Federal Register of Legislation - Australian Government

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Act No. 81 of 1999 as amended, taking into account amendments up to Act No. 105 of 2010
An Act to implement A New Tax System by providing assistance to families, and for related purposes
Administered by: Education, Employment and Workplace Relations; Families, Housing, Community Services and Indigenous Affairs
Registered 04 Jan 2011
Start Date 01 Jan 2011
End Date 21 Mar 2011

A New Tax System (Family Assistance) (Administration) Act 1999

Act No. 81 of 1999 as amended

This compilation was prepared on 1 January 2011
incorporating amendments up to Act No. 105 of 2010

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

Part 2—Interpretation                                                                                                          2

3............ Definitions.......................................................................................... 2

3A......... Application of the Criminal Code.................................................... 10

4............ Approval of use of electronic equipment etc. to do things for the purposes of the family assistance law             11

4A......... Rate and amount of CCB by fee reduction may be zero.................. 11

Part 3—Payment of family assistance                                                                       12

Division 1—Family tax benefit                                                                               12

Subdivision A—Making claims                                                                              12

5............ Need for a claim................................................................................ 12

6............ Who can claim................................................................................... 12

7............ How to claim.................................................................................... 12

7A......... Bank account details or statement to be provided for claims for family tax benefit by instalment to be effective 13

8............ Tax file number requirement to be satisfied for claims for family tax benefit by instalment or for a past period to be effective............................................................................................ 14

8A......... Tax file number requirement to be satisfied for claim in substitution because of the death of another individual to be effective............................................................................................ 15

9............ Restrictions on claims for payment of family tax benefit by instalment 17

10.......... Restrictions on claims for payment of family tax benefit for a past period            17

11.......... Restrictions on bereavement claims.................................................. 19

12.......... Claim may be withdrawn or varied................................................... 20

Subdivision B—Determination of claims etc.                                                      20

13.......... Secretary must determine claim........................................................ 20

14.......... Restriction on determining claim where income tax assessment not made              20

15.......... Restriction on determining claim where tax file number not provided etc.              21

15A....... Restriction on determining claim where bank account details not provided            22

15B....... Deferral of determination of early claims......................................... 22

16.......... Determination of instalment entitlement claim................................. 23

17.......... Determination of past period entitlement claim............................... 24

18.......... Determination of bereavement entitlement claim............................. 25

19.......... Determination that no entitlement.................................................... 25

20.......... Determination of rate may be based on estimate, indexed estimate or indexed actual income 25

20A....... Indexed estimates.............................................................................. 27

20B....... Indexed actual incomes..................................................................... 29

20C....... Indexed estimates and indexed actual incomes of members of couples 32

21.......... When determination is in force......................................................... 33

22.......... Notice of determination.................................................................... 34

23.......... Payment of family tax benefit by instalment................................... 35

24.......... Other payments of family tax benefit.............................................. 37

25.......... Obligation to notify change of circumstances................................... 37

25A....... Secretary’s power to approve a manner of notification................... 38

26.......... Secretary’s power to request tax file numbers................................. 38

26A....... Secretary’s power to require bank account details........................... 39

Subdivision C—Variation of determinations                                                       40

27.......... Variation of instalment and past period determinations where failure to provide tax file number          40

27A....... Variation of instalment entitlement determination where failure to provide bank account details          42

28.......... Variation of instalment and past period entitlement determinations where income tax return not lodged              43

28A....... Variation of instalment entitlement determination where estimate of an amount is not reasonable        46

28B....... Variation of instalment entitlement determination where claim made for another payment type           47

29.......... Variation of instalment entitlement determination where failure to provide information        49

30.......... Variation of instalment entitlement determination where failure to notify change of address 50

30A....... Variation of instalment entitlement determination where failure to notify claimant’s departure from Australia    51

30B....... Variation of instalment entitlement determination where failure to notify FTB or regular care child’s departure from Australia........................................................................................... 52

31.......... Variation of instalment entitlement determination to reflect changes in eligibility  53

31A....... Variation of instalment entitlement determination to reflect revised adjusted taxable income estimates                55

31B....... Variation of instalment entitlement determination to reflect revised maintenance income estimates      56

31C....... Variation of instalment entitlement determination to reflect indexation of estimate of adjusted taxable income    57

31D....... Variation of instalment entitlement determination to reflect indexation of adjusted taxable income       58

31E........ Continuous adjustment of daily rate of family tax benefit payable by instalment  59

32.......... Notice of variation of determination................................................. 61

Subdivision CA—Non‑payment of family tax benefit for non‑lodgment of tax returns       61

32AA.... Non‑payment of family tax benefit for non‑lodgment of tax returns 61

32AB.... Prohibited periods for claimant........................................................ 62

32AC.... Prohibited periods for relevant partner............................................ 65

32AD.... Prohibited periods for new partner.................................................. 68

32AE..... Non‑entitlement to payment of family tax benefit after 3 or more variations under subsection 28(2)   68

Subdivision D—FTB reconciliation conditions                                                   70

32A....... FTB Part A supplement and FTB Part B supplement to be disregarded unless and until individual has satisfied the FTB reconciliation conditions.......................................................... 70

32B....... When FTB reconciliation conditions are satisfied............................ 71

32C....... Relevant reconciliation time—member of a couple, income tax return lodged within 2 years 72

32D....... Relevant reconciliation time—individual not member of a couple, income tax return lodged within 2 years          73

32E........ Relevant reconciliation time—couple separates before the end of the relevant income year, individual lodges income tax return................................................................................................ 73

32F........ Relevant reconciliation time—couple separates after the end of the relevant income year, at least one member of the couple lodges income tax return........................................................ 74

32G....... Relevant reconciliation time—couple separates after the end of the relevant income year, neither have lodged a tax return by the end of the designated date........................................... 76

32H....... Relevant reconciliation time—couple separates after the end of the designated date              76

32J........ Relevant reconciliation time—individual not required to lodge an income tax return              77

32K....... Relevant reconciliation time—child aged 5 or more and less than 16 78

32L........ Relevant reconciliation time—child aged 16 or more........................ 79

32M...... Relevant reconciliation time—target foreign income, tax free pension/benefit or child maintenance expenditure   79

32N....... Relevant reconciliation time—individual has maintenance income... 80

32P........ Relevant reconciliation time—individual not member of a couple, no maintenance income etc.             81

32Q....... Relevant reconciliation time—individual covered by determination made by the Secretary   81

32R....... Designated date................................................................................. 82

Division 2—Payment of family tax benefit advances                                  83

33.......... Determination of entitlement to family tax benefit advance............. 83

34.......... Amount of family tax benefit advance.............................................. 84

35.......... Payment of family tax benefit advance............................................. 85

Division 3—Baby bonus and maternity immunisation allowance        86

36.......... Need for a claim................................................................................ 86

37.......... Who can claim................................................................................... 86

38.......... How to claim.................................................................................... 86

38A....... Tax file number requirement to be satisfied for claims for baby bonus or maternity immunisation allowance in normal circumstances to be effective............................................................ 87

38B....... Tax file number requirement to be satisfied for claims for baby bonus or maternity immunisation allowance because of the death of another individual to be effective.................................. 89

39.......... Restrictions on claiming.................................................................... 90

40.......... Claim may be withdrawn.................................................................. 93

41.......... Secretary must determine claim........................................................ 93

41A....... Restriction on determining claim where tax file number not provided etc.              97

42.......... Determination of “normal circumstances” entitlement claim........... 98

43.......... Determination of “bereavement” entitlement claim.......................... 99

44.......... Determination that no entitlement.................................................... 99

45.......... When determination is in force......................................................... 99

46.......... Notice of determination.................................................................... 99

47.......... Payment of baby bonus.................................................................. 100

47AA.... Payment of maternity immunisation allowance............................. 103

47AB.... Other rules about payments of baby bonus and maternity immunisation allowance              103

47A....... Variation of determination where certain statements under section 38A made       103

47B....... Claimant for payment of baby bonus to notify changes in care of the child           104

47C....... Secretary’s power to approve a manner of notification................. 105

Division 4—Child care benefit                                                                             106

Subdivision A—Overview of process of fee reductions                                    106

48.......... Overview of process if individual is conditionally eligible for child care benefit by fee reduction          106

Subdivision B—Making claims                                                                            107

49.......... Need for a claim.............................................................................. 107

49A....... Who can make a claim..................................................................... 107

49B....... What may be claimed by an individual........................................... 107

49C....... Form etc. of effective claim by individual...................................... 108

49D....... Deemed claim under subsection 49(2) effective in certain circumstances                110

49E........ Tax file number requirement to be satisfied for claim by individual for payment of child care benefit for a past period for care provided by an approved child care service to be effective 110

49F........ Tax file number requirement to be satisfied for claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual to be effective                112

49G....... Bank account details or statement to be provided for claims by individuals for child care benefit to be effective 114

49H....... Restrictions on claims by an individual for payment of child care benefit by fee reduction   115

49J........ Restrictions on claim by individual for payment of child care benefit for past period for care provided by an approved child care service............................................................................. 116

49K....... Restrictions on claim by individual for payment of child care benefit for past period for care provided by a registered carer................................................................................................ 119

49L........ Restrictions on claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual............................................................. 120

49M...... Restriction on claim by an approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk........................................ 121

49N....... Claims may be withdrawn or varied............................................... 122

Subdivision C—Determinations to be made on claim if individual claims payment of child care benefit by fee reduction                                                                                                       122

50.......... Determinations on effective claim.................................................. 122

50A....... Secretary must make determinations.............................................. 123

50B....... Determination of conditional eligibility or no entitlement to be made 123

50C....... Other determinations to be made if determination of conditional eligibility is made               124

50D....... Restriction on when determinations under section 50F or 50G can be made          124

50E........ Restriction on determination under section 50F or 50G if bank account details not provided               126

50F........ Determination of conditional eligibility.......................................... 126

50G....... Determination that no entitlement.................................................. 126

50H....... Determination of weekly limit of hours......................................... 126

50J........ Determination of CCB %............................................................... 127

50K....... Determination of schooling %........................................................ 127

50L........ When determinations are in force................................................... 127

50M...... Notice of determinations if claimant conditionally eligible............. 129

50N....... When determination of no entitlement is in force........................... 130

50P........ Notice of determination of no entitlement...................................... 130

Subdivision CA—Determination of eligibility for special grandparent rate if individual determined to be conditionally eligible for child care benefit by fee reduction                     131

50Q....... Determination of eligibility for special grandparent rate................ 131

50R....... Grandparents and great‑grandparents............................................. 131

50S........ Eligibility for special grandparent rate............................................ 132

50T....... Secretary must determine claimant’s eligibility for special grandparent rate in certain circumstances    132

50U....... Criteria for making determination................................................... 134

50V....... Notice of determination that claimant eligible for special grandparent rate             134

50W...... Notice of determination that claimant not eligible for special grandparent rate       135

50X....... When determination that claimant is eligible for special grandparent rate is in force              135

50Y....... When determination that claimant is not eligible for special grandparent rate is in force        136

Subdivision CB—Calculating the rate and amount of fee reductions           137

50Z....... Calculating the rate and amount of fee reductions—individual conditionally eligible              137

50ZA.... Revising the rate and amount calculation........................................ 138

50ZB..... Calculating the amount of child care benefit by fee reduction—service eligible      138

50ZC..... Revising the rate and amount calculation........................................ 139

Subdivision D—Determination of entitlement if individual determined to be conditionally eligible for child care benefit by fee reduction                                                                               140

51.......... Determination to be made if determination of conditional eligibility in force          140

51A....... Secretary must determine entitlement............................................ 140

51B....... Determination of entitlement.......................................................... 140

51C....... Determination that no entitlement.................................................. 141

51D....... When determination is in force....................................................... 142

51E........ Notice of determination.................................................................. 142

Subdivision E—Determination of entitlement if individual claims payment of child care benefit for a past period      143

52.......... Determination on effective claim.................................................... 143

52A....... Secretary must determine claim...................................................... 143

52B....... Restriction on determining claim where bank account details not provided            143

52C....... Restriction on determining claim where tax file number not provided etc.              143

52D....... Restriction on determining claim for care provided by an approved child care service where tax assessment not made........................................................................................................ 144

52E........ Determination of entitlement—claim for care provided by an approved child care service    144

52F........ Determination of entitlement—claim for care provided by a registered carer         145

52G....... Determination that no entitlement.................................................. 145

52H....... When a determination is in force.................................................... 146

52J........ Notice of determination.................................................................. 146

Subdivision F—Determination of entitlement if individual claims payment of child care benefit by single payment/in substitution                                                                                 147

53.......... Determination on effective claim.................................................... 147

53A....... Secretary must determine claim...................................................... 147

53B....... Restriction on determining claim where bank account details not provided            147

53C....... Restriction on determining claim where tax file number not provided etc.              148

53D....... Determination of entitlement.......................................................... 148

53E........ Determination that no entitlement.................................................. 149

53F........ When a determination is in force.................................................... 149

53G....... Notice of determination.................................................................. 150

Subdivision G—Determination of entitlement if claim by approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk                151

54.......... Determination on effective claim.................................................... 151

54A....... Secretary must determine claim...................................................... 151

54B....... Determination of entitlement.......................................................... 151

54C....... Determination of weekly limit of hours......................................... 152

54D....... Notice of determination.................................................................. 152

Subdivision H—Matters relating to determinations                                         153

55.......... Determination of CCB % under section 50J may be based on estimate, indexed estimate or indexed actual income........................................................................................................ 153

55AA.... Indexed estimates............................................................................ 154

55AB.... Indexed actual incomes................................................................... 156

55AC.... Indexed estimates and indexed actual incomes for members of couples  159

55A....... Determination of rate under Subdivision F may be based on estimate 160

55B....... CCB % applicable to individual is zero % when certain other information not provided       160

55C....... CCB % applicable to individual when tax file number information not given         161

55D....... Schooling % applicable to individual when certain information not provided         162

Subdivision J—Payment                                                                                        162

56.......... Payment in respect of claim for child care benefit by fee reduction if claim by individual     162

56A....... Payment of child care benefit for a past period and by single payment/in substitution         163

56B....... Payment of child care benefit by fee reduction where claim by an approved child care service             163

Subdivision K—Obligations to notify change of circumstances                    164

56C....... Individual’s obligation to notify change of circumstances.............. 164

56D....... Approved child care service’s obligation to notify of change of circumstances      169

Subdivision L—Secretary’s powers                                                                     173

57.......... Secretary’s power to approve a manner of notification for the purposes of sections 56C and 56D      173

57A....... Secretary’s power to require bank account details......................... 174

57B....... Secretary’s powers to request in claim form tax file number etc. of TFN claim persons        174

57C....... Secretary’s power to request tax file numbers etc. of certain TFN claim persons  176

57D....... Secretary’s power to request tax file numbers of TFN determination persons       176

57E........ Secretary’s power to require immunisation details........................ 177

57F........ Secretary’s power to require data verification information............ 178

57G....... Secretary’s power to require further information about children enrolled in child care           178

Subdivision M—Variations of determinations if failure to provide tax file numbers or bank account details or to meet the immunisation requirement                                                      179

58.......... Variation where failure to provide tax file number......................... 179

58A....... Variation where failure to comply with request for bank account details               181

58B....... Variation where failure to comply with requirement to meet immunisation requirement       182

Subdivision N—Variations of determinations if failure to provide data verification          183

59.......... Variation for failure to return the data verification form................ 183

59A....... Variation for failure to provide information in the data verification form relating to the name and address of the approved child care service............................................................. 184

59B....... Variation for failure to provide information in the data verification form relating to conditional eligibility            184

