation

(6) A decision under subsection (1) to write off a debt comes into operation:

(a) if no day is stated in the decision—on the day the decision is made; or

(b) if a day is stated in the decision—on the stated day (whether that day is before, after or on the day on which the decision is made).

Debt that has been written off may be recovered

(7) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.

Division 7—Waiver of debts

194 Waiver of debts—general

(1) This Division applies to debts that are due to the Commonwealth under this Act.

Note: Debts recoverable by the Commonwealth under this Act are provided for by the following provisions:

(a) Division 2 (which provides for the main debts recoverable under this Act);

(b) sections 176 and 186 (which provide for debts relating to interest and garnishee notices).

(2) The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth’s right to recover the whole or a part of a debt, but only if required or allowed to do so under another provision of this Division.

(3) A decision to waive the right to recover a debt (or a part of a debt) comes into operation:

(a) if no day is stated in the decision—on the day the decision is made; or

(b) if a day is stated in the decision—on the stated day (whether that day is before, after or on the day on which the decision is made).

195 Waiver of debts—administrative error

The Secretary must waive the right to recover so much of a debt as is attributable solely to an administrative error made by the Commonwealth, or an agent of the Commonwealth, if:

(a) the debtor received in good faith the payment or payments that gave rise to that proportion of the debt; and

(b) the debtor would suffer severe financial hardship if it were not waived.

196 Waiver of debts—arising from offence

The Secretary must waive the right to recover so much of a debt as arises from an offence, if:

(a) the debtor is convicted of the offence; and

(b) the court indicated in sentencing the debtor that it imposed a longer custodial sentence on the debtor because he or she was unable or unwilling to pay the debt.

197 Waiver of debts—small debts

(1) The Secretary must waive the right to recover a debt if:

(a) the debt is, or is likely to be, less than $200; and

(b) it is not cost effective for the Commonwealth to take action to recover the debt.

(2) Subsection (1) does not apply if the debt is at least $50 and could be recovered by deduction or setting off in relation to a payment to which the debtor is entitled under another Act.

198 Waiver of debts—settlement of civil actions

Settlement of civil action

(1) If the Commonwealth has agreed to settle a civil action against a debtor for recovery of a debt for less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

Settlement of proceedings before the AAT

(2) If the Secretary has agreed to settle proceedings before the AAT relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

Note: See section 263 (which deals with settlement of proceedings before the AAT).

Waiver where at least 80% of debt recovered and debtor cannot pay more

(3) If:

(a) the Commonwealth has recovered at least 80% of the original value of a debt from a debtor; and

(b) the Commonwealth and the debtor agree that the recovery is in full satisfaction for the whole of the debt; and

the Secretary must waive the right to recover the remaining 20% or less of the value of the original debt.

Agreement for part payment in satisfaction of outstanding debt

(4) If the Secretary and a debtor agree that the debtor’s debt will be fully satisfied if the debtor pays the Commonwealth an agreed amount less than the amount (the unpaid amount) of the debt outstanding when the agreement is made, the Secretary must, if the agreed amount is paid, waive the right to recover the difference between the unpaid amount and the agreed amount.

Limits on agreement to accept part payment in satisfaction of outstanding debt

(5) The Secretary must not make an agreement described in subsection (4) unless the Secretary is satisfied that the agreed amount is at least the present value of the unpaid amount if it is repaid in instalments of amounts, and at times, determined by the Secretary.

Working out present value of unpaid amount

(6) For the purposes of subsection (5), the present value of the unpaid amount is the amount worked out in accordance with the following formula:

where:

annual repayment is the amount of the debt that the Secretary believes would be recovered under Division 5 in a year if subsection (4) did not apply in relation to the debt.

rp (short for repayment period) is the number of years needed to repay the unpaid amount if repayments equal to the annual repayment were made each year.

settlement interest is an annual rate of interest prescribed for the purposes of this subsection by the PPL rules.

199 Waiver of debts—special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false or misleading statement or representation; or

(ii) failing or omitting to comply with a provision of this Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt (or part); and

200 Waiver of debts—determined classes

(1) The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth’s right to recover debts (or parts of debts) that are included in a class of debts determined by the Minister by legislative instrument.

(2) A determination under subsection (1) may state:

(a) conditions to be met before the Secretary exercises the power to waive the debts (or parts); and

(b) limits on the amounts of the debts to be waived.

(3) A decision under subsection (1) comes into operation:

(a) if no day is stated in the decision—on the day the decision is made; or

(b) if a day is stated in the decision—on the stated day (whether before, after or on the day the decision is made).

Division 7A—Departure prohibition orders

Subdivision A—Secretary may make departure prohibition orders

200A Secretary may make departure prohibition orders

(1) The Secretary may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:

(a) the person has one or more debts to the Commonwealth under this Act; and

(b) there are not arrangements satisfactory to the Secretary for the one or more debts to be wholly paid; and

(c) the Secretary believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:

(i) having wholly paid the one or more debts; or

(ii) there being arrangements satisfactory to the Secretary for the one or more debts to be wholly paid.

Matters to be taken into account in making order

(2) Before making an order under this section, the Secretary must have regard to the following matters:

(a) the capacity of the person to pay the one or more debts;

(b) whether any action has been taken to recover any such debt, and the outcome of the recovery action;

(d) such other matters as the Secretary considers appropriate.

Form of order

(3) A departure prohibition order must be in a form approved by the Secretary.

Debts under section 168 disregarded

(4) A debt that a person has under section 168 is to be disregarded for the purposes of this section.

Subdivision B—Departure from Australia of debtors prohibited

200B Departure from Australia of debtors prohibited

A person must not depart from Australia for a foreign country if:

(a) a departure prohibition order in respect of the person is in force, and the person knows that the order is in force, or is reckless as to whether the order is in force; and

(b) the person’s departure is not authorised by a departure authorisation certificate, and the person knows that the departure is not authorised by such a certificate, or is reckless as to whether the departure is authorised by such a certificate.

Penalty: Imprisonment for 12 months.

Subdivision C—Other rules for departure prohibition orders

200C Notification requirements for departure prohibition orders

(1) This section applies if the Secretary makes a departure prohibition order in respect of a person.

Notifying person of order

(2) The Secretary must notify the person that the order has been made.

(3) The notice must be in a form approved by the Secretary and must be given as soon as practicable after making the order.