59C....... Variation for failure to provide information in the data verification form relating to schooling %          185

59D....... Variation for failure to provide information in the data verification form relating to CCB % 186

59E........ Variation where information in the data verification form relating to CCB % affects the CCB %          187

59F........ Variation for failure to provide information in the data verification form relating to weekly limit of hours           187

59G....... Variation for failure to provide information in the data verification form relating to special grandparent rate       188

Subdivision P—Other variations of determinations relating to  CCB %    189

60.......... Variation where no entitlement for child care benefit for a past period because CCB % is zero %, and claimant gives information so that CCB % can be recalculated............................. 189

60A....... Variation where no entitlement for child care benefit by single payment/in substitution because CCB % is zero %, and claimant gives information so that CCB % can be recalculated...... 190

60B....... Variation where CCB % is zero % because of subsection 55(2) or 55B(1), or section 55C, and claimant gives certain information so that CCB % is recalculated..................................... 192

60C....... Variation where CCB % calculated under Schedule 2 to Family Assistance Act and Secretary receives information from Commissioner of Taxation.............................................................. 193

60D....... Variation where income tax return not lodged................................ 194

60E........ Variation where estimate of an amount given other than in response to a request by the Secretary is not reasonable........................................................................................................ 195

Subdivision Q—Variation of determinations relating to conditional eligibility and schooling %  196

61.......... Variation where schooling % is 85% under section 55D and information about whether the child is a school child provided.......................................................................................... 196

61A....... Variation where failure to notify that the service has ceased to provide care to child             197

Subdivision R—Variations of determinations because of failure to meet requirements arising under Division 1 of  Part 6                                                                                                       198

62.......... Variation where failure to provide information relevant to conditional eligibility etc.            198

62A....... Variation where failure to provide information relevant to CCB % 199

62B....... Variation where failure to provide information relevant to schooling % 199

62C....... Variation where failure to provide information relevant to a weekly limit of hours                200

62CA.... Variation where failure to provide information relevant to eligibility for special grandparent rate         201

Subdivision S—Further variations after certain variations that can be undone  202

62D....... Secretary finds out information after undoing period is over......... 202

Subdivision T—Notice requirement for variations under Subdivision M, N, P, Q, R or S                202

63.......... Notice of variation of determinations under Subdivision M, N, P, Q, R or S         202

Subdivision U—Variations of determinations of weekly limit of hours because of a circumstance in section 54, 55 or 56 of the Family Assistance Act                                                   203

64.......... Determination of weekly limit of hours may be varied.................. 203

64A....... Varying determination so that a limit of 50 hours in a week applies 203

64B....... Varying determination so that a limit of more than 50 hours in a week applies      205

64C....... Varying determination so that a 24 hour care limit in a week applies 206

64D....... Varying determination so that a limit of 24 hours in a week applies 207

64DA.... When variations must not be made................................................. 208

64E........ Notice of variation of determination under this Subdivision.......... 208

64EA..... When variations take effect............................................................ 209

64F........ Form of application........................................................................ 209

Subdivision V—Variations of determinations for changes in circumstances 210

65.......... Variation of determination of conditional eligibility to reflect changes in conditional eligibility             210

65A....... Variation of determination of CCB % to reflect changes in CCB % 210

65B....... Variation of determination of CCB % to reflect revised adjusted taxable income estimates   212

65BA.... Variation of determination of CCB % to reflect indexation of estimate of adjusted taxable income       213

65BB..... Variation of determination of CCB % to reflect indexation of adjusted taxable income          214

65C....... Variation of determination of schooling % to reflect changes in schooling %          215

65D....... Variation of determination of a weekly limit of hours to reflect changes in weekly limit of hours         216

65DA.... Variation of determination of eligibility for special grandparent rate 217

65E........ Notice of variation under this Subdivision..................................... 219

Division 4AA—Child care rebate                                                                      220

Subdivision AA—Quarterly payments of child care rebate                            220

65EAA.. Quarterly payments of child care rebate........................................ 220

65EAB.. Revising a calculation of quarterly child care rebate....................... 221

65EAC.. Notices relating to quarterly payments of child care rebate........... 221

Subdivision A—Determination of entitlement to child care rebate               222

65EA..... Determining entitlement, or no entitlement, to child care rebate—eligibility for child care benefit by fee reduction........................................................................................................ 222

65EB..... Determining entitlement, or no entitlement, to child care rebate—eligibility for child care benefit for past period........................................................................................................ 224

65EC..... Later determinations of entitlement to child care rebate................. 225

65ECA.. Determining entitlement, or no entitlement, to child care rebate—eligibility for child care benefit in substitution........................................................................................................ 225

65ED..... When determination is in force....................................................... 227

65EE..... Notice of determination.................................................................. 227

Subdivision B—Payment                                                                                        227

65EF..... Payment of child care rebate........................................................... 227

Division 4A—One‑off payment to families                                                    230

65F........ Payment of one‑off payment to families........................................ 230

Division 4B—Economic security strategy payment to families         231

65G....... Payment of economic security strategy payment to families........ 231

Division 4C—Back to school bonus and single income family bonus 232

65H....... Payment of back to school bonus and single income family bonus 232

Division 5—Payment protection and garnishee orders                          233

66.......... Protection of payments under this Part......................................... 233

67.......... Effect of garnishee etc. order.......................................................... 234

Part 4—Overpayments and debt recovery                                                           236

Division 1—Preliminary                                                                                          236

68.......... Meaning of amount paid to person................................................. 236

68A....... Recovery from approved child care service.................................... 237

69.......... Special provisions relating to approved child care services............ 237

Division 2—Amounts recoverable under this Act                                    238

70.......... Debts due to the Commonwealth................................................... 238

71.......... Debts arising in respect of family assistance other than child care benefit and family tax benefit advance            238

71A....... Debts arising in respect of family tax benefit advances.................. 239

71B....... Debts where no entitlement or where enrolment advance wrongly paid 239

71C....... Debts arising in respect of child care benefit where overpayment. 241

71CAA. Debts arising in respect of child care rebate where no entitlement. 241

71CAB.. Debts arising in respect of child care rebate where overpayment.. 243

71CAC.. Debts arising in respect of child care rebate paid to wrong account 245

71CA.... Debts arising in respect of fee reduction payments not remitted—debt owed by service      245

71D....... Debt arising in respect of child care benefit where false or misleading statement by individual—debt owed by individual........................................................................................ 246

71E........ Debt arising in respect of child care benefit when false or misleading statement etc. by service—debt owed by service........................................................................................................ 247

71F........ Debts arising under more than one provision................................. 249

71G....... Debts arising in respect of child care benefit where fee reduction or enrolment advance paid to service—debt owed by service............................................................................................. 250

71GA.... Debt arising in respect of remittal of enrolment advances under paragraph 200(1)(g)            251

71GB.... Debts arising in respect of business continuity payments paid to service—debt owed by service        251

71H....... Debts arising where reporting period limit is exceeded—debt owed by service      252

71I......... Debts arising in respect of one‑off payment to families................ 252

71J........ Debts arising in respect of economic security strategy payment to families          255

71K....... Debts arising in respect of back to school bonus or single income family bonus    258

73.......... Debts arising from AAT stay orders.............................................. 260

74.......... Person other than payee obtaining payment of a cheque............... 260

75.......... Debts arising from conviction of person for involvement in contravention of family assistance law by debtor    261

76.......... Data‑matching Program (Assistance and Tax) Act debts............... 261

77.......... Notices in respect of debt............................................................... 261

78.......... Interest on debt............................................................................... 262

78A....... Determination that interest not to be payable................................ 264

78B....... Administrative charge..................................................................... 265

79.......... Penalty interest rate........................................................................ 265

79A....... Guidelines on the penalty interest provisions................................ 265

80.......... Debt from failure to comply with garnishee notice........................ 266

81.......... Overseas application of provisions................................................ 267

Division 3—Methods of recovery                                                                      268

82.......... Methods of recovery...................................................................... 268

84.......... Deductions from debtor’s family tax benefit.................................. 269

84A....... Setting off family assistance against debt owed............................. 270

86.......... Time limits on recovery action under sections 84, 84A, 87A and 87B 270

87.......... Application of income tax refund owed to person......................... 271

87A....... Setting off debts of an approved child care service against enrolment advances to be paid to the service              272

87B....... Setting off debts of an approved child care service against amounts to be paid to the service in respect of fee reduction........................................................................................................ 273

88.......... Legal proceedings............................................................................ 273

89.......... Garnishee notice............................................................................. 274

90.......... Time limits on recovery action under section 89............................ 276

91.......... Arrangement for payment of debt by instalments......................... 277

92.......... Deduction by consent from a person’s family tax benefit to meet another person’s debt      278

92A....... Setting off family assistance of person against another person’s debt 279

93.......... Application of income tax refund owed to another person............ 279

93A....... Recovery of amounts from financial institutions........................... 280

Division 4—Non‑recovery of debts                                                                   283

94.......... Meaning of debt.............................................................................. 283

95.......... Secretary may write off debt.......................................................... 283

96.......... Power to waive Commonwealth’s right to recover debt................ 286

97.......... Waiver of debt arising from error.................................................... 286

98.......... Waiver of debt relating to an offence.............................................. 287

99.......... Waiver of small debt....................................................................... 287

100........ Waiver in relation to settlements.................................................... 288

101........ Waiver in special circumstances..................................................... 289

102........ Secretary may waive debts of a particular class............................. 290

103........ Determination that penalty interest not payable in relation to particular periods  290

Part 5—Review of decisions                                                                                         292

Division 1—Internal review                                                                                  292

Subdivision A—Review initiated by the Secretary                                            292

104........ Decisions that may be reviewed by the Secretary on own initiative 292

105........ Secretary may review certain decisions on own initiative.............. 293

105A..... Review of determination or variation—taking account of FTB Part A supplement or FTB Part B supplement   294

106........ Notice of review decision to be given............................................. 295

107........ Date of effect of certain decisions made under section 105............ 298

Subdivision B—Review initiated by the applicant                                              301

108........ Decisions that may be reviewed under section 109A..................... 301

109A..... Review of certain decisions may be initiated by applicant............ 303

109B..... Notice to be given of decisions under section 109A....................... 305

109C..... Authorised review officers............................................................. 306

109D..... Review applications—time limits applicable to review of certain decisions           307

109DA.. Review applications—time limits applicable to decisions in relation to child care services and registered carers  310

109E...... Date of effect of certain decisions relating to payment of family tax benefit by instalment   310

109F...... Withdrawal of review applications................................................. 312

109G..... Secretary may continue payment etc. pending outcome of application for review 312

109H..... Notification of further rights of review.......................................... 314

Division 2—Review by the Social Security Appeals Tribunal             315

110........ SSAT objective............................................................................... 315

111........ Application for review by SSAT................................................... 315

111A..... Review applications—time limits applicable to review by the SSAT of certain decisions     316

111B..... Date of effect of certain SSAT decisions relating to payment of family tax benefit by instalment        317

112........ Secretary may continue payment etc. pending outcome of application for review 318

113........ SSAT review powers...................................................................... 319

114........ Powers of the SSAT....................................................................... 321

116........ Application requirements............................................................... 321

117........ Variation of decision before review completed............................... 321

118........ Parties to SSAT review.................................................................. 322

Division 3—Procedures for review by the SSAT                                       323

Subdivision A—Preliminary procedures                                                            323

119........ Procedure on receipt of application for review by SSAT.............. 323

120........ Parties to be given a statement about the decision under review.... 324

121........ Arrangements for hearing of application........................................ 324

122........ Notice of application to person affected by decision..................... 325

Subdivision B—Submissions from parties other than agency heads            325

122A..... Subdivision does not apply in relation to agency heads................. 325

123........ Submissions to SSAT..................................................................... 326

125........ SSAT hearings on written submissions only.................................. 326

126........ SSAT hearings without oral submissions by party........................ 327

Subdivision BA—Submissions from agency heads                                          328

126A..... Submissions from agency heads..................................................... 328

Subdivision BB—Other evidence provisions                                                     329

127........ Evidence on oath or affirmation...................................................... 329

128........ Provision of further information by Secretary............................... 329

128A..... Power to obtain information or documents.................................... 329

128B..... Inspecting and copying documents................................................ 330

128C..... Retention of documents.................................................................. 330

129........ Exercise by Secretary of powers under section 154....................... 331

Subdivision BC—Pre‑hearing conferences                                                       331

129A..... Pre‑hearing conferences.................................................................. 331

129B..... Powers of SSAT if parties reach agreement................................... 332

Subdivision C—The hearing                                                                                 333

130........ Hearing procedure........................................................................... 333

131........ Hearing in private........................................................................... 333

133........ Restrictions on disclosure of information obtained at hearing........ 333

Subdivision D—Other procedural matters                                                         334

134........ Adjournment of SSAT hearings...................................................... 334

135........ Withdrawal of application for review............................................. 334

136........ Dismissal of an application............................................................ 335

137........ Presiding member at SSAT hearing................................................. 335

138........ Decision of questions before SSAT................................................ 335

139........ Directions as to procedure for hearings.......................................... 336

140........ Costs of review............................................................................... 336

Subdivision E—Notification of decisions                                                            337

141........ Procedure following SSAT decision............................................... 337

141A..... Notice by Secretary of SSAT decision relating to a determination of conditional eligibility for child care benefit by fee reduction etc................................................................................... 339

Subdivision F—Correction of errors in decisions or statements of reasons 340

141B..... Correction of errors in decisions or statements of reasons............. 340

Division 4—Review by the Administrative Appeals Tribunal            341

Subdivision A—Right to review by AAT                                                             341

142........ Review of decisions by AAT......................................................... 341

143........ Variation of decision under section 142 before AAT review completed 342

144........ Review by AAT of other decisions................................................ 343

145........ Variation of decision under section 144 before AAT review completed 345

146........ Settlement of proceedings before the AAT.................................... 346

Subdivision B—Modification of Administrative Appeals Tribunal Act in relation to section 142 review applications                                                                                                       346

147........ Notice of application for review..................................................... 346

148........ Parties to a review by the AAT..................................................... 347

149........ Lodgment of documents with the AAT......................................... 347

150........ Power of AAT to obtain additional information............................ 347

151........ Operation and implementation of the decision under review......... 347

152........ Failure of party to appear.............................................................. 348

Division 5—Automatic review of child care rebate decisions            349

152A..... Decisions relating to entitlement to child care benefit by fee reduction or for past period     349

152B..... Decisions relating to entitlement to child care benefit by single payment/in substitution      349

Division 6—Date of effect of reviews under the child support law  351

152C..... Date of effect of decisions on objections under the child support law that apply for family assistance purposes........................................................................................................ 351

152D..... Date of effect of SSAT reviews under the child support law that apply for family assistance purposes              352

Part 6—Provisions relating to information                                                           354

Division 1—Information gathering                                                                    354

153........ Application of Division.................................................................. 354

154........ General power to obtain information............................................. 354

154A..... Getting details of adjusted taxable income...................................... 357

154B..... Providing information to assist debt recovery................................ 358

155........ Power to obtain information from a person who owes a debt to the Commonwealth            359

156........ Obtaining information about a person who owes a debt to the Commonwealth     359

157........ Obtaining information to verify claims etc..................................... 359

158........ Written notice of requirement......................................................... 362

159........ Offence: failure to comply with requirement................................. 363

159A..... Requesting information for the purposes of a care percentage determination under the child support law            363

160........ Obligations not affected by State or Territory laws....................... 363

Division 2—Confidentiality                                                                                    364

161........ Operation of Division..................................................................... 364

162........ Protection of personal information................................................. 364

163........ Offence: unauthorised access to protected information................. 365

164........ Offence: unauthorised use of protected information...................... 365

165........ Offence: soliciting disclosure of protected information.................. 366

166........ Offence: offering to supply protected information........................ 366

167........ Protection of certain documents etc. from production to court etc. 367

168........ Disclosure of information by Secretary.......................................... 367

169........ Guidelines for exercise of Secretary’s disclosure powers............... 368

169A..... Disclosure of information—child care tax offset............................ 368

169B..... Disclosure of information—education expenses tax offset............ 369

170........ Officer’s declaration....................................................................... 369

Division 3—False statements etc.                                                                     370

Subdivision A—Preliminary                                                                                 370

171........ Application of Division.................................................................. 370

Subdivision B—Offences                                                                                       370

172........ False statement in connection with claim....................................... 370

173........ False statement to deceive.............................................................. 370

174........ False statement or document.......................................................... 371

175........ Obtaining payment where no entitlement...................................... 372

175AA.. Obtaining child care rebate for a quarter if ineligible....................... 372

175A..... Obtaining fee reductions where no conditional eligibility or eligibility 372

176........ Payment or fee reductions obtained by fraud................................. 373

Subdivision C—Penalties                                                                                      375

177........ Penalty for contravention of Subdivision B................................... 375

178........ Repayment of family assistance..................................................... 375

179........ Penalty where person convicted of more than one offence............ 375

Subdivision D—Procedural matters                                                                    376

180........ Joining of charges............................................................................ 376

181........ Particulars of each offence.............................................................. 376

182........ Trial of joined charges..................................................................... 376

183........ Evidentiary effect of Secretary’s certificate................................... 376

184........ Enforcement of court certificate as judgment................................. 377

Part 7—Liability of certain employers and principals for offences        378

Division 1—Interpretation                                                                                     378

185........ State of mind of a person................................................................ 378

188........ Offence........................................................................................... 378

Division 3—Proceedings against non‑corporations                                 379

191........ State of mind of individual.............................................................. 379

192........ Conduct of employee or agent........................................................ 379

193........ Exclusion of imprisonment as penalty for certain offences............ 379

Part 8—Approval of child care services and registered carers                380

Division 1—Approval of child care services                                                380

194........ Application for approval................................................................ 380

195........ Approval of child care services...................................................... 381

195A..... Obligations and permissions of an approved child care service are those of the operator      382

196........ Conditions for continued approval—compliance with rules and laws 382

197........ Conditions for continued approval—child care places limit not to be exceeded     383

198........ Conditions for continued approval—compliance with conditions imposed by Minister       383

199........ Conditions for continued approval—compliance with conditions imposed by Secretary      383

200........ Consequences of breach of conditions for continued approval...... 384

201........ Procedure for imposing a sanction.................................................. 385

201A..... Immediate suspension for certain breaches.................................... 386

201B..... Publicising sanctions or suspensions.............................................. 387

202........ Cancellation.................................................................................... 387

203........ Procedure for cancellation............................................................... 388

204........ Notification of matters affecting eligibility for approval................ 389

204A..... Notifying individuals about effect on entitlement to child care benefit of actions by approved child care services........................................................................................................ 389

205........ Eligibility rules for child care services............................................ 391

206........ Guidelines for allocation of child care places to approved child care services         391

207........ Secretary to allocate child care places............................................. 392

207A..... Reduction of allocation of child care places by unused or unusable places             393

207B..... Effect of reduction in allocation of child care places...................... 394

Division 2—Approval as registered carers                                                  395

209........ Application for approval as registered carer.................................. 395

210........ Approval of registered carers......................................................... 395

211........ Statement that applicant has tax file number.................................. 396

212........ When approval comes into force.................................................... 397

213........ Conditions of continued approval.................................................. 397

214........ Consequences of breach of conditions for continued approval...... 398

215........ Procedure for imposing a sanction.................................................. 399

216........ Cancellation.................................................................................... 399

217........ Procedure for cancellation under subsection 216(3)....................... 400

218........ Notification of matters affecting eligibility for approval................ 400

Part 8A—Obligations, and advances, relating to approved child care services      402

Division 1—Obligations relating to approved child care services   402

219A..... Obligation to notify Secretary of enrolment of a child by an individual  402

219AA.. Obligation to notify Secretary of enrolment where approved child care service eligible         402

219AB.. When and how notice to be given................................................... 403

219AC.. Failure to notify.............................................................................. 404

219AD.. When enrolment ceases................................................................... 405

219AE... Secretary to confirm receipt of notice............................................ 406

219AF... Obligation to update enrolment information.................................. 406

219AG.. Failure to update enrolment information........................................ 408

219B..... Obligation to pass on fee reductions where individual conditionally eligible          408

219BA.. Obligation to pass on fee reductions where approved child care service eligible     410

219BB... Obligation to charge no more than usual fee—rate determined by child care service or Secretary          411

219BC... Obligation to charge no more than usual fee—special grandparent rate  412

219BD.. Obligation to charge no more than usual fee—Jobs Education and Training (JET) Child Care fee assistance        412

219E...... Obligation to provide statements................................................... 413

219F...... Obligation to keep records.............................................................. 416

219G..... Former approved child care service to keep records...................... 418

219H..... Appointment of authorised officers............................................... 419

219J...... Identity cards.................................................................................. 419

219K..... Power to enter premises to inspect records................................... 420

219L...... Occupier to provide authorised officer with access to records and assistance        422

219M.... Obligations if operator decides to stop operating an approved child care service   423

219N..... Obligation to give reports to Secretary........................................... 424

219NA.. Obligation to provide information to Secretary about number of child care places 426

219NB.. Obligation to provide further information to Secretary about enrolled children      427

219P...... Obligations of operators of former approved child care services... 427

Division 2—Weekly payments in respect of fee reduction to approved child care services     429

219Q..... Weekly payments in respect of fee reduction................................ 429

219QA.. Payments and set offs where recalculation results in reduced fee reduction           429

219QB.. Remitting amounts that cannot be passed on................................. 430

Division 3—Enrolment advances                                                                       432

219R..... Election to receive enrolment advance............................................ 432

219RA.. Enrolment advance must be paid if service elects to receive it....... 432

219RB... Amount of enrolment advances...................................................... 433

219RC... Setting off enrolment advance when enrolment ceases................... 433

Division 4—Business continuity payments                                                   434

219RD.. Business continuity payments....................................................... 434

219RE... Setting off business continuity payments...................................... 435

Part 8B—Nominees                                                                                                           436

Division 1—Preliminary                                                                                          436

219TA.. Definitions...................................................................................... 436

Division 2—Appointment of nominees                                                           437

219TB... Appointment of payment nominee................................................ 437

219TC... Appointment of correspondence nominee..................................... 437

219TD.. Provisions relating to appointments............................................... 437

219TE... Suspension and cancellation of nominee appointments................. 438

Division 3—Payments to payment nominee                                                 440

219TF... Payment of amounts to payment nominee..................................... 440

Division 4—Functions and responsibilities of nominees                       441

219TG.. Actions of correspondence nominee on behalf of principal........... 441

219TH.. Giving of notices to correspondence nominee................................ 441

219TI.... Compliance by correspondence nominee....................................... 442

219TJ.... Notification by nominee of matters affecting ability to act as nominee  444

219TK.. Statement by payment nominee regarding disposal of money....... 445

Division 5—Other matters                                                                                    447

219TL... Protection of person against liability for actions of nominee......... 447

219TM. Protection of nominee against criminal liability.............................. 447

219TN.. Duty of nominee to principal......................................................... 447

219TO.. Saving of Secretary’s powers of revocation................................... 447

219TP... Saving of Secretary’s powers to give notices to principal.............. 448

219TQ.. Notification of nominee where notice given to principal................ 448

219TR... Right of nominee to attend with principal...................................... 448

Part 8C—Civil penalties                                                                                                  449

Division 1—Civil penalty orders                                                                        449

219TSB. Ancillary contravention of civil penalty provision........................ 449

219TSC. Civil penalty orders........................................................................ 449

219TSD Maximum penalties for civil penalty provisions............................ 450

219TSE. Proceedings may be heard together................................................. 451

219TSF. Time limit for application for an order........................................... 451

219TSG Civil evidence and procedure rules for civil penalty orders............ 451

219TSGA............ Conduct contravening more than one civil penalty provision  451

219TSGB....................................... Civil proceedings after criminal proceedings  451

219TSGC.................................... Criminal proceedings during civil proceedings  452

219TSGD....................................... Criminal proceedings after civil proceedings  452

219TSGE Evidence given in proceedings for penalty not admissible in criminal proceedings                452

219TSGF Minister requiring person to assist in applications for civil penalty orders           453

Division 2—Infringement notices                                                                      454

219TSH Definitions...................................................................................... 454

219TSI.. When an infringement notice can be given...................................... 454

219TSJ.. Matters to be included in an infringement notice........................... 454

219TSK Amount of penalty......................................................................... 455

219TSL. Withdrawal of an infringement notice............................................. 457

219TSM..................................................... What happens if the penalty is paid  458

219TSN Effect of this Division on civil proceedings.................................... 458

219TSO Appointment of authorised person................................................ 459

219TSP. Regulations..................................................................................... 459

Division 3—Suspension of approved child care service’s approval 460

219TSQ Suspension of approved child care service’s approval................... 460

Part 9—Other matters                                                                                                      461

220........ General administration of family assistance law............................ 461

220A..... Minister requiring person to assist in criminal proceedings........... 461

221........ Delegation....................................................................................... 462

221A..... Committees..................................................................................... 462

222........ Decisions to be in writing............................................................... 463

223........ Secretary may arrange for use of computer programs to make decisions                464

224........ Notice of decisions......................................................................... 464

224A..... Notice of decisions under Part 8 or 8C........................................... 465

225........ Payment of deductions to Commissioner of Taxation................... 465

226........ Setting off family assistance entitlement against tax liability......... 466

227........ Payment of deductions to Child Support Registrar....................... 466

228........ Maximum deduction....................................................................... 467

229........ Judicial notice of certain matters.................................................... 468

230........ Documentary evidence................................................................... 469

231........ Application of family assistance law to unincorporated bodies.... 469

232........ Annual report................................................................................. 470

233........ Appropriation................................................................................ 470

234........ Agreements on administrative arrangements.................................. 470

235........ Regulations..................................................................................... 471

Notes                                                                                                                                          473


An Act to implement A New Tax System by providing assistance to families, and for related purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the A New Tax System (Family Assistance) (Administration) Act 1999.

2  Commencement [see Note 1]

             (1)  Sections 1 and 2 and subsection 235(5) commence on the day on which this Act receives the Royal Assent.

             (2)  The remaining provisions of this Act commence immediately after the commencement of the A New Tax System (Family Assistance) Act 1999.


 

Part 2Interpretation

  

3  Definitions

             (1)  In this Act, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

AAT Act means the Administrative Appeals Tribunal Act 1975.

agency means:

                     (a)  the Department; or

                     (b)  the Commonwealth Services Delivery Agency; or

                     (d)  Medicare Australia.

amount of the entitlement, in respect of child care benefit and a person, means:

                     (a)  in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit by fee reduction in respect of an income year—the amount referred to in section 51B; and

                     (b)  in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit for a past period for care provided by an approved child care service in an income year—the amount referred to in section 52E; and

                     (c)  in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit for a past period for care provided by a registered carer—the amount referred to in section 52F; and

                     (d)  in the case of an individual in respect of whom a determination has been made that the individual is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual—the amount referred to in section 53D; and

                     (e)  in the case of an approved child care service in respect of which a determination has been made that the service is entitled to be paid child care benefit by fee reduction for care provided by the service to a child at risk in respect of a financial year—the amount referred to in section 54B.

approved centre based long day care service means a centre based long day care service in respect of which an approval as a centre based long day care service is in force under Division 1 of Part 8.

approved child care service means:

                     (a)  an approved centre based long day care service; or

                     (b)  an approved family day care service; or

                    (ba)  an approved in‑home care service; or

                     (c)  an approved occasional care service; or

                     (d)  an approved outside school hours care service.

approved family day care service means a family day care service in respect of which an approval as a family day care service is in force under Division 1 of Part 8.

approved in‑home care service means an in‑home care service in respect of which an approval as an in‑home care service is in force under Division 1 of Part 8.

approved occasional care service means an occasional care service in respect of which an approval as an occasional care service is in force under Division 1 of Part 8.

approved outside school hours care service means an outside school hours care service in respect of which an approval as an outside school hours care service is in force under Division 1 of Part 8.

Bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the meaning of the Banking Act 1959.

care percentage decision means a decision to the extent that the decision involves (wholly or partly):

                     (a)  a determination of an individual’s percentage of care for a child that was made, under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act, in relation to a claim for payment of family tax benefit; or

                     (b)  a determination relating to an individual that has effect, under section 35T of that Act, as if it were a determination made under such a provision.

CCB %, in respect of an individual, means:

                     (a)  the CCB % determined (including as a result of a variation) in respect of the individual under Division 4 of Part 3; or

                     (b)  the CCB % otherwise applicable to the individual under Division 4 of Part 3; or

                     (c)  if neither paragraph (a) nor (b) applies to the individual—the CCB % calculated in respect of the individual under subclause 2(2) of Schedule 2 to the Family Assistance Act.

ceases to be enrolled, in relation to a child to whom an approved child care service provides care, has the meaning given by section 219AD.

civil penalty order has the meaning given by section 219TSC.

civil penalty provision means any of the following:

                     (a)  subsection 204(1);

                     (b)  subsection 219AC(1A) or (1B);

                     (c)  subsection 219AG(1A);

                     (d)  subsection 219B(2);

                     (e)  subsection 219BB(1);

                      (f)  subsection 219BC(1);

                     (g)  subsection 219BD(1);

                     (h)  subsection 219E(1) or (7);

                      (j)  subsection 219F(1) or (2);

                     (k)  subsection 219G(1), (3) or (4);

                      (l)  subsection 219L(1), (2) or (3);

                    (m)  subsection 219M(1) or (4);

                     (n)  subsection 219N(5A);

                     (o)  subsection 219NA(4);

                     (p)  subsection 219NB(1);

                     (q)  subsection 219P(1);

                      (r)  subsection 219QB(1);

                      (s)  section 219TSB;

                      (t)  a provision (if any) of the regulations that is declared to be a civil penalty provision in accordance with paragraph 235(1A)(b).

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

early claim day, in relation to:

                     (a)  a claim for payment of family tax benefit by instalment; or

                     (b)  a claim for payment of baby bonus in normal circumstances; or

                     (c)  a claim for payment of maternity immunisation allowance in normal circumstances;

means the day occurring 97 days before the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant. It does not matter whether the child becomes such an FTB child on the expected day.

eligibility rules means rules made under subsection 205(1).

enrolled in relation to a child to whom an approved child care service provides care, has the meaning given by subsections 219A(2) and 219AA(2).

entitled to be paid family tax benefit by instalment: a person is so entitled at a particular time if a determination under section 16 in relation to the person is in force at that time under which the person is entitled to be paid family tax benefit at or after that time.