Notifying other persons of order

(4) Unless the Secretary is satisfied that the person is an Australian citizen, the Secretary must give a copy of the order, and information likely to facilitate identification of the person, to the Secretary of the Department administered by the Minister administering the Migration Act 1958, for the purposes of administering that Act.

(5) The Secretary must also give a copy of the order, and information likely to facilitate identification of the person for the purposes of this Division, to such other persons as the Secretary considers appropriate in the circumstances, being persons prescribed by the PPL rules.

(6) The Secretary must give a copy of the order or information under subsection (4) or (5) as soon as practicable after making the order.

200D Operation of departure prohibition order

(1) A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court.

Note: Subdivision E deals with appeals to the Federal Court or the Federal Circuit Court against the making of departure prohibition orders.

(2) However, a departure prohibition order in respect of a person is not in force during any period when a deportation order in respect of the person is in force under the Migration Act 1958.

200E Revocation and variation of departure prohibition orders

(1) The Secretary must revoke a departure prohibition order in respect of a person if:

(a) the person no longer has any debts to the Commonwealth under this Act; or

(b) there are arrangements satisfactory to the Secretary for the one or more debts the person has to the Commonwealth under this Act to be wholly paid; or

(c) the Secretary is satisfied that the one or more debts the person has to the Commonwealth under this Act are completely irrecoverable.

(2) The Secretary may revoke or vary a departure prohibition order in respect of a person if the Secretary considers it desirable to do so.

(3) A revocation or variation, under this section, of a departure prohibition order may be:

(a) on application by the person in a form approved by the Secretary; or

(b) on the Secretary’s own initiative.

Debts under section 168 disregarded

(4) A debt that a person has under section 168 is to be disregarded for the purposes of this section.

200F Notification requirements for revocations and variations

(1) If the Secretary revokes or varies a departure prohibition order in respect of a person, the Secretary must give notice of the revocation or variation to:

(a) the person; and

(b) each person to whom a copy of the departure prohibition order was given under subsection 200C(4) or (5).

(2) If:

(a) a person makes an application under paragraph 200E(3)(a) for the revocation or variation of a departure prohibition order; and

(b) the Secretary refuses to revoke or vary the order;

the Secretary must give notice of the refusal to the person.

(3) A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.

Subdivision D—Departure authorisation certificates

200G Application for departure authorisation certificate

(1) A person in respect of whom a departure prohibition order is in force may apply for a certificate (a departure authorisation certificate) authorising the person to depart from Australia for a foreign country.

(2) The application must be in a form approved by the Secretary.

200H When Secretary must issue departure authorisation certificate

(1) This section applies if a person makes an application under section 200G for a departure authorisation certificate.

(2) The Secretary must issue the departure authorisation certificate if the Secretary is satisfied:

(a) that, if the certificate is issued:

(i) it is likely that the person will depart from Australia and return to Australia within a period that the Secretary considers appropriate; and

(ii) it is likely that, within a period that the Secretary considers appropriate, the Secretary will be required by subsection 200E(1) to revoke the departure prohibition order in respect of the person; and

(b) that it is not necessary for the person to give security under section 200J for the person’s return to Australia.

(3) If the Secretary is not satisfied as mentioned in subsection (2), the Secretary must issue the departure authorisation certificate if:

(a) the person has given security under section 200J for the person’s return to Australia; or

(b) if the person is unable to give such security, the Secretary is satisfied:

(i) that the certificate should be issued on humanitarian grounds; or

(ii) that refusing to issue the certificate will be detrimental to Australia’s interests.

200J Security for person’s return to Australia

(1) A person may give such security as the Secretary considers appropriate by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed by the person and the Secretary and is specified in the departure authorisation certificate.

(2) The Secretary may substitute a later day for the day mentioned in subsection (1):

(a) on application by the person in a form approved by the Secretary; or

(b) on the Secretary’s own initiative.

(3) The Secretary may refuse an application by a person to substitute a later day if:

(a) the person refuses to increase the value of the security already given to a level that the Secretary considers appropriate; or

(b) the person refuses to give such further security as the Secretary considers appropriate; or

200K What departure authorisation certificate must authorise

(1) A departure authorisation certificate in respect of a person must authorise the departure of the person on or before the seventh day after a day specified in the certificate.

(2) The day specified in the certificate must be a day that is after the day on which the certificate is issued, but not more than 7 days after that day.

200L Notification requirements for departure authorisation certificates

(1) If the Secretary issues a departure authorisation certificate in respect of a person, the Secretary must, as soon as practicable, give a copy of the certificate to:

(a) the person; and

(b) each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 200C(4) or (5).

(2) If:

(a) a person makes an application under section 200G for a departure authorisation certificate; and

(b) the Secretary refuses to issue the certificate;

the Secretary must give notice of the refusal to the person.

(3) The notice must be in a form approved by the Secretary and must be given as soon as practicable after the refusal.

200M Notification requirements for substituted days

(1) If, under section 200J, the Secretary substitutes a later day for a person’s return to Australia, the Secretary must give notice of that decision to:

(a) the person; and

(b) each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 200C(4) or (5).

(2) If:

(a) a person makes an application under paragraph 200J(2)(a) to substitute a later day for the person’s return to Australia; and

(b) the Secretary refuses the application;

the Secretary must give notice of the refusal to the person.

(3) A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.

Subdivision E—Appeals and review in relation to departure prohibition orders and departure authorisation certificates

200N Appeals to courts against making of departure prohibition orders

(1) A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court or the Federal Circuit Court against the making of the order.

(2) This section has effect subject to Chapter III of the Constitution.

200P Jurisdiction of courts

The jurisdiction of a court under section 200N must be exercised by a single Judge.

200Q Orders of court on appeal

A court hearing an appeal under section 200N against the making of a departure prohibition order may, in its discretion:

(a) make an order setting aside the order; or

(b) dismiss the appeal.

200R Review of decisions

(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary under section 200E, 200H or 200J.

(2) Despite any provision of Chapter 5, that Chapter does not apply in relation to any decision of the Secretary under this Division.

Subdivision F—Enforcement

200S Powers of officers of Customs and members of the Australian Federal Police

(1) This section applies if an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, believes on reasonable grounds that:

(a) a person is about to depart from Australia for a foreign country; and

(b) a departure prohibition order in respect of the person is in force; and

(2) The officer or member may:

(a) take such steps as are reasonably necessary to prevent the person’s departure, including, but not limited to, steps to prevent the person going on board, or to remove the person from, a vessel or aircraft in which the officer or member believes on reasonable grounds the departure will take place; and

(b) require the person to answer questions or produce documents to the officer or member for the purposes of working out whether:

(i) a departure prohibition order in respect of the person is in force; and

(ii) if such an order in respect of the person is in force—whether the person’s departure is authorised by a departure authorisation certificate.

(3) A person commits an offence if:

(a) the person is subject to a requirement under paragraph (2)(b); and

(b) the person refuses or fails to comply with the requirement.

Penalty: 30 penalty units.

(4) Subsection (3) does not apply if the person answers the question or produces the document to the extent that the person is capable of answering the question or producing the document.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (4): see subsection 13.3(3) of the Criminal Code.

200T Privilege against self‑incrimination

(1) An individual is not excused from answering a question, or producing a document, under paragraph 200S(2)(b) on the ground that the answer to the question or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

(2) However:

(a) the answer given or document produced; and

(b) answering the question or producing the document; and

(c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question or producing the document;

are not admissible in evidence against the individual in any criminal proceedings, other than proceedings under section 137.1 or 137.2 of the Criminal Code in relation to answering the question or producing the document.

200U Production of authority to depart

(1) If:

(a) a departure prohibition order in respect of a person is in force; and

(b) the person is about to depart from Australia for a foreign country; and

an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, may request the person to give a copy of the certificate to the officer or member for inspection.

(2) A person commits an offence of strict liability if:

(a) an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, has made a request of the person under subsection (1); and

(b) the person refuses or fails to comply with the request.

Penalty for contravention of this subsection: 5 penalty units.

Subdivision G—Interpretation

200V Interpretation—departure from Australia for foreign country

A reference in this Division to the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia.

200W Meaning of Australia

For the purposes of this Division, Australia, when used in a geographical sense, includes the external Territories.

Division 8—Miscellaneous

201 Overseas application of debts

The operation of a provision creating a debt under this Part (except for section 171) extends to:

(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

(b) all persons, irrespective of their nationality or citizenship.

Note: Section 171 provides for debts under the Data‑matching Program (Assistance and Tax) Act 1990.

201A Debts arising from civil penalty orders

This Part does not apply to a debt arising from a civil penalty order.

Chapter 5—Review of decisions

Note: This Chapter does not apply in relation to any decision of the Secretary under Division 7A of Part 4‑3 (about departure prohibition orders).

Part 5‑1—Internal review of decisions

Division 1—Guide to this Part

202 Guide to this Part

This Part is about the internal review of decisions of officers under this Act.

Division 2 sets out 3 kinds of internal review of those decisions.

The first kind of review is where the Secretary, on his or her own initiative, reviews those decisions.

The second kind of review is where a person whose interests are affected by certain decisions (which are “claimant decisions”) applies for internal review of the decision.

The third kind of review is where an employer applies for internal review of certain decisions that affect the employer (those decisions are “employer determination decisions” and “employer funding amount decisions”). Employer determination decisions can only be reviewed on application, and not on the Secretary’s own initiative.

Division 2—Internal review of decisions

203 Internal review—own‑initiative review by Secretary

(1) The Secretary may, on his or her own initiative, review a decision of an officer under this Act if the Secretary is satisfied that there is enough reason to review the decision.

(2) However, the Secretary must not, on his or her own initiative, review a decision of an officer under section 101 to make an employer determination.

Note 1: An employer may apply for review of a decision to make an employer determination (see section 207).

Note 2: For revocation of employer determinations, see section 108.

(3) The Secretary may review a decision:

(a) whether or not any person has applied for review of the decision; and

(b) even though an application has been made to the AAT for review of the decision.

(4) On review of a decision, the Secretary may:

(a) affirm the decision; or

(b) vary the decision; or

(5) A reference in subsection (1) to a decision of an officer under this Act includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.

204 Internal review—own‑initiative review and tribunal review

The Secretary must give the Registrar of the AAT written notice of a decision under subsection 203(4) if, when the Secretary makes the decision, an application has been made to the AAT for review in relation to the decision that was reviewed by the Secretary.

205 Internal review—review following application

(1) If an application is made under section 206, 207 or 208 for review of a decision, the Secretary or an authorised review officer must:

(a) review the decision; and

(b) do one of the following:

(i) affirm the decision;

(ii) vary the decision;

(iii) set the decision aside and substitute a new decision.

(2) However, an authorised review officer must not, under subsection (1), review a decision relating to the exercise of the Secretary’s power under section 263 (settlement of proceedings before the AAT).

206 Internal review—application for review of claimant decision

Claimant decisions

(1) This section applies to a decision of an officer under this Act, unless the decision is:

(a) a decision under Part 3‑2 (which deals with the payment of instalments by employer); or

(b) a decision under Part 3‑5 (which deals with employer determinations); or

(d) a decision under the PPL rules, if the PPL rules state that this section does not apply to the decision; or

(e) a decision under the regulations, if the regulations state that this section does not apply to the decision.

(2) A reference in subsection (1) to a decision of an officer under this Act includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.

(3) A decision to which this section applies is a claimant decision.

Application for review

(4) A person whose interests are affected by a claimant decision may apply to the Secretary for review of the decision, unless the decision was made personally by a PPL agency representative.

(5) An application under subsection (4) may only be made:

(a) within 28 days after the day the decision was made; or

(b) if the Secretary is satisfied that a longer period should apply—within the longer period.

(6) A person cannot make an application under subsection (4) in the person’s capacity as an employer.

207 Internal review—application for review of employer determination decision

Scope

(1) This section applies to a decision (an employer determination decision) of an officer under section 101 to make an employer determination.

(2) A reference in subsection (1) to a decision of an officer includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.

Application

(3) An employer may apply, in writing, to the Secretary for review of an employer determination decision that relates to the employer and a person if the employer believes that:

(a) both:

(i) a condition in paragraph 101(1)(b) or (c) is not satisfied in relation to the employer determination; and

(ii) the employer has not made an election under section 109 that applies to the person; or

(b) a condition in paragraph 101(1)(d) or (e) is not satisfied in relation to the employer determination.

Note 1: The conditions in paragraphs 101(1)(b) to (e) relate to the employment by an employer of someone to whom parental leave pay is payable.