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

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

family assistance law means any one or more of the following:

                     (a)  this Act;

                     (b)  the Family Assistance Act;

                     (c)  regulations under this Act;

                     (d)  Schedules 5 and 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000.

family tax benefit advance means the advance mentioned in Division 2 of Part 3.

financial institution means a corporation that is an ADI for the purposes of the Banking Act 1959.

head of an agency means:

                     (a)  in the case of the Department—the Secretary; or

                     (b)  in the case of the Commonwealth Services Delivery Agency—the Chief Executive Officer of the Agency; or

                     (d)  in the case of Medicare Australia—the Chief Executive Officer of Medicare Australia.

income tax refund means an amount payable to a person:

                     (a)  in respect of an overpayment of income tax imposed by the Income Tax Act 1986; or

                     (b)  in respect of an overpayment of Medicare levy payable in accordance with Part VIIB of the Income Tax Assessment Act 1936; or

                     (c)  in respect of an overpayment of an amount payable by the person by an assessment made under Part IV of the Income Tax Assessment Act 1936 because of:

                              (i)  subsection 106U(1) of the Higher Education Funding Act 1988; or

                             (ii)  section 154‑60 of the Higher Education Support Act 2003; or

                            (iii)  subsection 12ZN(1) of the Student Assistance Act 1973; or

                     (d)  as a refund of a tax offset that is subject to the refundable tax offset rules under Division 67 of the Income Tax Assessment Act.

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

indexed actual income:

                     (a)  for an individual in relation to family tax benefit—means the amount stated for the individual in a notice under subsection 20B(2); and

                     (b)  for an individual in relation to child care benefit—means the amount stated for the individual in a notice under subsection 55AB(2).

indexed estimate:

                     (a)  for an individual in relation to family tax benefit—means the amount stated for the individual in a notice under subsection 20A(2); and

                     (b)  for an individual in relation to child care benefit—means the amount stated for the individual in a notice under subsection 55AA(2).

instalment amount, in relation to family tax benefit, has the meaning given by subsection 23(2).

instalment period, in relation to family tax benefit, has the meaning given by subsections 23(2) and (3).

officer means an officer of an agency and includes:

                     (a)  the head of the agency; and

                     (b)  an employee of the agency; and

                     (c)  any other person engaged by the agency, under contract or otherwise, to exercise powers, or perform duties or functions, of the agency.

parental leave pay has the same meaning as in the Paid Parental Leave Act 2010.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

primary tax means any amount due to the Commonwealth directly under a taxation law (within the meaning of the Taxation Administration Act 1953), including any such amount that is not yet payable.

Principal Member means the Principal Member of the Social Security Appeals Tribunal.

protected information means:

                     (a)  information about a person that is or was held in the records of the Department or the Commonwealth Services Delivery Agency; or

                     (b)  information about a person obtained by an officer under the family assistance law that is or was held in the records of Medicare Australia; or

                    (ba)  information about a person obtained by an officer under the family assistance law that was held in the records of the Health Insurance Commission; or

                     (c)  information to the effect that there is no information about a person held in the records of an agency.

registered carer means an individual approved as a registered carer under Division 2 of Part 8.

reporting period, in respect of an approved child care service, means:

                     (a)  if paragraph (b) does not apply—a quarter beginning on any 1 January, 1 April, 1 July or 1 October; or

                     (b)  if the service is covered by a determination made under subsection (5)—the period specified in the determination.

schooling %, in respect of an individual, means the schooling % calculated in respect of the individual under subclause 2(2) of Schedule 2 to the Family Assistance Act.

Secretary means the Secretary to the Department.

SSAT means the Social Security Appeals Tribunal.

taxable income %, in respect of an individual, means the taxable income % calculated in respect of the individual under Part 4 of Schedule 2 to the Family Assistance Act.

tax file number has the same meaning as in Part VA of the Income Tax Assessment Act 1936.

TFN claim person:

                     (a)  in relation to a claim for family tax benefit under Subdivision A of Division 1 of Part 3, means:

                              (i)  the claimant; and

                             (ii)  if the claim is for payment of family tax benefit by instalment—the claimant’s partner (if any) at the time of the claim; and

                            (iii)  if the claim is for payment of family tax benefit for a past period—any partner of the claimant during the past period; or

                     (b)  in relation to a claim by a claimant who is an individual for child care benefit under Subdivision A of Division 4 of Part 3, means:

                              (i)  the claimant; and

                             (ii)  if the claim is for payment of child care benefit by fee reduction—the claimant’s partner (if any) at the time of the claim; and

                            (iii)  if the claim is for payment of child care benefit for a past period for care provided by an approved child care service—any partner of the claimant during the past period; or

                     (c)  in relation to a claim for baby bonus or maternity immunisation allowance in normal circumstances under Division 3 of Part 3, means:

                              (i)  the claimant; and

                             (ii)  the claimant’s partner (if any) at the time of the claim.

TFN determination person means:

                     (a)  in relation to family tax benefit and:

                              (i)  a determination under which the claimant is entitled to be paid family tax benefit by instalment—the claimant or any partner of the claimant at any time since the determination was made; or

                             (ii)  a determination under which the claimant is entitled to be paid family tax benefit for a past period—the claimant or any partner of the claimant during the past period; or

                     (b)  in relation to child care benefit and:

                              (i)  a determination under which the claimant who is an individual is conditionally eligible for child care benefit by fee reduction—the claimant or any partner of the claimant at any time since the determination was made; or

                             (ii)  a determination under which the claimant who is an individual is entitled to be paid child care benefit for a past period for care provided by an approved child care service—the claimant or any partner of the claimant during the past period.

TFN substitution person, in relation to a claim:

                     (a)  by an individual for payment of family tax benefit by single payment/in substitution because of the death of another individual based on eligibility for an amount of family tax benefit under section 33 of the Family Assistance Act; or

                     (b)  by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service based on eligibility for an amount of child care benefit under section 46 of the Family Assistance Act; or

                     (c)  by an individual for payment of baby bonus or maternity immunisation allowance in substitution because of the death of another individual;

means the deceased individual and any partner of the deceased individual during the period in respect of which the payment is claimed.

             (2)  Expressions used in this Act that are defined in the Family Assistance Act have the same meaning as in that Act.

             (4)  A reference to a determination is a reference to a determination as originally made or, if the determination has been varied, as varied.

             (5)  For the purposes of paragraph (b) of the definition of reporting period, the Secretary may determine that a specified period that is not a quarter is the reporting period for:

                     (a)  one approved child care service; or

                     (b)  a class of approved child care services.

             (6)  If the Secretary makes a determination under subsection (5), the Secretary must give the service, or services concerned, notice of the reporting period determined in respect of the service.

3A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

4  Approval of use of electronic equipment etc. to do things for the purposes of the family assistance law

             (1)  If, under a provision of the family assistance law, the Secretary or another officer may approve the form, manner or way of:

                     (a)  making or withdrawing any application or claim; or

                     (b)  doing any other thing that is required or permitted to be done for the purposes of that law;

then, without limiting that provision, the Secretary or other officer may approve the making or withdrawing of the application or claim, or the doing of the other thing:

                     (c)  by the use of a telecommunications system or other electronic equipment; or

                     (d)  by the use of software registered with the Secretary.

             (2)  A person may apply to have software registered by the Secretary for the purposes of a particular application, claim or other thing, or a class of applications, claims or other things.

             (3)  The Secretary may, at his or her discretion, register the software for the purposes of that application, claim or other thing, or class of applications, claims or other things.

4A  Rate and amount of CCB by fee reduction may be zero

                   For the purposes of this Act and the Family Assistance Act:

                     (a)  a rate calculated under subsection 50Z(1), or recalculated under subsection 50ZA(1), may be a zero rate; and

                     (b)  an amount calculated under subsection 50Z(1), or recalculated under subsection 50ZA(1), may be a nil amount.


 

Part 3Payment of family assistance

Division 1Family tax benefit

Subdivision AMaking claims

5  Need for a claim

                   The only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision.

6  Who can claim

                   The only persons who can make a claim in accordance with this Subdivision are individuals or approved care organisations.

7  How to claim

             (1)  An individual or approved care organisation (a claimant) may make a claim:

                     (a)  for payment of family tax benefit by instalment; or

                     (b)  for payment of family tax benefit for a past period; or

                     (c)  in the case only of a claimant who is an individual—for payment of family tax benefit by single payment/in substitution because of the death of another individual.

Form etc. of claim

             (2)  To be effective:

                     (a)  a claim must:

                              (i)  be made in a form and manner; and

                             (ii)  contain any information; and

                            (iii)  be accompanied by any documents;

                            required by the Secretary; and

                    (aa)  in the case of a claim for family tax benefit by instalment—the bank account requirement set out in section 7A must be satisfied in relation to the claim; and

                     (b)  in the case of a claim by an individual for payment of family tax benefit by instalment or for a past period—the tax file number requirement in section 8 must be satisfied in relation to the claim; and

                     (c)  in the case of a claim by an individual for payment of family tax benefit in substitution because of the death of another individual—the tax file number requirement in section 8A must be satisfied in relation to the claim.

             (3)  A claim is not effective if it is made before the early claim day.

7A  Bank account details or statement to be provided for claims for family tax benefit by instalment to be effective

             (1)  This section sets out the bank account requirement that must be satisfied in relation to a claim for the purposes of paragraph 7(2)(aa) (which states what is required for certain claims to be effective).

Requirement concerning bank account details

             (2)  The requirement is that the claimant provide:

                     (a)  details of a bank account maintained by the person alone or jointly or in common with someone else into which instalments of family tax benefit are to be paid; or

                     (b)  a statement that the claimant will nominate, and provide details of, such a bank account within 28 days after the claim is made.

How details or statement to be given

             (3)  The bank account details or statement must be provided in the claim.

Exemption from bank account requirement

             (4)  The Secretary may determine that the requirement in subsection (2) does not apply to a claimant if the Secretary considers that it is appropriate to exempt the claimant from the requirement.

8  Tax file number requirement to be satisfied for claims for family tax benefit by instalment or for a past period to be effective

             (1)  This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 7(2)(b) (which states what is required for certain claims to be effective).

             (2)  The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN claim person. However, the requirement does not apply in relation to a TFN claim person if a determination is in force under subsection (7) in relation to the person.

Statement of tax file number

             (3)  The first kind of statement that can be made is a statement of the TFN claim person’s tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.

Statement that TFN claim person does not know what his or her tax file number is etc.

             (4)  The second kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (5)  The third kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

How statement to be given

             (6)  A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.

Exemption from tax file number requirement

             (7)  The Secretary may determine that the requirement in subsection (2) does not apply to a TFN claim person if:

                     (a)  the person is, or was, the claimant’s partner; and

                     (b)  the claimant cannot obtain from the person:

                              (i)  the person’s tax file number; or

                             (ii)  a statement by the person under subsection (4) or (5).

8A  Tax file number requirement to be satisfied for claim in substitution because of the death of another individual to be effective

             (1)  This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 7(2)(c) (which states what is required for claims in substitution because of the death of another individual to be effective).

             (2)  The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN substitution person.

Statement of tax file number

             (3)  The first kind of statement that can be made is a statement of a TFN substitution person’s tax file number. Regardless of whom the TFN substitution person is, this kind of statement can be made by the claimant only.

Statement that TFN substitution person does not know what his or her tax file number is

             (4)  The second kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual’s partner during the period in respect of which the payment is claimed to the effect that the TFN substitution person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (5)  The third kind of statement that can be made is a statement by the TFN substitution person who was the deceased individual’s partner during the period in respect of which the payment is claimed to the effect that the TFN substitution person:

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

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

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

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

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

How statement to be given

             (6)  A statement made by the claimant must be made in the claim. A statement made by a TFN substitution person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.

Exemption from tax file number requirement

             (7)  The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant does not know the person’s TFN.

             (8)  The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant cannot obtain a statement referred to in subsection (4) or (5) in respect of the person.

9  Restrictions on claims for payment of family tax benefit by instalment

                   A claim for payment of family tax benefit by instalment is not effective if, at the time (the determination time) when the claim would be determined:

                     (a)  the claimant has previously made a claim for payment of family tax benefit by instalment and that claim has not yet been determined; or

                     (b)  the claimant is already entitled to be paid family tax benefit by instalment; or

                     (c)  the following apply:

                              (i)  a determination under section 16 is in force under which the claimant is not, because of a variation of the determination under subsection 27(5), 27A(3), 28A(2), 28B(2), 28B(3), 29(2), 30(2), 30A(2) or 30B(2), entitled to be paid family tax benefit at the determination time or at any later time;

                             (ii)  the determination time is before the end of the income year following the one in which the variation mentioned in that subsection took effect.

10  Restrictions on claims for payment of family tax benefit for a past period

Restriction where previous claim or instalment determination

             (1)  A claim for payment of family tax benefit for a past period is not effective if:

                     (a)  the claimant has previously made a claim for payment of family tax benefit for any of the past period (whether or not the claim has yet been determined); or

                     (b)  the claimant was entitled to be paid family tax benefit by instalment at any time in the past period; or

                     (c)  the following apply:

                              (i)  a determination under section 16 was in force at any time in the past period under which the claimant was not, because of a variation of the determination under subsection 27(5), 27A(3), 28A(2), 28B(2), 28B(3), 29(2), 30(2), 30A(2) or 30B(2), entitled to be paid family tax benefit;

                             (ii)  the claim is made before the end of the income year following the one in which the variation mentioned in that subsection took effect.

Claim must relate to one income year and not be made after the end of the next income year

             (2)  A claim for payment of family tax benefit for a past period is not effective if:

                     (a)  the period does not fall wholly within one income year; or

                     (b)  the period does fall wholly within one income year but the claim is made after the end of the 2 income years immediately following that income year.

Claim must be accompanied by instalment claim in some circumstances

             (3)  A claim for payment of family tax benefit for a past period is not effective if:

                     (a)  the period occurs in the income year in which the claim is made; and

                     (b)  at the time the claim is made, the claimant is eligible for family tax benefit; and

                     (c)  at the time the claim is made, the claimant is not prevented by section 9 from making an effective claim for payment of family tax benefit by instalment; and

                     (d)  the claim is not accompanied by a claim for payment of family tax benefit by instalment.

             (4)  A claim for payment of family tax benefit for a past period is not effective if:

                     (a)  the period occurs in either of the 2 income years before the one in which the claim is made; and

                     (b)  if the claimant is an individual—at any time during the past period, the claimant, or the claimant’s partner, received a social security benefit, social security pension, service pension or income support supplement; and

                     (c)  at the time the claim is made, the claimant is eligible for family tax benefit; and

                     (d)  if the claimant is an individual—at the time the claim is made, the claimant, or the claimant’s partner, is receiving a social security benefit, social security pension, service pension or income support supplement; and

                     (e)  at the time the claim is made, the claimant is not prevented by section 9 from making an effective claim for payment of family tax benefit by instalment; and

                      (f)  the claim is not accompanied by a claim for payment of family tax benefit by instalment.

             (5)  Paragraph (4)(f) does not apply if, at the time the claim for payment of family tax benefit for a past period is made, subsection 32AE(2) or (3) applies in respect of the claimant or the claimant’s partner.

11  Restrictions on bereavement claims

Entitlement must not already have been determined, or be awaiting determination, on a previous claim

             (1)  A claim for payment of family tax benefit by single payment/in substitution because of the death of another individual is not effective if the claimant has previously made a claim for payment of family tax benefit because of the death of that individual (whether or not the claim has yet been determined).

Single payment/substitution claims must relate to current or previous income year

             (2)  If a claim for payment of family tax benefit by single payment/in substitution because of the death of another individual is based on eligibility for an amount of family tax benefit under subsection 32(2) or section 33 of the Family Assistance Act, the claim is not effective if it is made after the end of the income year following the one in which the death mentioned in that provision occurred.

12  Claim may be withdrawn or varied

             (1)  A claimant may withdraw or vary a claim before the claim is determined.

             (2)  The claimant may only do so in a manner determined by the Secretary.

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

Subdivision BDetermination of claims etc.

13  Secretary must determine claim

             (1)  If an effective claim is made, the Secretary must determine the claim in accordance with this Subdivision. If a claim is not effective, it is taken not to have been made.

14  Restriction on determining claim where income tax assessment not made

             (1)  If, in relation to a claim for payment of family tax benefit made by an individual:

                     (a)  the claim is for payment of that benefit for a past period; and

                     (b)  the past period falls in an income year (the past period income year) that is one of the 2 income years before the one in which the claim is made; and

                     (c)  either or both of subsections (2) and (3) apply;

the Secretary can only determine the claim if each assessment concerned has been made.

             (2)  This subsection applies if:

                     (a)  the claimant is required to lodge an income tax return for the past period income year; and

                     (b)  at the time the claim is made, an assessment has not been made under the Income Tax Assessment Act 1936 of the tax payable on the claimant’s taxable income for the past period income year.

             (3)  This subsection applies if:

                     (a)  at the time the claim is made, a person is the claimant’s partner and that person was the claimant’s partner at any time during the past period; and

                     (b)  that person is required to lodge an income tax return for the past period income year; and

                     (c)  at the time the claim is made, an assessment has not been made under the Income Tax Assessment Act 1936 of the tax payable on that person’s taxable income for the past period income year.

15  Restriction on determining claim where tax file number not provided etc.

Statement that TFN claim person or TFN substitution person does not know what his or her tax file number is etc.

             (1)  If:

                     (a)  a TFN claim person makes a statement of the kind set out in subsection 8(4); or

                     (b)  a TFN substitution person makes a statement of the kind set out in subsection 8A(4);

the Secretary can only determine the claim concerned if:

                     (c)  within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

                     (d)  28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.

Statement that an application for a tax file number is pending

             (2)  If:

                     (a)  a TFN claim person makes a statement of the kind set out in subsection 8(5); or

                     (b)  a TFN substitution person makes a statement of the kind set out in subsection 8A(5);

the Secretary can only determine the claim concerned if:

                     (c)  within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

                     (d)  28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:

                              (i)  the person has not applied for a tax file number; or

                             (ii)  an application by the person for a tax file number has been refused; or

                            (iii)  the person has withdrawn an application for a tax file number.

             (3)  If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

15A  Restriction on determining claim where bank account details not provided

             (1)  If a person makes a statement of the kind set out in paragraph 7A(2)(b), the Secretary can only determine the claim concerned if, within 28 days after the claim is made, the person nominates, and provides details of, a bank account of a kind referred to in paragraph 7A(2)(a) into which instalments of family tax benefit are to be paid.

             (2)  If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

15B  Deferral of determination of early claims

                   If:

                     (a)  an individual makes a claim for payment of family tax benefit by instalment in respect of a child before the child is an FTB child of the claimant; and

                     (b)  the Secretary is satisfied that, at the time the determination would otherwise be made, the claimant would be likely to be eligible for family tax benefit in respect of the child if the child were to become an FTB child of the claimant;

the Secretary must not determine the claim for family tax benefit until the earlier of the following:

                     (c)  the time when the child becomes an FTB child of the claimant, or is stillborn;

                     (d)  28 days after the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant.

16  Determination of instalment entitlement claim

             (1)  This section applies if the claim is one for payment of family tax benefit by instalment.

             (2)  If the Secretary is satisfied that the claimant is, at the time the Secretary makes the determination on the claim, eligible for family tax benefit in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act, the Secretary must determine that the claimant is entitled to be paid family tax benefit for each day on which the determination is in force at the daily rate at which the Secretary considers the claimant to be eligible.

Additional entitlement in subsection (2) cases

             (4)  If:

                     (a)  the Secretary is satisfied as mentioned in subsection (2); and

                     (b)  the Secretary is also satisfied that the claimant was eligible for family tax benefit in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act during the whole or part of the period since the claim was made;

the Secretary must determine that the claimant is entitled to be paid that amount of family tax benefit.

Instalments where bereavement eligibility—remaining FTB or regular care children

             (5)  If the Secretary is satisfied that, at the time of making the determination on the claim:

                     (a)  the claimant is eligible for family tax benefit in accordance with section 31 of the Family Assistance Act; and

                     (b)  assuming subsection (4) of that section were disregarded, the claimant would be eligible for family tax benefit under Subdivision A of Division 1 of Part 3 of that Act;

the Secretary must determine that:

                     (c)  the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant to be eligible:

                              (i)  for each day on which the determination is in force that occurs during the period to which subsection 31(2) of that Act applies; and

                             (ii)  for each day, before the determination came into force, that occurred during that period; and

                     (d)  the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant would be eligible, on the assumption in paragraph (b) of this subsection, for each day while the determination is in force that occurs after the last day on which the claimant is entitled to be paid family tax benefit in accordance with paragraph (c) of this subsection.

Instalments where bereavement eligibility— no remaining FTB or regular care children

             (6)  If the Secretary is satisfied that, at the time of making the determination on the claim:

                     (a)  the claimant is eligible for family tax benefit in accordance with section 31 of the Family Assistance Act; and

                     (b)  assuming subsection (4) of that section were disregarded, the claimant would not be eligible for family tax benefit under Subdivision A of Division 1 of Part 3 of that Act;

the Secretary must determine that the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant to be eligible:

                     (c)  for each day on which the determination is in force that occurs during the period to which subsection 31(2) of that Act applies; and

                     (d)  for each day, before the determination came into force, that occurred during that period.

17  Determination of past period entitlement claim

                   If:

                     (a)  the claim is one for payment of family tax benefit for a past period; and

                     (b)  the Secretary is satisfied that the claimant was eligible for family tax benefit:

                              (i)  for the whole of the period in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act; or

                             (ii)  for part of the period in accordance with Subdivision A of that Division and for the remainder of the period in accordance with section 31 of that Act;

the Secretary must determine that the claimant is entitled to be paid family tax benefit for the past period.

18  Determination of bereavement entitlement claim

                   If:

                     (a)  the claim is one for payment of family tax benefit by single payment/in substitution because of the death of another individual; and

                     (b)  the Secretary is satisfied that the claimant is eligible for family tax benefit under section 32 or 33 of the Family Assistance Act;

the Secretary must determine that the claimant is entitled to be paid the family tax benefit.

19  Determination that no entitlement

                   If the Secretary is not satisfied as mentioned in section 16, 17 or 18, the Secretary must determine:

                     (a)  if the determination is on a claim for payment of family tax benefit by instalment—that the claimant is not entitled to be paid family tax benefit for each day on which the determination is in force; or

                     (b)  in any other case—that the claimant is not entitled to be paid family tax benefit for the past period or because of the death of the other individual, as the case requires.

20  Determination of rate may be based on estimate, indexed estimate or indexed actual income

             (1)  If:

                     (a)  an individual’s eligibility for, or rate of, family tax benefit is required to be determined for the purposes of this Division or Division 3; and

                     (b)  information about the amount of adjusted taxable income needed for the determination of the eligibility or rate is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and

                     (c)  the individual or, if the individual has died, another individual making a claim under this Division or Division 3 gives the Secretary an estimate of the amount needed; and

                     (d)  the Secretary considers the estimate to be reasonable; and

                     (e)  since the estimate was given, the Secretary has not given the individual a notice under subsection 20A(2) or 20B(2) with a start day that has arrived or passed;

the Secretary may determine the individual’s eligibility for, or rate of, family tax benefit on the basis of the estimate.

             (2)  If:

                     (a)  an estimate is given to the Secretary for the purposes of subsection (1); and

                     (b)  the Secretary does not consider the estimate reasonable;

the following paragraphs apply:

                     (c)  the eligibility or rate cannot be determined; and

                     (d)  if the determination of the eligibility or rate is required for the purposes of this Division, section 19 applies.

          (2A)  If:

                     (a)  an individual’s eligibility for, or rate of, family tax benefit is required to be determined for the purposes of this Division or Division 3; and

                     (b)  information about the amount of adjusted taxable income needed for the determination of the eligibility or rate is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and

                     (c)  the Secretary has given the individual a notice under subsection 20A(2) or 20B(2) with a start day that has arrived or passed; and

                     (d)  since the notice was given, the individual has not given the Secretary an estimate of the individual’s adjusted taxable income that the Secretary considers to be reasonable;

the Secretary may determine the individual’s eligibility for, or rate of, family tax benefit on the basis of the indexed estimate or indexed actual income stated in the notice (or, if the Secretary has given the individual more than one such notice—the notice with the most recent start day).

Note:          Section 20C affects the meaning of this provision for members of couples.

             (3)  If:

                     (a)  an individual’s rate of family tax benefit is required to be calculated for the purpose of making a determination under this Division; and

                     (b)  information about the amount of maintenance income needed for the calculation of the rate is not available;

the Secretary may determine the individual’s rate of family tax benefit on the basis of an estimate by the Secretary of the amount needed.

20A  Indexed estimates

             (1)  The Secretary may calculate an indexed estimate for an individual under subsection (5), with a start day chosen by the Secretary, if:

                     (a)  the individual is a claimant, or the partner of a claimant, for family tax benefit; and

                     (b)  a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (c)  the determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of a reasonable estimate of the claimant’s adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant.

Note:          Section 20C affects the meaning of paragraph (c) for members of couples.

             (2)  If the Secretary calculates an indexed estimate for the individual, the Secretary may give the claimant a notice:

                     (a)  stating the indexed estimate for the individual; and

                     (b)  specifying the start day used in the Secretary’s calculation (which must be at least 14 days after the day on which the notice is given).

             (3)  The Secretary must not give a notice under subsection (2) stating an indexed estimate for the individual with a start day in an income year if the Secretary has already given a notice under subsection (2) stating an indexed estimate for that individual with a start day in the same income year.

             (4)  A notice given to a claimant under subsection (2) stating an indexed estimate for an individual has no effect if, before the start day specified in the notice for the indexed estimate, the Secretary gives the claimant a notice under subsection 20B(2) stating an indexed actual income for the same individual. Any such notice under subsection 20B(2) must specify a start day that is no earlier than the start day specified in the superseded notice.

             (5)  Calculate an indexed estimate (which may be nil) for the individual by multiplying the individual’s current ATI number (see subsection (6)) by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

             (6)  For the purposes of subsection (5), the individual’s current ATI number is:

                     (a)  if, at the time of calculation, the Secretary has given the claimant a notice under subsection 20B(2) stating an indexed actual income for the individual with a start day that has not arrived—the indexed actual income stated in the notice; or

                     (b)  if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 20 (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act); or

                     (c)  if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 20 if the individual were the claimant (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act).

             (7)  A notice under subsection (2) is not a legislative instrument.

20B  Indexed actual incomes

             (1)  The Secretary may calculate an indexed actual income for an individual under subsection (4), with a start day chosen by the Secretary, if:

                     (a)  the individual is a claimant for, or the partner of a claimant for, family tax benefit; and

                     (b)  a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (c)  the determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of an indexed estimate for the claimant or an indexed actual income for the claimant; and

                     (d)  since the claimant was last given a notice under subsection 20A(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for an individual, the claimant has not given the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

                     (e)  the adjusted taxable income for an income year (actual income) of the individual (disregarding the effect for couples of clause 3 of Schedule 3 to the Family Assistance Act) becomes known to the Secretary and it is the most recent income year for which the individual’s actual income is known to the Secretary.

Note:          Section 20C affects the meaning of paragraph (1)(c) for members of couples.

             (2)  If:

                     (a)  the Secretary calculates an indexed actual income for the individual; and

                     (b)  the indexed actual income is greater than the individual’s current ATI number (see subsection (5));

the Secretary may give the claimant a notice:

                     (c)  stating the indexed actual income for the individual; and

                     (d)  specifying the start day used in the Secretary’s calculation (which must be at least 14 days after the day on which the notice is given).

             (3)  A notice given to a claimant under subsection (2) stating an indexed actual income for an individual has no effect if, before the start day specified in the notice, the Secretary gives the claimant another notice under that subsection or a notice under subsection 20A(2) stating an indexed estimate or indexed actual income for the same individual. Any other such notice must specify a start day that is no earlier than the start day specified in the superseded notice.

             (4)  Calculate an indexed actual income (which may be nil) for the individual by multiplying the actual income of the individual which became known to the Secretary by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

             (5)  For the purposes of paragraph (2)(b), the individual’s current ATI number is:

                     (a)  if, at the time of calculation, the Secretary has given the claimant a notice under subsection 20A(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for the individual with a start day that has not arrived—the indexed estimate or indexed actual income stated in the notice; or

                     (b)  if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 20 (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act); or

                     (c)  if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 20 if the individual were the claimant (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act).

             (6)  A notice under subsection (2) is not a legislative instrument.

20C  Indexed estimates and indexed actual incomes of members of couples

Section applies to couples

             (1)  This section applies in relation to any individual who is a member of a couple.

Family tax benefit Part A

             (2)  For the purposes of the Family Assistance Act other than Part 4 of Schedule 1, any reference in this Act to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (3).

             (3)  The reference is taken to be a reference to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with:

                     (a)  the most recent indexed estimate or indexed actual income for the individual’s partner (see subsection (6)); or

                     (b)  if there is no such indexed estimate or indexed actual income—a reasonable estimate of the adjusted taxable income of the individual’s partner (disregarding the effect of clause 3 of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.

Family tax benefit Part B

             (4)  For the purposes of Part 4 of Schedule 1 to the Family Assistance Act, any reference in this Act to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (5).

             (5)  The reference is taken to be a reference to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of the lower of these:

                     (a)  the indexed estimate or indexed actual income for that individual or stated in that notice;

                     (b)  the most recent indexed estimate or indexed actual income for the individual’s partner (see subsection (6)) or, if there is no such indexed estimate or indexed actual income, a reasonable estimate of the adjusted taxable income of the individual’s partner (disregarding the effect of clause 3 of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.

If the amounts in paragraphs (a) and (b) are equal, the reference is taken to be a reference to:

                     (c)  if the individual is the claimant for family tax benefit—the amount in paragraph (a); or

                     (d)  if the individual is the partner of the claimant for family tax benefit—the amount in paragraph (b).

Most recent indexed estimate or indexed actual income for individual’s partner

             (6)  In subsections (3) and (5), the most recent indexed estimate or indexed actual income for the individual’s partner is the indexed estimate or indexed actual income for the individual’s partner stated in a notice given to:

                     (a)  if the individual is the claimant for family tax benefit—the individual; or

                     (b)  if the individual is the partner of the claimant for family tax benefit—the individual’s partner;

under subsection 20A(2) or 20B(2) with a start day that has arrived or passed (or, if the Secretary has given more than one such notice—the notice with the most recent start day).

21  When determination is in force

             (1)  Subject to this section, a determination under this Division comes into force when it is made and remains in force at all times afterwards.

Effect of later determination on certain instalment determinations

             (2)  If, on a particular day, a determination is in force:

                     (a)  under section 16, where under the determination the claimant is not entitled to be paid family tax benefit on the particular day or any later day; or

                     (b)  under paragraph 19(a);

the determination ceases to be in force on the particular day if either:

                     (c)  another determination is made on the particular day on a claim by the claimant for payment of family tax benefit by instalment; or

                     (d)  another determination is made after the particular day on a claim by the claimant for payment of family tax benefit for a past period, where the particular day occurs within the past period.

Request for cessation of instalment determination

             (3)  A determination in force under section 16 on a particular day ceases to be in force if:

                     (a)  under the determination, the claimant is entitled to be paid family tax benefit on the particular day or any later day; and

                     (b)  on the particular day, the claimant is not receiving a social security pension, social security benefit, service pension or income support supplement; and

                     (c)  on the particular day, the claimant advises the Secretary, in the form and manner required by the Secretary, that the claimant wishes the determination:

                              (i)  to cease to be in force from the particular day or from a specified later day; or

                             (ii)  to have ceased to be in force at the end of the most recent instalment period before the particular day.