Note 2: Section 109 allows an employer to elect to pay instalments to an employee, a class of employees or all employees of the employer. Subsection 101(2) deals with the application of paragraphs 101(1)(b) and (c) if the employer has made an election under section 109 that applies to the person.

(4) However, the employer cannot make an application under subsection (3) for review of an employer determination decision that was made personally by a PPL agency representative.

(5) An application under subsection (3) may only be made within the 14 day period referred to in section 103.

Note: Section 103 requires an employer for which an employer determination has been made to, within a 14 day period, either provide a notice to the Secretary accepting the determination or apply for review of the employer determination.

(6) An application under subsection (3) must:

(a) specify the condition or conditions that the employer believes are not satisfied; and

(b) if paragraph (3)(a) applies to the application—state whether the employer believes that an election under section 109 applies to the person; and

(d) be accompanied by:

(i) documentary evidence supporting the application; or

(ii) if the applicant is unable to provide documentary evidence—a statutory declaration supporting the application.

(7) The disclosure of personal information (within the meaning of the Privacy Act 1988) for the purposes of making an application under subsection (3) is taken to be authorised by this Act for the purposes of:

(a) the Privacy Act 1988; and

(b) any provision of a law of a State or a Territory that provides that personal information may be used or disclosed if the use or disclosure is authorised by law.

208 Internal review—application for review of employer funding amount decision

Scope

(1) This section applies to a decision of an officer under section 75 to pay a PPL funding amount to an employer.

(2) A reference in subsection (1) to a decision of an officer includes a reference to a determination that the Secretary is taken, because of a provision of this Act, to have made.

(3) A decision to which this section applies is an employer funding amount decision.

Application

(4) An employer may apply, in writing, to the Secretary for review of an employer funding amount decision that relates to the employer if:

(a) the employer believes that the Secretary has contravened subsection 75(3) in relation to the decision; and

(b) the decision was not made personally by a PPL agency representative.

Note: Subsection 75(3) requires the Secretary to pay a PPL funding amount to an employer within a certain time.

(5) An application under subsection (4) must be signed by a person authorised by the employer.

(6) An application under subsection (4) in relation to a PPL funding amount may only be made within 14 days after the second payroll cut‑off referred to in subsection 75(3) in relation to the PPL funding amount.

209 Internal review—withdrawal of application

(1) A person or an employer who has applied to the Secretary for review of a decision may withdraw the application at any time before the review has been completed.

(2) If an application for review of a decision, other than an application under section 207 (which deals with application for review of employer determination decisions), is withdrawn, the application is taken never to have been made.

(3) An application may be withdrawn orally or in writing or in any other manner approved by the Secretary.

210 Internal review—when decision made on review comes into force

(1) A decision under subsection 203(4) or paragraph 205(1)(b) (the review decision) to vary a decision or to set aside a decision and substitute a new decision comes into force on the day that would give full effect to the review decision.

(2) However, a decision comes into force immediately on the giving of the decision if it is a decision under subsection 203(4) or paragraph 205(1)(b) to:

(a) vary an employer determination decision or an employer funding amount decision; or

(b) set aside an employer determination decision or an employer funding amount decision and substitute a new decision.

211 Internal review—notice of decision on review of claimant decision

Scope

(1) This section applies if a person (the decision‑maker) makes a decision under subsection 203(4) or paragraph 205(1)(b) in relation to a claimant decision.

Notice

(2) The decision‑maker must give written notice of the decision to:

(a) any natural person (other than an employer) if the decision‑maker is satisfied that his or her interests are affected by the decision; and

(b) for a decision under paragraph 205(1)(b) in response to an application—the applicant.

(3) If the decision relates to a child, the decision‑maker must also give written notice of the decision to:

(a) any natural person who has made a claim in relation to the child; and

(b) any natural person who has notified the Secretary that he or she intends to make a claim in relation to the child, if the decision‑maker is satisfied that the claim has or would have a reasonable prospect of success.

(4) A notice under subsection (2) or (3) given to a person in relation to a decision must include a statement to the effect that the person may, subject to this Act and the AAT Act, apply to the AAT for review of the decision.

(5) Subsection (4) does not apply in relation to a decision referred to in subsection 215(2).

Note: Subsection 215(2) excludes certain claimant decisions from AAT review.

(6) A notice under subsection (2) or (3) given to a particular person in relation to a decision may also, if the decision‑maker considers it appropriate, include a statement that does one or more of the following, in whole or in part:

(a) sets out the reasons for the decision;

(b) sets out the findings by the decision‑maker on material questions of fact;

212 Internal review—notice of decision relating to employer

Scope

(1) This section applies if a person (the decision‑maker) makes a decision under subsection 203(4) or paragraph 205(1)(b) in relation to:

(a) an employer funding amount decision; or

(b) any other decision under Part 3‑2 (which deals with payment of instalments by employers); or

(d) any other decision under Part 3‑5 (which deals with employer determinations); or

(e) a decision under Part 4‑2 (which deals with compliance); or

(f) any other decision under this Act that directly affects the interests of an employer.

(2) To avoid doubt, paragraph (1)(f) does not apply to a decision if the only effect of the decision on the interests of an employer is that the decision could result in an employer determination for the employer being made, varied, set aside or revoked.

Notice

(3) The decision‑maker must give written notice of the decision to the employer concerned.

(4) The notice must include a statement that:

(a) sets out the reasons for the decision; and

(b) sets out the findings by the decision‑maker on material questions of fact; and

(5) A notice in relation to a decision referred to in paragraph (1)(a) or (1)(c) must include a statement to the effect that the employer may, subject to this Act and the AAT Act, apply to the AAT for review of the decision.

Part 5‑2—AAT first review of certain decisions

Division 1—Guide to this Part

213 Guide to this Part

This Part is about the review by the Administrative Appeals Tribunal of decisions that have been internally reviewed under Part 5‑1, and of decisions made personally by particular PPL agency representatives (which are not subject to internal review). These reviews are called AAT first reviews.

AAT first review is available for certain claimant decisions (called AAT reviewable claimant decisions). People whose interests are affected by AAT reviewable claimant decisions may apply for AAT first review of those decisions.

AAT first review is also available for certain employer determination decisions and employer funding amount decisions (called AAT reviewable employer decisions). Employers may apply for AAT first review of AAT reviewable employer decisions.