The determination ceases to be in force in accordance with the advice.

22  Notice of determination

             (1)  The Secretary must give notice of a determination under this Subdivision (except subsection 23(3B)) to the claimant, stating:

                     (a)  whether the claimant is entitled to be paid family tax benefit under the determination; and

                     (b)  if the claimant is so entitled:

                              (i)  if the claimant is entitled to be paid family tax benefit by instalment—the daily rate of the benefit, the days on which the entitlement arises and how it is to be paid; or

                             (ii)  in any other case—the amount of the benefit and how it is to be paid; and

                     (c)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (2)  The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.

23  Payment of family tax benefit by instalment

             (1)  Subject to this section, if the claimant is entitled to be paid family tax benefit by instalment, the Secretary must, after each instalment period ending after the determination is made, pay the instalment amount to the claimant, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

Instalment amount and instalment period

             (2)  In subsection (1):

instalment amount means the amount accruing for the days in the instalment period for which an entitlement to be paid family tax benefit arose under the determination.

instalment period means, subject to subsection (3):

                     (a)  the period of 14 days beginning on the day the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included, and each successive period of 14 days; or

                     (b)  if the claimant:

                              (i)  is included in a class of persons specified under subsection (3A); and

                             (ii)  is the subject of a determination in force under subsection (3B);

                            the period of 7 days beginning on the day the Secretary considers appropriate, and each successive period of 7 days.

Changing the day on which later instalment periods begin

             (3)  The Secretary may change the day on which successive instalment periods are to begin in relation to a claimant or class of claimants. If the Secretary does so, the last instalment period before the first day on which the new instalment periods are to begin is shortened so that it ends immediately before that day.

Persons who may have 7‑day instalment periods

          (3A)  The Minister may by legislative instrument specify a class of persons any of whom the Secretary may determine to have 7‑day instalment periods.

          (3B)  The Secretary may determine that a claimant who is a member of a class of persons specified under subsection (3A) has instalment periods of 7 days.

          (3C)  The Secretary must revoke a determination made under subsection (3B) if he or she is satisfied that the claimant is no longer a member of a class of persons specified under subsection (3A).

          (3D)  Subsection (3C) does not limit the operation of subsection 33(3) of the Acts Interpretation Act 1901 in relation to subsection (3B) of this section.

Secretary may make direction as to the manner of making payments

             (5)  The Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

Early payment of FTB instalment in particular cases

          (5A)  If the Secretary is satisfied that an instalment amount that would, apart from this subsection, be paid under this section on a particular day cannot reasonably be paid on that day, the Secretary may direct that the instalment amount be paid on an earlier day.

             (6)  This section is subject to Subdivision CA of this Division, Part 4, Division 3 of Part 8B and sections 225 and 226.

24  Other payments of family tax benefit

             (1)  If the claimant is entitled to be paid family tax benefit under a determination on a claim for payment of family tax benefit:

                     (a)  for a past period; or

                     (b)  by single payment/in substitution because of the death of another individual;

the Secretary must pay the amount to the claimant, at such time and in such manner as the Secretary considers appropriate.

             (4)  This section is subject to Subdivision CA of this Division, Part 4, Division 3 of Part 8B and sections 225 and 226.

25  Obligation to notify change of circumstances

             (1)  If, after a claimant becomes entitled to be paid family tax benefit by instalment:

                     (a)  anything happens that causes the claimant to cease to be eligible for family tax benefit on the days for which the claimant will become entitled to be paid the benefit under the determination concerned, or to become eligible for a daily rate of family tax benefit that is less than that specified in the determination; or

                     (b)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

             (2)  Strict liability applies to the element of an offence against subsection (1) that a notice is a notice given under section 25A.

             (3)  If, after the Secretary determines under subsection 23(3B) that a claimant has instalment periods of 7 days:

                             (a)  anything happens that causes the claimant to cease to be a member of a class of persons specified under subsection 23(3A); or

                             (b)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

             (4)  If a thing that is described in both subsections (1) and (3) happens or is likely to happen, subsection (1) applies in relation to the thing but subsection (3) does not.

25A  Secretary’s power to approve a manner of notification

             (1)  The Secretary must approve a manner of notification that a claimant is to use when notifying the Secretary of a thing under section 25.

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

26  Secretary’s power to request tax file numbers

             (1)  If:

                     (a)  a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; or

                     (b)  a determination is in force under which the claimant is entitled to be paid family tax benefit for a past period;

the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, a written statement, in relation to a specified TFN determination person, of whichever of the kinds set out in subsection (2), (3) or (4) the claimant chooses.

Statement of tax file number

             (2)  The first kind of statement that can be made is a statement of the TFN determination person’s tax file number. Regardless of who the TFN determination person is, this kind of statement can be made by the claimant only.

Statement that TFN person does not know what his or her tax file number is etc.

             (3)  The second kind of statement that can be made is a statement by the TFN determination person that the person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (4)  The third kind of statement that can be made is a statement by the TFN determination person that the person:

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

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

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

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

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

26A  Secretary’s power to require bank account details

                   If:

                     (a)  a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the claimant has not nominated a bank account into which instalments of family tax benefit are to be paid;

the Secretary may require the claimant to give the Secretary, within 28 days of the requirement being made, details of a bank account maintained by the claimant alone, or jointly or in common with someone else, into which instalments of family tax benefit are to be paid.

Subdivision CVariation of determinations

27  Variation of instalment and past period determinations where failure to provide tax file number

Non‑compliance with request

             (1)  If:

                     (a)  the Secretary makes a request under subsection 26(1); and

                     (b)  the claimant does not comply with the request within 28 days of the request being made;

then, subject to subsection (2), the consequence in subsection (5) applies.

Exemption from request under subsection 26(1)

             (2)  The Secretary may determine that the consequence in subsection (5) does not apply if:

                     (a)  the TFN determination person concerned is or was the claimant’s partner; and

                     (b)  the claimant cannot obtain from the person:

                              (i)  the person’s tax file number; or

                             (ii)  a statement by the person under subsection 26(3) or (4).

Statement made by TFN determination person under subsection 26(3)

             (3)  If:

                     (a)  the Secretary makes a request under subsection 26(1); and

                     (b)  by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(3); and

                     (c)  the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has no tax file number;

the consequence in subsection (5) applies.

Statement made by TFN determination person under subsection 26(4)

             (4)  If:

                     (a)  the Secretary makes a request under subsection 26(1); and

                     (b)  by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(4); and

                     (c)  the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (5) applies.

Statement made by TFN claim person under subsection 8(4)

          (4A)  If:

                     (a)  a TFN claim person has made a statement of the kind set out in subsection 8(4); and

                     (b)  a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment or for a past period; and

                     (c)  the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;

the consequence in subsection (5) applies.

Statement made by TFN claim person under subsection 8(5)

          (4B)  If:

                     (a)  a TFN claim person has made a statement of the kind set out in subsection 8(5); and

                     (b)  a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment or for a past period; and

                     (c)  the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (5) applies.

Variation of determination

             (5)  For the purposes of subsection (1), (3), (4), (4A) or (4B), the consequence is that the Secretary may:

                     (a)  if the determination is one under which the claimant is entitled to be paid family tax benefit by instalment—vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place; or

                     (b)  if the determination is one under which the claimant is entitled to be paid family tax benefit for a past period—vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day in the past period.

Consequence of Secretary later becoming aware of tax file number

             (6)  If:

                     (a)  under subsection (5), the Secretary varies the determination; and

                     (b)  the Secretary finds out the tax file number of the TFN determination person or TFN claim person, as the case requires:

                              (i)  if paragraph (5)(a) applies—before the end of the income year following the one in which the variation took effect; or

                             (ii)  if paragraph (5)(b) applies—at any time after the variation took place;

the Secretary must vary the determination to undo the effect mentioned in subsection (5).

27A  Variation of instalment entitlement determination where failure to provide bank account details

Non‑compliance with requirement

             (1)  If:

                     (a)  the claimant is subject to a requirement under section 26A; and

                     (b)  the claimant does not comply with the requirement within 28 days of the requirement being made;

then, subject to subsection (2), the consequence in subsection (3) applies.

Exemption from requirement under section 26A

             (2)  The Secretary may determine that the consequence in subsection (3) does not apply if the Secretary considers that it is appropriate to exempt the claimant from the consequence.

Variation of determination

             (3)  For the purposes of subsection (1), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

Consequence of Secretary later becoming aware of bank account details

             (4)  If:

                     (a)  under subsection (3), the Secretary varies the determination; and

                     (b)  the Secretary finds out the bank account details of the claimant concerned before the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (3).

28  Variation of instalment and past period entitlement determinations where income tax return not lodged

             (1)  This section applies if:

                     (a)  a determination under section 16 or 17 is in force at, or was in force before, a particular time; and

                     (b)  there are one or more days (the cancellation days) before the particular time in respect of which the following conditions are satisfied:

                              (i)  the cancellation days occur in the income year (the cancellation income year) that began 2 years before the beginning of the income year in which the particular time occurs;

                             (ii)  the claimant is entitled to be paid family tax benefit under the determination for the cancellation days;

                            (iii)  the claimant, or the claimant’s partner at the particular time (if he or she was also the claimant’s partner at some time in the cancellation income year), or both, are required to lodge an income tax return for the cancellation income year but have not done so by the particular time;

                            (iv)  by the particular time, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income for the cancellation income year of everyone to whom subparagraph (iii) applies.

Consequence of section applying

             (2)  If this section applies, the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.

Consequence where income tax returns are later lodged

             (3)  If:

                     (a)  after the Secretary varies the determination under subsection (2) or (6), an assessment is made under the Income Tax Assessment Act 1936 for the cancellation income year for everyone (the taxpayers involved):

                              (i)  who was required to lodge an income tax return as mentioned in subparagraph (1)(b)(iii); and

                             (ii)  in respect of whom an assessment had not been made before the determination was varied; and

                     (b)  the Secretary is satisfied that the claimant was eligible for an amount (the recalculated amount) of family tax benefit for the cancellation days; and

                    (ba)  subsection (4) (which is about when the claimant and the claimant’s partner separate after the determination is varied) does not apply;

the Secretary must again vary the determination so that it has the effect that, for the cancellation days, the claimant is entitled to be paid:

                     (c)  if income tax returns for the cancellation income year for the taxpayers involved were lodged with the Commissioner of Taxation during the income year that began 2 years after the beginning of the cancellation income year—the recalculated amount; or

                     (d)  in any other case—the lesser of:

                              (i)  the recalculated amount; and

                             (ii)  the amount that the claimant was entitled to be paid before the variation under subsection (2) was made.

Consequence where claimant and partner separate after determination varied

             (4)  After the Secretary varies the determination under subsection (2) or (6), the Secretary must again vary the determination if the following conditions are met:

                     (a)  the claimant and the partner mentioned in subparagraph (1)(b)(iii) (the ex‑partner) ceased to be members of the same couple during the income year (the later income year) that began 2 years after the beginning of the cancellation income year;

                     (b)  at the time when the Secretary would vary the determination under this subsection, the claimant and the ex‑partner are not members of the same couple;

                     (c)  if the claimant was required to lodge an income tax return for the cancellation income year—an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant’s taxable income for the cancellation income year;

                     (d)  in any case—the ex‑partner was required to lodge an income tax return for the cancellation income year but still had not done so by:

                              (i)  if paragraph (c) applies—the later of the time when the claimant and the ex‑partner last ceased to be members of the same couple and the time when the assessment of the claimant’s taxable income is made; or

                             (ii)  otherwise—the time when the claimant and the ex‑partner last ceased to be members of the same couple;

                     (e)  the Secretary is satisfied that the claimant was eligible for an amount (the recalculated amount) of family tax benefit for the cancellation days.

             (5)  The Secretary must vary the determination under subsection (4) so that it has the effect that, for the cancellation days, the claimant is entitled to be paid:

                     (a)  if:

                              (i)  the claimant was required to lodge an income tax return for the cancellation income year and the claimant lodged the return with the Commissioner of Taxation before the end of the later income year; or

                             (ii)  the claimant was not required to lodge an income tax return for the cancellation income year;

                            the recalculated amount; or

                     (b)  in any other case—the lesser of:

                              (i)  the recalculated amount; and

                             (ii)  the amount that the claimant was entitled to be paid before the variation under subsection (2) or (6) was made.

Consequence where claimant and ex‑partner reconcile after separation

             (6)  If:

                     (a)  after the Secretary varies the determination under subsection (4), the claimant and the ex‑partner become members of the same couple again; and

                     (b)  the ex‑partner has still not lodged an income tax return for the cancellation income year by the time when the claimant and the ex‑partner become members of the same couple;

the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.

28A  Variation of instalment entitlement determination where estimate of an amount is not reasonable

             (1)  This section applies if:

                     (a)  a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the claimant gives the Secretary an estimate of the amount of adjusted taxable income needed by the Secretary to determine the claimant’s eligibility for, or rate of, family tax benefit; and

                     (c)  the Secretary does not consider the estimate to be reasonable.

Consequence of section applying

             (2)  If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

Consequence of later provision of reasonable estimate or Secretary finding out the actual amount

             (3)  If:

                     (a)  under subsection (2), the Secretary varies the determination; and

                     (b)  either:

                              (i)  the claimant provides an estimate of the amount that the Secretary considers reasonable by the end of the income year following the one in which the variation took effect; or

                             (ii)  the Secretary finds out the actual amount needed to determine the claimant’s eligibility for, or rate of, family tax benefit (whether from the claimant or someone else) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (2).

28B  Variation of instalment entitlement determination where claim made for another payment type

             (1)  This section applies if:

                     (a)  a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment in respect of an individual; and

                     (b)  the individual is any of the following:

                              (i)  an FTB child of the claimant;

                             (ii)  a regular care child who is also a rent assistance child of the claimant;

                            (iii)  an individual in respect of whom an approved care organisation is the claimant; and

                     (c)  the individual makes a claim for one of the following:

                              (i)  a social security pension;

                             (ii)  a social security benefit;

                            (iii)  payments under a program included in the programs known as Labour Market Programs;

                            (iv)  if the individual is aged 16 or more—payments under a prescribed educational scheme.

Consequence of section applying if the individual is the claimant’s only FTB or regular care child or the claimant is an approved care organisation

             (2)  If:

                     (a)  this section applies because the individual is an individual in respect of whom the claimant is an approved care organisation; or

                     (b)  this section applies because the individual is the only individual who is either an FTB child, or a regular care child who is a rent assistance child, of the claimant;

the Secretary must vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day on which the determination was or will be in force, after the end of the last instalment period before the variation takes place or from a later day determined by the Secretary.

Consequence of section applying if the individual is not the claimant’s only FTB or regular care child

             (3)  If:

                     (a)  this section applies because the individual is an FTB child, or a regular care child who is also a rent assistance child, of the claimant; and

                     (b)  the individual is not the claimant’s only FTB child, or regular care child who is also a rent assistance child;

the Secretary must vary the determination so that it has the effect that the daily rate of family tax benefit for which the claimant is entitled under the determination does not take into account the child who has made a claim for a payment listed in paragraph (1)(c). The determination takes effect from the day after the end of the claimant’s last instalment period before the variation takes place or from a later day determined by the Secretary.

Consequence of later rejection etc. of individual’s claim

             (4)  If:

                     (a)  under subsection (2) or (3), the Secretary varies the determination; and

                     (b)  the individual’s claim for the payment is rejected, withdrawn or taken not to have been made;

the Secretary must vary the determination to undo the effect mentioned in subsection (2) or (3), as the case may be.