The rules relating to review by the AAT are mainly in the AAT Act, but this Part modifies the operation of that Act in some ways for the purposes of AAT first reviews.

Division 2—AAT first review of claimant decisions

215 Application of this Division

(1) This Division applies to the following decisions:

(a) if a claimant decision has been affirmed under paragraph 203(4)(a) or subparagraph 205(1)(b)(i)—the claimant decision as affirmed;

(b) if a claimant decision has been varied under paragraph 203(4)(b) or subparagraph 205(1)(b)(ii)—the claimant decision as varied;

(c) if a claimant decision has been set aside under paragraph 203(4)(c) or subparagraph 205(1)(b)(iii) and substituted with a new decision—the new decision;

(d) a claimant decision made personally by a PPL agency representative.

(2) However, this Division does not apply to any of the following decisions:

(a) a decision under one of the following provisions (which deal with the making of claims, the form and manner of claims, the form and manner of notices etc.):

(i) subsection 18(4);

(ii) subparagraph 25(1)(c)(ii);

(iii) subsections 53(2), (3) and (4);

(iv) section 56;

(v) subsection 61(2);

(va) subsection 82(2A);

(vi) paragraph 109(2)(a);

(vii) subsection 110(1);

(viia) subparagraph 115BK(1)(c)(ii);

(viib) section 115DC;

(viic) section 115DF;

(viid) subsection 115DL(2);

(viii) paragraph 120(2)(a);

(ix) subsection 125(4);

(x) paragraph 286(2)(b);

(xi) paragraph 288(2)(b);

(xii) paragraph 289(2)(b);

(xiii) subsection 289(5);

(b) a decision under subsection 69(2) (which deals with deductions relating to child support);

(d) a decision relating to the Secretary’s power under section 263 to settle proceedings before the AAT;

(e) a decision under the PPL rules, if the PPL rules state that this Division does not apply to the decision;

(f) a decision under the regulations, if the regulations state that this Division does not apply to the decision.

(3) A decision to which this Division applies is an AAT reviewable claimant decision.

216 AAT first review of claimant decision—application for review

(1) An application may be made to the AAT for review (AAT first review) of an AAT reviewable claimant decision.

(2) However, a person cannot make an application referred to in subsection (1) in the person’s capacity as an employer.

(3) Nor can a person, in the person’s capacity as an employer, apply to be a party to the review proceedings, despite subsection 30(1A) of the AAT Act.

Note: Subsection 30(1A) of the AAT Act allows persons whose interests are affected by a decision to apply to be a party to the review proceedings.

Division 3—AAT first review of employer decisions

223 Application of this Division

(1) This Division applies to the following decisions:

(a) if an employer determination decision or an employer funding amount decision has been affirmed under Part 5‑1—the decision as affirmed;

(b) if an employer determination decision or an employer funding amount decision has been varied under Part 5‑1—the decision as varied;

(c) if an employer determination decision or an employer funding amount decision has been set aside and substituted with a new decision under Part 5‑1—the new decision;

(d) an employer determination decision or an employer funding amount decision made personally by a PPL agency representative.

Note: Part 5‑1 deals with internal review.

(2) A decision to which this Division applies is an AAT reviewable employer decision.

224 AAT first review of employer decision—application for review

(1) An application may be made by an employer to the AAT for review (AAT first review) of an AAT reviewable employer decision that relates to the employer.

(2) However, if the AAT reviewable employer decision is an employer determination decision that relates to the employer and a person, an application referred to in subsection (1) may only be made if the employer believes that:

(a) both:

(i) a condition in paragraph 101(1)(b) or (c) is not satisfied in relation to the employer determination; and

(ii) the employer has not made an election under section 109 that applies to the person; or

(b) a condition in paragraph 101(1)(d) or (e) is not satisfied in relation to the employer determination.

Note 1: The conditions in paragraphs 101(1)(b) to (e) relate to the employment by an employer of someone to whom parental leave pay is payable.

(3) An application referred to in subsection (1):

(a) must be made in writing; and

(b) must be accompanied by a statutory declaration verifying the application; and

(i) specify the condition or conditions that the employer believes are not satisfied; and

(ii) if paragraph (2)(a) applies to the application—state whether the employer believes that an election under section 109 applies to the person.

(4) An application referred to in subsection (1) may only be made within 14 days after the day on which the AAT reviewable employer decision was made.

(5) Paragraph (3)(a) and subsection (4) apply despite:

(a) subparagraph 29(1)(a)(ii) of the AAT Act (which deals with oral applications for review); and

(b) paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act (which deal with when applications for review may be made).

Division 4—Other matters relating to AAT first reviews

224A Person who made the decision

For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to:

(a) the Secretary; and

(b) either of the following, if applicable:

(i) if the decision was made by the Chief Executive Centrelink or an APS employee in the Human Services Department—the Chief Executive Centrelink;

(ii) if the decision was made by the Chief Executive Medicare—the Chief Executive Medicare.

225 Operation and implementation of decision under AAT first review

Subsection 41(2) of the AAT Act does not apply in relation to an application for AAT first review.

Note: Under subsection 41(2) of the AAT Act the AAT may make an order staying or otherwise affecting the operation or implementation of the decision on review.

226 Variation of original decision after application is made for AAT first review

(1) If an officer varies or substitutes a decision after an application has been made for AAT first review of the decision, the application is taken to be an application for AAT first review of the decision as varied or substituted.

(2) If the person who made the application does not want the AAT to review the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

227 Procedure on receipt of application for AAT first review

(1) The AAT may, in relation to an application for AAT first review, request the Secretary to lodge with the AAT the statement and other documents referred to in subsection 37(1) of the AAT Act before the end of the period that otherwise applies under that subsection.

(2) If the AAT does so, the Secretary must take reasonable steps to comply with the request.

(3) Nothing in this section prevents the operation of subsection 37(1A) of the AAT Act (which allows the AAT to shorten the deadline for lodging documents).

228 AAT summons power for AAT first review

Section 40A of the AAT Act does not apply in relation to an AAT first review.

Note: Section 40A of the AAT Act deals with the AAT’s power to summon a person to give evidence or produce documents.

229 Secretary to provide further information for AAT first review

(1) The AAT may, in relation to an AAT first review, request the Secretary to provide the AAT with information or a document the Secretary has and that is relevant to the review of a decision.

(2) The Secretary must comply with a request under subsection (1) as soon as practicable and, in any event, not later than 14 days after the request is made.

230 AAT’s power to obtain information for AAT first review

(1) If the AAT reasonably believes that a person has information or a document that is relevant to an AAT first review, the AAT may, by written notice given to the person, require the person:

(a) to give to the AAT, within the period and in the manner specified in the notice, any such information; or

(b) to produce to the AAT, within the period and in the manner specified in the notice, any such documents; or

(2) A person commits an offence if:

(a) the AAT gives the person a notice under subsection (1); and

(b) the person fails to comply with the notice.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(3) Subsection (2) does not apply if complying with the notice might tend to incriminate the person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

231 AAT may require Secretary to obtain information for AAT first review

(1) If the AAT is satisfied that a person has information, or custody or control of a document, that is relevant to an AAT first review, the AAT may, for the purposes of the review, request the Secretary to exercise the Secretary’s powers under section 117 (which deals with the Secretary’s general power to obtain information).

(2) The Secretary must comply with a request under subsection (1) as soon as practicable and, in any event, within 7 days after the request is made.

232 Hearing of AAT first review in private

(1) The hearing of an AAT first review must be in private.

(2) The AAT may give directions, in writing or otherwise, as to the persons who may be present at any hearing of an AAT first review.

(3) In giving directions, the AAT must have regard to the wishes of the parties and the need to protect their privacy.

(4) Subsections 35(1) and (2) of the AAT Act do not apply in relation to the hearing of an AAT first review.

Note: Subsections 35(1) and (2) of the AAT Act deal with when hearings of proceedings in the AAT are in public or private.

233 Costs of AAT first review

(1) Subject to subsection (4), a party to an AAT first review must bear any expenses incurred by the party in relation to the review.

(2) The AAT may determine that the Commonwealth is to pay the reasonable costs that are:

(a) incurred by a party for travel and accommodation in relation to an AAT first review; and

(b) specified in the determination.

(3) If the AAT arranges for the provision of a medical service in relation to a party to an AAT first review, the AAT may determine that the Commonwealth is to pay the costs of the provision of the service.

(4) If the AAT makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.

234 When AAT decision on AAT first review comes into force

Claimant decision

(1) A decision of the AAT on AAT first review:

(a) to vary an AAT reviewable claimant decision; or

(b) to set aside an AAT reviewable claimant decision and substitute a new decision;

comes into force on the day that would give full effect to the decision of the AAT.

Employer decision

(2) A decision of the AAT on AAT first review:

(a) to vary an AAT reviewable employer decision; or

(b) to set aside an AAT reviewable employer decision and substitute a new decision;

comes into force immediately on the giving of the decision.

AAT Act

(3) Subsections (1) and (2) apply despite subsection 43(6) of the AAT Act (which deals with when AAT decisions take effect).

235 Notification of decisions and reasons for AAT first review

(1) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act to affirm the decision under review, the AAT must, within 14 days of making its decision:

(a) give a written notice to the parties that sets out the decision; and

(b) either:

(i) give reasons for the decision orally to the parties and explain that they may request a written statement of reasons; or

(ii) give the parties a written statement of reasons for the decision.

(2) If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act that is other than to affirm the decision under review, the AAT must, within 14 days of making its decision:

(a) give a written notice to the parties that sets out the decision; and

(b) give the parties a written statement of reasons for the decision.

(3) A failure to comply with subsection (1) or (2) does not affect the validity of the decision.

(4) A party to whom oral reasons are given may, within 14 days after the oral reasons are given, request a written statement of reasons for the decision. If the party does so, the AAT must give the party the statement requested within 14 days after receiving the request.

(5) Subsections 43(2) and (2A) of the AAT Act do not apply in relation to an AAT first review. However, any written statement of reasons given must comply with subsection 43(2B) of that Act.

Note: Subsections 43(2), (2A) and (2B) of the AAT Act are about the AAT giving reasons for its decisions.

Part 5‑3—AAT second review of claimant decisions

Division 1—Guide to this Part

236 Guide to this Part

This Part is about review by the Administrative Appeals Tribunal of a decision made by the Tribunal on AAT first review of a claimant decision. These reviews are called AAT second reviews.

AAT second review is only available in relation to claimant decisions—it is not available in relation to employer decisions.

The rules relating to review by the AAT are mainly in the AAT Act, but this Part modifies the operation of that Act in some ways for the purposes of AAT second reviews.

The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT on AAT second review.

Division 2—Applications for AAT second review

237 Applications for AAT second review

(1) An application may be made to the AAT for review (AAT second review) of a decision of the AAT under subsection 43(1) of the AAT Act on AAT first review in relation to a claimant decision.

(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:

(a) if the AAT affirmed a claimant decision—that decision as affirmed; and

(b) if the AAT varied a claimant decision—that decision as varied; and

(d) if the AAT set a claimant decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.

(3) An application referred to in subsection (1) may not be made by a person in the person’s capacity as an employer.

Division 3—Matters relating to AAT second review

238 Application of this Division

This Division applies if an application referred to in section 237 for AAT second review is made.

240 Parties to an AAT second review

The AAT Act applies to the application as if the reference in paragraph 30(1)(b) of the AAT Act to the person who made the decision were a reference to each person who was a party to the AAT first review (other than the person who made the application for AAT second review).

241 Operation and implementation of the AAT decision on AAT second review

(1) The AAT Act applies to the application as if the reference in subsection 41(2) of the AAT Act to the decision to which the relevant proceeding relates were a reference to:

(a) if, on AAT first review, the AAT affirmed the original decision—the original decision; and

(b) otherwise—both the original decision and whichever of the following is applicable in relation to the AAT first review:

(i) the original decision as varied by the AAT;

(ii) the decision substituted by the AAT;

(iii) the decision made as a result of reconsideration by the Secretary in accordance with any directions or recommendations of the AAT.

(2) For the purposes of subsection (1), the original decision is the decision that was the subject of the AAT first review.

(3) The AAT Act applies to the application as if references in subsections 41(4) and (5) of the AAT Act to the person who made the decision to which the relevant proceeding relates were references to each party to the relevant AAT first review.

242 Variation of original decision after application is made for AAT second review

(1) If an officer varies or substitutes a decision after an application has been made for AAT second review in relation to the decision:

(a) the AAT is taken, on AAT first review, to have varied or substituted the decision under review in the way the officer did; and

(b) the application is taken to be an application for AAT second review of the decision as varied or substituted.