29  Variation of instalment entitlement determination where failure to provide information

             (1)  This section applies if:

                     (a)  a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the Secretary, in order to make a decision about the eligibility, or daily rate of eligibility, of the claimant for family tax benefit on either or both of the following:

                              (i)  the particular day or any later day;

                             (ii)  any day or days in the past when the determination was in force;

                            requires the claimant or the claimant’s partner under Division 1 of Part 6 to give information or produce documents; and

                     (c)  the claimant or the claimant’s partner refuses or fails to comply with the requirements.

Consequences of section applying

             (2)  If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

          (2A)  Without limiting subsection (2), if the information or documents required relate to:

                     (a)  the claimant’s eligibility for rent assistance; or

                     (b)  the amount of rent assistance to be added in calculating the claimant’s rate of family tax benefit;

the Secretary may vary the determination so as to establish a different rate of family tax benefit that does not have the amount of rent assistance added for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place or from a later day determined by the Secretary.

          (2B)  Without limiting subsection (2), if the Secretary considers that the information or document is relevant to whether an individual satisfies or is exempt from the FTB activity test, the Secretary may vary the determination so as to disregard the individual for the purposes of working out whether the claimant is entitled to be paid family tax benefit, and if so the rate at which it is to be paid:

                     (a)  for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place; or

                     (b)  for any later day on which the determination was or will be in force specified by the Secretary in the variation.

Consequence of later provision of information or documents

             (3)  If:

                     (a)  under subsection (2), (2A) or (2B), the Secretary varies the determination; and

                     (b)  the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (2), (2A) or (2B).

30  Variation of instalment entitlement determination where failure to notify change of address

             (1)  This section applies if:

                     (a)  a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the Secretary has reason to believe that the claimant’s address has changed since it was last known to the Secretary but the Secretary does not know the claimant’s new address; and

                     (c)  the Secretary, after taking reasonable steps, is not able to find out whether the claimant’s address has changed or, if it has, what the claimant’s new address is.

Consequence of section applying

             (2)  If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

Consequence of Secretary later becoming aware of address etc.

             (3)  If:

                     (a)  under subsection (2), the Secretary varies the determination; and

                     (b)  before the end of the income year following the one in which the variation took effect, the Secretary finds out:

                              (i)  that the claimant’s address has not changed; or

                             (ii)  what the claimant’s new address is;

the Secretary must vary the determination to undo the effect mentioned in subsection (2).

30A  Variation of instalment entitlement determination where failure to notify claimant’s departure from Australia

             (1)  This section applies if:

                     (a)  a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the claimant leaves Australia without having notified the Secretary that the claimant proposed to leave or is leaving; and

                     (c)  less than 3 years have passed since the claimant left Australia.

             (2)  The Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place.

             (3)  If the Secretary varies the determination under subsection (2), and later obtains information relating to the question whether the claimant is entitled to be paid family tax benefit for a day described in that subsection, the Secretary must vary the determination to undo the effect mentioned in that subsection.

30B  Variation of instalment entitlement determination where failure to notify FTB or regular care child’s departure from Australia

             (1)  This section applies if:

                     (a)  a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  an FTB child, or a regular care child who is also a rent assistance child, of the claimant leaves Australia without the claimant having notified the Secretary that the child will leave or is leaving; and

                     (c)  less than 3 years have passed since the child left Australia.

             (2)  The Secretary may vary the determination so that, for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place, the determination:

                     (a)  has the effect that the claimant is not entitled to be paid family tax benefit, if the conditions in paragraphs (1)(b) and (c) are met in relation to:

                              (i)  each FTB child of the claimant; and

                             (ii)  each regular care child who is also a rent assistance child of the claimant; or

                     (b)  has the effect that the daily rate of family tax benefit for which the claimant is entitled under the determination does not take into account the FTB child or regular care child, if the conditions in paragraphs (1)(b) and (c) are not met in relation to:

                              (i)  each FTB child of the claimant; and

                             (ii)  each regular care child who is also a rent assistance child of the claimant.

             (3)  If the Secretary:

                     (a)  varies the determination under subsection (2); and

                     (b)  later obtains information relating to the question whether the claimant is entitled to be paid family tax benefit for the FTB child or regular care child for a day described in that subsection or the question what is the claimant’s daily rate of family tax benefit for the day;

the Secretary must vary the determination to undo the effect mentioned in that subsection relating to the day.

31  Variation of instalment entitlement determination to reflect changes in eligibility

             (1)  If:

                     (a)  a determination is made under section 16 that a claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  after the determination is made an event occurs; and

                     (c)  when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination immediately after the occurrence, he or she would conclude:

                              (i)  that the claimant was no longer eligible for family tax benefit; or

                             (ii)  that the claimant was still so eligible but that the rate of family tax benefit should be a different rate to the rate previously determined;

the Secretary must, subject to subsection (2):

                     (d)  if subparagraph (c)(i) applies—vary the determination so that the claimant is not entitled to be paid family tax benefit with effect from the date of occurrence; and

                     (e)  if subparagraph (c)(ii) applies—vary the determination so as to establish the different rate with effect from the date of occurrence.

          (1A)  For the purpose of subsection (1), the occurrence of an event includes the expiration of a period of time if the expiration of that period is relevant to the operation of this Act.

          (1B)  The reference in subsection (1) to the occurrence does not include the occurrence of any event:

                     (a)  that causes the claimant to provide a revised estimate of the claimant’s adjusted taxable income to the Secretary; or

                     (b)  that causes the Secretary to revise an estimate of the claimant’s maintenance income;

unless:

                     (c)  the event also affects the claimant’s eligibility for family tax benefit, or the rate of family tax benefit payable to the claimant, for a reason other than the amount of the claimant’s adjusted taxable income or maintenance income; or

                     (d)  the event is the claimant’s becoming, or ceasing to be, a member of a couple.

Beneficial variations only to have limited effect

             (2)  If:

                     (a)  the Secretary does not become aware of the occurrence of the event until after the end of the income year (the second income year) following the one in which the event occurred; and

                     (b)  the claimant did not notify the Secretary of the occurrence of the event before the end of the second income year; and

                     (c)  apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant’s entitlement to family tax benefit under the determination;

the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.

Sections 27, 27A, 28, 28A, 28B, 30, 30A and 30B and subsection 29(2) variations prevail

             (3)  If:

                     (a)  when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 30, 30A or 30B or subsection 29(2); and

                     (b)  the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;

the variation under that section or subsection prevails over the variation under this section.

31A  Variation of instalment entitlement determination to reflect revised adjusted taxable income estimates

             (1)  If:

                     (a)  a determination is in force on a particular day under which a claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of a reasonable estimate of the claimant’s adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant; and

                     (c)  the claimant provides the Secretary with a revised estimate of the claimant’s adjusted taxable income for the current income year or the next income year that is not attributable to an event mentioned in paragraph 31(1B)(c) or (d); and

                     (d)  the Secretary considers the revised estimate to be reasonable; and

                     (e)  if the claimant’s rate of family tax benefit were calculated using the revised estimate—a new rate of family tax benefit would be required;

the Secretary must vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of that revised estimate.

Note:          Section 20C affects the meaning of paragraph (1)(b) for couples.

             (2)  A variation of a determination under subsection (1) has effect:

                     (a)  if it results in an increase in the claimant’s rate of family tax benefit:

                              (i)  unless subparagraph (ii) applies—from the day on which the revised estimate was provided to the Secretary; or

                             (ii)  if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i)—from that first day; and

                     (b)  if it results in a decrease (including a decrease to nil) in the claimant’s rate of family tax benefit:

                              (i)  unless subparagraph (ii) or (iii) applies—from the day on which the revised estimate was provided to the Secretary; or

                             (ii)  if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i) and subparagraph (iii) does not apply—from that first day; or

                            (iii)  if the day after the end of the last instalment period before the variation takes place occurs after the days identified in subparagraphs (i) and (ii)—from the day first‑mentioned in this subparagraph.

             (3)  If:

                     (a)  when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 30, 30A or 30B or subsection 29(2); and

                     (b)  the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;

the variation under that section or subsection prevails over the variation under this section.

31B  Variation of instalment entitlement determination to reflect revised maintenance income estimates

             (1)  If:

                     (a)  a determination is in force on a particular day under which a claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  that determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of an estimate of the claimant’s maintenance income in a particular income year; and

                     (c)  the Secretary, at any time before or during that income year, makes a revised estimate of that amount that is attributable to the occurrence of an event other than an event to which paragraph 31(1B)(c) or (d) applies; and

                     (d)  if the claimant’s rate of family tax benefit were calculated using the revised estimate—a new rate of family tax benefit would be required;

the Secretary must vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of that revised estimate.

             (2)  A variation of a determination under subsection (1) has effect from a day determined by the Secretary, which must not be earlier than either of the following:

                     (a)  the day after the end of the last instalment period before the variation takes place;

                     (b)  the first day of the income year to which the revised estimate relates.

             (3)  If:

                     (a)  when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 30, 30A or 30B or subsection 29(2); and

                     (b)  the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;

the variation under that section or subsection prevails over the variation under this section.

31C  Variation of instalment entitlement determination to reflect indexation of estimate of adjusted taxable income

             (1)  If:

                     (a)  a determination is in force under which a claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the Secretary gives the claimant a notice under subsection 20A(2); and

                     (c)  the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

                     (d)  if the claimant’s rate of family tax benefit were calculated using the indexed estimate stated in the notice—a new rate of family tax benefit would be required;

the Secretary may vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of the indexed estimate stated in the notice.

Note:          Section 20C affects the meaning of this provision for members of couples.

             (2)  The variation has effect:

                     (a)  from the start day specified in the notice for the indexed estimate; or

                     (b)  if the variation is made after that start day—from the later of the start day and the first day of the instalment period in which the variation is made.

31D  Variation of instalment entitlement determination to reflect indexation of adjusted taxable income

             (1)  If:

                     (a)  a determination is in force under which a claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  the Secretary gives the claimant a notice under subsection 20B(2); and

                     (c)  the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

                     (d)  if the claimant’s rate of family tax benefit were calculated using the indexed actual income stated in the notice—a new rate of family tax benefit would be required;

the Secretary may vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of the indexed actual income stated in the notice.

Note:          Section 20C affects the meaning of this provision for members of couples.

             (2)  The variation has effect:

                     (a)  from the start day specified in the notice for the indexed actual income; or

                     (b)  if the variation is made after that start day—from the later of the start day and the first day of the instalment period in which the variation is made.

31E  Continuous adjustment of daily rate of family tax benefit payable by instalment

             (1)  This section applies if:

                     (a)  a determination is in force in an income year under which a claimant is entitled to be paid family tax benefit by instalment; and

                     (b)  one of the following applies:

                              (i)  a variation of the determination under subsection 31A(1) has effect on a day in the income year that is after 1 July;

                             (ii)  a variation of the determination under subsection 31B(1) has effect on a day in the income year that is after 1 July;

                            (iii)  a variation of the determination under subsection 31C(1) has effect on a day in the income year that is after 1 July;

                            (iv)  a variation of the determination under subsection 31D(1) has effect on a day in the income year that is after 1 July;

                             (v)  on a day in the income year, the claimant provides the Secretary with a revised estimate of the claimant’s adjusted taxable income for the income year that does not result in a variation of the determination under subsection 31A(1);

                            (vi)  on a day in the income year that is after 1 July, the Secretary makes a revised estimate of the claimant’s maintenance income that does not result in a variation of the determination under subsection 31B(1).

             (2)  The Secretary must apply the following method statement to work out if there is a daily overpayment rate:

Method statement

Step 1.    Work out the total amount of family tax benefit the claimant is or was entitled to be paid during the period beginning at the start of the income year and ending at the end of the day before the applicable day.

Step 2.    Work out the total amount of family tax benefit the claimant would have been entitled to be paid during that period if the claimant’s rate of family tax benefit were calculated using:

               (a)     if subparagraph (1)(b)(i) applies—the revised estimate concerned; or

               (b)     if subparagraph (1)(b)(ii) applies—the revised estimate concerned; or

               (c)     if subparagraph (1)(b)(iii) applies—the indexed estimate concerned; or

               (d)     if subparagraph (1)(b)(iv) applies—the indexed actual income concerned; or

               (e)     if subparagraph (1)(b)(v) applies—the revised estimate concerned; or

               (f)     if subparagraph (1)(b)(vi) applies—the revised estimate concerned.

Step 3.    Take the amount worked out at step 2 away from the amount worked out at step 1.

Step 4.    If the amount worked out at step 3 is greater than zero, work out the number of days during the period beginning on the applicable day and ending at the end of the last day in the income year.

Step 5.    Work out the daily overpayment rate by dividing the amount worked out at step 3 by the number of days worked out at step 4.

             (3)  If there is a daily overpayment rate, the Secretary must vary the determination so that the claimant’s daily rate of family tax benefit for the period beginning on the applicable day and ending at the end of the last day in the income year is reduced (but not below nil) by that daily overpayment rate.

             (4)  This section may have more than one application in relation to the claimant during the income year.

             (5)  In this section:

applicable day means:

                     (a)  if subparagraph (1)(b)(i), (ii), (iii) or (iv) applies—the day on which the variation concerned has effect; and

                     (b)  if subparagraph (1)(b)(v) or (vi) applies—the first day of the instalment period in which the Secretary applies the method statement because of that subparagraph applying.

32  Notice of variation of determination

             (1)  The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.

             (2)  The variation is not ineffective by reason only that the requirements of subsection (1) are not complied with.

Subdivision CANon‑payment of family tax benefit for non‑lodgment of tax returns

32AA  Non‑payment of family tax benefit for non‑lodgment of tax returns

             (1)  If the Secretary varies a determination under subsection 28(2) in relation to a claimant, the Secretary must not make a payment of family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) to:

                     (a)  the claimant during a prohibited period for the claimant (see section 32AB); and

                     (b)  the claimant’s partner (if any) (the relevant partner) mentioned in subparagraph 28(1)(b)(iii) during a prohibited period for that partner (see section 32AC).

             (2)  This section is subject to section 32AE.

32AB  Prohibited periods for claimant

First kind of prohibited period

             (1)  There is a prohibited period for the claimant if:

                     (a)  the claimant was required to lodge an income tax return for the cancellation income year concerned but the claimant has not done so by the end of the grace period; or

                     (b)  the claimant and the relevant partner are members of the same couple at the end of the grace period, and that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.

Note:          For relevant partner see section 32AA. For grace period see subsection (8).

          (1A)  However, there is not a prohibited period for the claimant under subsection (1) because of a variation mentioned in section 32AA if:

                     (a)  no debt arose under section 71 as a result of that variation; or

                     (b)  a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.

             (2)  The prohibited period referred to in subsection (1):

                     (a)  begins on the day after the end of the grace period; and

                     (b)  ends when subsection (3), (4), (4A) or (7) applies (whichever occurs first).

             (3)  This subsection applies if:

                     (a)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return; and

                     (b)  if the relevant partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return.

             (4)  This subsection applies if:

                     (a)  the claimant and the relevant partner cease to be members of the same couple at any time after the end of the grace period; and

                     (b)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

          (4A)  This subsection applies if:

                     (a)  a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

                     (b)  an amount of that debt was outstanding at the end of the grace period; and

                     (c)  at a time after the end of the grace period, no amount of that debt is outstanding.

Second kind of prohibited period

             (5)  There is a prohibited period for the claimant if:

                     (a)  the claimant and the relevant partner cease to be members of the same couple on or after the day the variation mentioned in section 32AA is made; and

                     (b)  the claimant and that partner become members of the same couple again on a day (the applicable day) that is after the end of the period applicable under paragraph (a) of the definition of grace period in subsection (8); and

                     (c)  that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.