(2) If the person who made the application does not want a review of the decision as varied or substituted, the person may notify the AAT under subsection 42A(1A) or (1AA) of the AAT Act that the application is discontinued or withdrawn.

243 Failure of party to appear

The AAT Act applies to the application as if the reference in subsection 42A(2) of the AAT Act to the person who made the decision were a reference to the Secretary.

Part 5‑4—Other matters relating to review

Division 1—Guide to this Part

270 Guide to this Part

This Part contains miscellaneous provisions relating to reviews.

Division 2—Other matters relating to review

271 Authorised review officers

The Secretary may, in writing, authorise an officer to be an authorised review officer for the purposes of this Act.

272 Review body may determine events to have happened, or not to have happened

(1) This section applies if the Secretary or the AAT (the review body) is reviewing a decision for the purposes of this Chapter.

(2) If the review body is satisfied that an event did not happen that would have happened if the decision had not been made, the review body may, if satisfied that it is reasonable to do so, determine that this Act is to apply as if the event had happened.

(3) If the review body is satisfied that an event happened that would not have happened if the decision had not been made, the review body may, if satisfied that it is reasonable to do so, determine that this Act is to apply as if the event had not happened.

273 Certain income test determinations not to be changed on review

(1) This section applies to a review being done for the purposes of this Chapter by an officer or the AAT (the review body) if:

(a) the review involves (wholly or partly) a review of a decision (the decision being reviewed) that:

(i) a person is or is not eligible for parental leave pay or dad and partner pay; or

(ii) parental leave pay, or dad and partner pay, is or is not payable to a person; and

(b) the review has involved (wholly or partly) the consideration of a determination (the income determination) that the person satisfies the income test; and

(c) the income determination was taken into account in the making of a decision that parental leave pay or dad and partner pay is payable to the person; and

(d) the person did not knowingly make a false or misleading representation or provide false or misleading information or documents to the Secretary or the AAT in relation to the income determination.

Note: For the income test, see section 37.

(2) Despite any provision of this Chapter or of the AAT Act, the review body must not vary the decision being reviewed, or set aside the decision being reviewed and substitute a new decision, in a way that has the effect of:

(a) varying the income determination so that the person is taken not to have satisfied the income test; or

(b) substituting a new determination that the person did not satisfy the income test.

273A Settlement of proceedings before the AAT

(1) The Secretary may agree, in writing, with other parties to settle proceedings before the AAT if the proceedings are an AAT first review or AAT second review and they relate to the recovery of a debt.

(2) If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.

Chapter 6—Miscellaneous

Part 6‑1—How this Act applies in particular circumstances

Division 1—Guide to this Part

274 Guide to this Part

This Part has rules that modify this Act so that it applies correctly in 3 limited kinds of cases—adoption, claims made in exceptional circumstances etc. and Commonwealth employment.

Division 2 modifies this Act so that it applies correctly for adopted children aged under 16. For example, where a provision of this Act refers to the day a child was born, Division 2 modifies that provision so that, when applying that provision to the adopted child, the provision has the effect of referring to the day the adopted child becomes entrusted to care (instead of the day the adopted child was born).

Division 3 modifies this Act so that it applies correctly for claims that are made in exceptional circumstances and other special cases. For example, where a provision of this Act refers to the day a child was born, Division 3 modifies that provision so that, when applying that provision in relation to a claim that is made in exceptional circumstance, the provision has the effect of referring to the day the claimant became the child’s primary carer (instead of the day the child was born).

Division 4 modifies this Act so that it applies correctly to Commonwealth employment.

Division 2—How this Act applies to an adopted child

275 How this Act applies to an adopted child

(1) This Act applies in relation to an adopted child that satisfies the requirements of subsection (2) as if:

(a) a reference to the birth of a child were a reference to the placement of the child; and

(b) a reference to the day the child was born were a reference to the day the child becomes entrusted to the care of a person as mentioned in subsection (2); and

(c) a reference to the expected date of birth of the child were a reference to the day expected to be the day the child will become entrusted to the care of a person as mentioned in subsection (2); and

(d) a reference to a child’s first birthday were a reference to the first anniversary of the day the child became entrusted to the care of a person as mentioned in subsection (2); and

(e) a reference to a completed birth verification form for a child were a reference to information required by the Secretary about the adoption of the child; and

(f) a reference to a child being born during the same multiple birth were a reference to the child being adopted during the same multiple adoption.

When a child satisfies this subsection

(2) A child satisfies the requirements of this subsection if:

(a) the child becomes, or is to become, entrusted (within the meaning of the Family Assistance Act) to the care of the person; and

(b) it is an authorised party that entrusts, or is to entrust, the child to the care of the person; and

(c) the authorised party does so, or is to do so, as part of the process for the adoption of the child by the person; and

(d) the child is, or will be, aged under 16 on the day the child becomes entrusted to the care of the person.

Division 3—How this Act applies to claims made in exceptional circumstances and other cases

276 How this Act applies to claims made in exceptional circumstances

This Act (other than subsection 18(3), which deals with birth registration) applies in relation to a claim that is made in exceptional circumstances as if:

(a) a reference to the birth of a child were a reference to the claimant becoming the child’s primary carer; and

(b) a reference to the day the child was born were a reference to the day the claimant became the child’s primary carer; and

(c) a reference to the expected date of birth of the child were a reference to the day the claimant expects to become the child’s primary carer; and

(d) a reference to a child’s first birthday were a reference to the first anniversary of the day the claimant became the child’s primary carer; and

(e) a reference to a completed birth verification form for a child were a reference to information required by the Secretary about the claimant becoming the child’s primary carer; and

(f) a reference to a child being born during the same multiple birth were a reference to the claimant becoming the primary carer of the child at the same time as becoming the primary carer of another child.

277 Primary carers when a child is stillborn or dies

(1) If:

(a) a claim is made for parental leave pay for a child; and

(b) before or after the claim is made, the child is stillborn or dies;

then this Act (other than sections 31 and 47) applies as if a reference to the claimant becoming or being the child’s primary carer were a reference to the claimant having become or been the child’s primary carer had the child not been stillborn or died.

Note: Section 31 deals with eligibility for parental leave pay and section 47 defines who is a primary carer.

(1A) If:

(a) a claim is made for dad and partner pay for a child; and

(b) before or after the claim is made, the child is stillborn or dies;

then this Act (other than sections 115CB and 115CL) applies as if a reference to the DAPP claimant caring for the child were a reference to the DAPP claimant caring for the child had the child not been stillborn or died.

Note: Section 115CB deals with eligibility for dad and partner pay and section 115CL defines when a person is caring for a child for the purposes of dad and partner pay.

(2) The PPL rules may modify the operation of subsection (1) or (1A).

Division 3A—How this Act applies to claims for dad and partner pay made in prescribed circumstances

277A How this Act applies to claims for dad and partner pay made in prescribed circumstances

(1) This section applies to a claim for dad and partner pay that is made in circumstances prescribed by the PPL rules as being circumstances in which this section applies.

(2) This Act (other than subsection 18(3), which deals with birth registration) applies in relation to the claim as if:

(a) a reference to the birth of a child were a reference to the earlier of:

(i) the claimant beginning to care for the child; and

(ii) the claimant’s partner (if any) beginning to care for the child; and

(b) a reference to the day the child was born were a reference to the earlier of:

(i) the day the claimant began to care for the child; and

(ii) the day the claimant’s partner (if any) began to care for the child; and

(i) the day the claimant expects to begin to care for the child; and

(ii) the day the claimant’s partner (if any) expects to begin to care for the child; and

(d) a reference to a child’s first birthday were a reference to the first anniversary of the earlier of:

(i) the day the claimant began to care for the child; and

(ii) the day the claimant’s partner (if any) began to care for the child; and

(e) a reference to a completed birth verification form for a child were a reference to information required by the Secretary about the earlier of:

(i) the claimant beginning to care for the child; and

(ii) the claimant’s partner (if any) beginning to care for the child; and

(f) a reference to a child being born during the same multiple birth were a reference to:

(i) unless subparagraph (ii) applies—the claimant beginning to care for the child at the same time as beginning to care for another child; or

(ii) if the claimant’s partner (if any) begins to care for the child before the claimant—the claimant’s partner beginning to care for the child at the same time as beginning to care for another child.

(3) This section does not limit Division 2 of this Part (which deals with how this Act applies to an adopted child).

Note: Not all circumstances to which paragraph 115DD(d) applies must be prescribed as being circumstances in which this section applies. For example, the adoption of a child could be prescribed for the purposes of that paragraph but not for the purposes of this section, in which case section 275 (which deals with how this Act applies to an adopted child) would apply.

Division 4—How this Act applies to Commonwealth employment

278 How this Act applies to Commonwealth employment

(1) This Act applies in relation to a person who is engaged by or on behalf of the Commonwealth as an employee, to perform functions in a Commonwealth agency as if:

(a) the employee were employed by the agency (rather than the Commonwealth) for whom the person is to perform functions; and

(b) the agency were a body corporate; and

(c) the head of the agency (however described) has all the rights, duties and powers of an employer in relation to the employee.

(2) However, for the purposes of working out for the purposes of paragraph 101(1)(c) (which deals with when the Secretary must make an employer determination) whether the person has, or will have, been employed by the Commonwealth agency for at least 12 months:

(a) treat the reference in that paragraph to the employer as being a reference to the Commonwealth; and

(b) disregard subsection (1) of this section.

Division 5—Loss of parental leave pay or dad and partner pay for persons on security grounds

278A Simplified outline of this Division

Persons who might prejudice the security of Australia or a foreign country may lose parental leave pay or dad and partner pay.

278B Loss of parental leave pay or dad and partner pay for persons on security grounds

(1) If a security notice is given to the Minister in relation to a person, then while the notice is in force:

(a) no parental leave pay or dad and partner pay is to be paid to the person; and

(b) the person is not eligible for parental leave pay or dad and partner pay; and

Note: A security notice is a notice under section 278C.

(2) If:

(a) a security notice is given to the Minister in relation to a person; and

(b) a payability determination that parental leave pay or dad and partner pay is payable to the person is in force at the end of the day (the relevant day) before the day the notice is given; and

then that determination is taken to be varied so that the person’s PPL period or DAPP period, as the case requires, ends at the end of the relevant day.

(3) If a security notice given to the Minister in relation to a person ceases to be in force, then for any day while the notice was in force:

(a) the person is not eligible for parental leave pay or dad and partner pay; and

(b) parental leave pay or dad and partner pay is not payable to the person.

(4) Subsections (1) to (3) have effect despite any other provision of this Act.

(5) If a payability determination for a person is varied by subsection (2), the Secretary must cause reasonable steps to be taken to notify the person of the variation.

278C Security notice from Home Affairs Minister

(1) The Home Affairs Minister may give the Minister a written notice requiring that this Division apply in relation to a specified person if:

(a) the Foreign Affairs Minister gives the Home Affairs Minister a notice under section 278D in relation to the person; or

(b) the person’s visa is cancelled under section 116 or 128 of the Migration Act 1958 because of an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(c) the person’s visa is cancelled under section 134B of the Migration Act 1958 (emergency cancellation on security grounds) and the cancellation has not been revoked because of subsection 134C(3) of that Act; or

(d) the person’s visa is cancelled under section 501 of the Migration Act 1958 and there is an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(2) Before giving a notice under this section, the Home Affairs Minister must have regard to the following:

(a) the extent (if any) that any payments of parental leave pay or dad and partner pay of the person are being, or may be, used for a purpose that might prejudice the security of Australia or a foreign country, if the Home Affairs Minister is aware of that extent;

(b) the likely effect of the operation of section 278B on the person’s dependants, if the Home Affairs Minister is aware of those dependants.

(3) The Secretary of the Department administered by the Home Affairs Minister must:

(a) seek the advice of the Human Services Secretary in relation to paragraph (2)(b); and

(b) inform the Home Affairs Minister of that advice.

(4) Subsection (2) does not limit the matters to which regard may be had.

278D Notice from Foreign Affairs Minister

If:

(a) either:

(i) under subsection 14(2) of the Australian Passports Act 2005, the Foreign Affairs Minister refuses to issue a person an Australian travel document; or

(ii) under section 22 of that Act, the Foreign Affairs Minister cancels a person’s Australian travel document; and

(b) the refusal or cancellation was because of a refusal/cancellation request made in relation to the person under subsection 14(1) of that Act; and