          (5A)  However, there is not a prohibited period for the claimant under subsection (5) because of a variation mentioned in section 32AA if:

                     (a)  no debt arose under section 71 as a result of that variation; or

                     (b)  a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).

             (6)  The prohibited period referred to in subsection (5):

                     (a)  begins on the day determined by the Secretary (which must not be earlier than the applicable day); and

                     (b)  ends when:

                              (i)  the relevant partner lodges an income tax return for the cancellation income year concerned; or

                             (ii)  the claimant and the relevant partner cease to be members of the same couple again; or

                            (iii)  subsection (6A) or (7) applies;

                            whichever occurs first.

          (6A)  This subsection applies if:

                     (a)  a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

                     (b)  an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and

                     (c)  at a time on or after that day, no amount of that debt is outstanding.

Prohibited period may end in special circumstances

             (7)  This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Grace period

             (8)  In this section:

grace period means:

                     (a)  the period of 75 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the variation mentioned in section 32AA is made; or

                     (b)  if subsection (7) has applied in relation to a previous prohibited period—the period of 14 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the determination mentioned in subsection (7) is made.

Note:          The effect of paragraph (b) of the definition is that there may be another prohibited period for the claimant under subsection (1).

             (9)  The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of grace period in subsection (8) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determinations are not legislative instruments

           (10)  A determination made under paragraph (6)(a) or subsection (7) or (9) is not a legislative instrument.

32AC  Prohibited periods for relevant partner

First kind of prohibited period

             (1)  There is a prohibited period for the relevant partner if:

                     (a)  the claimant and that partner are members of the same couple at the end of the grace period; and

                     (b)  either or both of the following apply:

                              (i)  the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period;

                             (ii)  that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.

Note:          For relevant partner see section 32AA. For grace period see subsection (10).

          (1A)  However, there is not a prohibited period for the relevant partner under subsection (1) because of a variation mentioned in section 32AA if:

                     (a)  no debt arose under section 71 as a result of that variation; or

                     (b)  a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.

             (2)  The prohibited period referred to in subsection (1):

                     (a)  begins on the day after the end of the grace period; and

                     (b)  ends when subsection (3), (4), (4A) or (9) applies (whichever occurs first).

             (3)  This subsection applies if:

                     (a)  if that partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return; and

                     (b)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

             (4)  This subsection applies if the claimant and that partner cease to be members of the same couple at any time after the end of the grace period.

          (4A)  This subsection applies if:

                     (a)  a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

                     (b)  an amount of that debt was outstanding at the end of the grace period; and

                     (c)  at a time after the end of the grace period, no amount of that debt is outstanding.

Second kind of prohibited period

             (5)  There is a prohibited period for the relevant partner if:

                     (a)  the claimant and that partner cease to be members of the same couple on or after the day the variation mentioned in section 32AA is made; and

                     (b)  the claimant and that partner become members of the same couple again on a day (the applicable day) that is after the end of the period applicable under paragraph (a) of the definition of grace period in subsection (10); and

                     (c)  either or both of the following apply:

                              (i)  the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day;

                             (ii)  that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.

          (5A)  However, there is not a prohibited period for the relevant partner under subsection (5) because of a variation mentioned in section 32AA if:

                     (a)  no debt arose under section 71 as a result of that variation; or

                     (b)  a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).

             (6)  The prohibited period referred to in subsection (5):

                     (a)  begins on the day determined by the Secretary (which must not be earlier than the applicable day); and

                     (b)  ends when subsection (7), (8), (8A) or (9) applies (whichever occurs first).

             (7)  This subsection applies if:

                     (a)  if that partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return; and

                     (b)  if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

             (8)  This subsection applies if the claimant and that partner cease to be members of the same couple again.

          (8A)  This subsection applies if:

                     (a)  a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

                     (b)  an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and

                     (c)  at a time on or after that day, no amount of that debt is outstanding.

Prohibited period may end in special circumstances

             (9)  This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Grace period

           (10)  In this section:

grace period means:

                     (a)  the period of 75 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the variation mentioned in section 32AA is made; or

                     (b)  if subsection (9) has applied in relation to a previous prohibited period—the period of 14 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the determination mentioned in subsection (9) is made.

Note:          The effect of paragraph (b) of the definition is that there may be another prohibited period for the relevant partner under subsection (1).

           (11)  The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of grace period in subsection (10) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determinations are not legislative instruments

           (12)  A determination made under paragraph (6)(a) or subsection (9) or (11) is not a legislative instrument.

32AD  Prohibited periods for new partner

                   If:

                     (a)  on or after the day the variation mentioned in section 32AA is made, the claimant becomes a member of a couple and the claimant’s partner (the new partner) is not the relevant partner; and

                     (b)  the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so when the claimant becomes a member of that couple;

then, during a prohibited period for the claimant and while the claimant and the new partner are members of the same couple, the Secretary must not make a payment of family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) to the new partner.

Note:          For relevant partner see section 32AA.

32AE  Non‑entitlement to payment of family tax benefit after 3 or more variations under subsection 28(2)

             (1)  This section applies if 3 or more variations under subsection 28(2) have been made in relation to a claimant.

Claimant

             (2)  The claimant is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) for a period if, throughout that period, both subsections (3) and (4) of this section apply in relation to one or more of the cancellation income years concerned.

Note 1:       For cancellation income year see subsection 28(1).

Note 2:       Subsection (8) creates an exception to subsection (2).

             (3)  This subsection applies in relation to a cancellation income year if either or both of the following apply:

                     (a)  if the claimant was required to lodge an income tax return for that year—the claimant has not lodged that return;

                     (b)  if the claimant is a member of a couple and the claimant’s partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year—that partner has not lodged that return.

Note:          For relevant partner see section 32AA.

             (4)  This subsection applies in relation to a cancellation income year if a debt arose under section 71 as a result of the variation concerned and an amount of that debt is outstanding.

Partner

             (5)  If the claimant is a member of a couple, the claimant’s partner is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) for a period if, throughout that period, both subsections (6) and (7) of this section apply in relation to one or more of the cancellation income years concerned.

Note 1:       For cancellation income year see subsection 28(1).

Note 2:       Subsection (9) creates an exception to subsection (5).

             (6)  This subsection applies in relation to a cancellation income year if either or both of the following apply:

                     (a)  if the claimant was required to lodge an income tax return for that year—the claimant has not lodged that return;

                     (b)  if the claimant’s partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year—that partner has not lodged that return.

Note:          For relevant partner see section 32AA.

             (7)  This subsection applies in relation to a cancellation income year if a debt arose under section 71 as a result of the variation concerned and an amount of that debt is outstanding.

Exceptions

             (8)  The Secretary may, by writing, determine that subsection (2) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

             (9)  The Secretary may, by writing, determine that subsection (5) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

           (10)  A period specified in a determination under subsection (8) or (9) may be a period beginning before, on or after the day the determination is made.

           (11)  A determination made under subsection (8) or (9) is not a legislative instrument.

Subdivision DFTB reconciliation conditions

32A  FTB Part A supplement and FTB Part B supplement to be disregarded unless and until individual has satisfied the FTB reconciliation conditions

             (1)  This section applies to a decision of the Secretary to make or vary a section 16 or 17 determination if, as a result of the decision, an individual (the first individual) is entitled to be paid family tax benefit at a particular rate in respect of a period (the same‑rate benefit period) that consists of, or is included in, a particular income year (the relevant income year).

             (2)  In making or varying the determination, the Secretary must disregard the following provisions:

                     (a)  paragraph (ca) of step 1 of the method statement in clause 3 of Schedule 1 to the Family Assistance Act;

                     (b)  paragraph (d) of step 1 of the method statement in clause 25 of Schedule 1 to the Family Assistance Act;

                    (ba)  paragraph 29(1)(b) of Schedule 1 to the Family Assistance Act;

                    (bb)  paragraph (b) of step 1 of the method statement in subclause 29(2) of Schedule 1 to the Family Assistance Act;

                  (bba)  paragraph 29A(2)(b) of Schedule 1 to the Family Assistance Act;

                    (bc)  subclause 31A(1) of Schedule 1 to the Family Assistance Act;

                     (c)  subclause 38A(1) of Schedule 1 to the Family Assistance Act;

unless and until:

                     (d)  if the same‑rate benefit period to which the decision relates is the only same‑rate benefit period for the first individual for the relevant income year—the first individual has satisfied the FTB reconciliation conditions for the same‑rate benefit period; or

                     (e)  if the same‑rate benefit period to which the decision relates is one of 2 or more same‑rate benefit periods for the first individual for the relevant income year—the first individual has satisfied the FTB reconciliation conditions for each of those same‑rate benefit periods.

Note 1:       If those provisions are disregarded, they will be taken into account when the determination or variation is reviewed under section 105—see section 105A.

Note 2:       To work out when the first individual has satisfied the FTB reconciliation conditions, see section 32B.

32B  When FTB reconciliation conditions are satisfied

                   For the purposes of this Act, the first individual satisfies the FTB reconciliation conditions for a same‑rate benefit period:

                     (a)  if only one of sections 32C to 32Q applies to the first individual for the same‑rate benefit period—at the relevant reconciliation time; or

                     (b)  if 2 or more of sections 32C to 32Q apply to the first individual for the same‑rate benefit period—at whichever of the relevant reconciliation times is the latest.

32C  Relevant reconciliation time—member of a couple, income tax return lodged within 2 years

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  both:

                              (i)  the first individual was a member of a couple throughout the same‑rate benefit period; and

                             (ii)  the first individual continues to be a member of the couple until the end of the second income year following the relevant income year; and

                     (b)  the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year.

             (2)  If only one member of the couple was required to lodge an income tax return for the relevant income year, the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the member’s taxable income for the relevant income year, so long as the member’s income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.

             (3)  If:

                     (a)  both members of the couple were required to lodge an income tax return for the relevant income year; and

                     (b)  both members of the couple lodged an income tax return for the relevant income year before the end of the second income year following the relevant income year;

the relevant reconciliation time is whichever is the later of the following:

                     (c)  the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year;

                     (d)  the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member’s taxable income for the relevant income year.

32D  Relevant reconciliation time—individual not member of a couple, income tax return lodged within 2 years

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual was not a member of a couple at any time during the same‑rate benefit period; and

                     (b)  the first individual is or was required to lodge an income tax return for the relevant income year; and

                     (c)  clause 38L of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same‑rate benefit period.

             (2)  The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.

32E  Relevant reconciliation time—couple separates before the end of the relevant income year, individual lodges income tax return

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual was a member of a couple throughout the same‑rate benefit period; and

                     (b)  the first individual is not a member of the couple just before the end of the relevant income year; and

                     (c)  the first individual is or was required to lodge an income tax return for the relevant income year.

             (2)  The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.

32F  Relevant reconciliation time—couple separates after the end of the relevant income year, at least one member of the couple lodges income tax return

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual was a member of a couple throughout the same‑rate benefit period; and

                     (b)  the first individual ceased to be a member of the couple during the period:

                              (i)  beginning at the start of the next income year; and

                             (ii)  ending at the end of the designated date in the next income year; and

                     (c)  the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and

                     (d)  at least one of the members of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year.

             (2)  If both members of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year, the relevant reconciliation time is whichever is the later of the following:

                     (a)  the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year;

                     (b)  the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member’s taxable income for the relevant income year.

             (3)  If:

                     (a)  the first individual lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and

                     (b)  the other member of the couple was not required to lodge an income tax return for the relevant income year;

the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year.

             (4)  If:

                     (a)  the first individual lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and

                     (b)  the other member of the couple is or was required to lodge an income tax return for the relevant income year, but did not lodge an income tax return for the relevant income year before the end of the designated date in the next income year;

the relevant reconciliation time is the end of the designated date in the next income year.

             (5)  If:

                     (a)  the other member of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and

                     (b)  the first individual was not required to lodge an income tax return for the relevant income year;

the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member’s taxable income for the relevant income year.

             (6)  If:

                     (a)  the other member of the couple lodged an income tax return for the relevant income year before the end of the designated date in the next income year; and

                     (b)  the first individual is or was required to lodge an income tax return for the relevant income year, but did not lodge an income tax return for the relevant income year before the end of the designated date in the next income year;

the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.

Note:          For designated date, see section 32R.

32G  Relevant reconciliation time—couple separates after the end of the relevant income year, neither have lodged a tax return by the end of the designated date

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual was a member of a couple throughout the same‑rate benefit period; and

                     (b)  the first individual ceased to be a member of the couple during the period:

                              (i)  beginning at the start of the next income year; and

                             (ii)  ending at the end of the designated date in the next income year; and

                     (c)  the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and

                     (d)  neither the first individual, nor the other member of the couple, have lodged an income tax return for the relevant income year at a time before the end of the designated date in the next income year.

             (2)  The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.

Note:          For designated date, see section 32R.

32H  Relevant reconciliation time—couple separates after the end of the designated date

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual was a member of a couple throughout the same‑rate benefit period; and

                     (b)  the first individual ceased to be a member of the couple during the period:

                              (i)  beginning just after the designated date in the next income year; and

                             (ii)  ending at the end of the second income year after the relevant income year; and

                     (c)  the first individual is or was required to lodge an income tax return for the relevant income year.

             (2)  If the first individual ceased to be a member of the couple before the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, the relevant reconciliation time is the time when the assessment is made, so long as the first individual’s income tax return for the relevant income year was lodged before the end of the second income year following the relevant income year.

             (3)  If the first individual ceased to be a member of the couple after the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, the relevant reconciliation time is the time when the first individual ceased to be a member of the couple.

Note:          For designated date, see section 32R.

32J  Relevant reconciliation time—individual not required to lodge an income tax return

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual; or

                     (b)  any other individual (other than an FTB child, or regular care child, of the first individual) whose adjusted taxable income is relevant in working out the first individual’s entitlement to, or rate of, family tax benefit for the same‑rate benefit period;

is not required to lodge an income tax return for the relevant income year.

             (2)  The relevant reconciliation time is whichever is the earlier of the following times:

                     (a)  the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual’s adjusted taxable income for the relevant income year;

                     (b)  the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual.

32K  Relevant reconciliation time—child aged 5 or more and less than 16

             (1)  This section applies to the first individual for a same‑rate benefit period if the following conditions are satisfied in relation to another individual:

                     (a)  the other individual is aged 5 or more and less than 16;

                     (b)  the other individual is not undertaking full‑time study or primary education;

                     (c)  before the end of the relevant income year, the first individual gives the Secretary an estimate of the other individual’s adjusted taxable income for the relevant income year;

                     (d)  assuming that the other individual had adjusted taxable income for the relevant income year that is less than the cut‑out amount (as defined by subsection 22A(2) of the Family Assistance Act), the other individual would be an FTB child, or a regular care child who is also a rent assistance child, of the first individual.

             (2)  The relevant reconciliation time is whichever is the earlier of the following times:

                     (a)  the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the other individual’s adjusted taxable income for the relevant income year;

                     (b)  the time after the end of the relevant income year when the Secretary becomes satisfied that the amount of the other individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual.

             (3)  For the purposes of this section, the question whether the other individual is undertaking primary education is to be determined in the same way as that question is determined under section 22A of the Family Assistance Act.

32L  Relevant reconciliation time—child aged 16 or more

             (1)  This section applies to the first individual for a same‑rate benefit period if the following conditions are satisfied in relation to another individual:

                     (a)  the other individual is aged 16 or more;

                     (b)  before the end of the relevant income year, the first individual gives the Secretary an estimate of the other individual’s adjusted taxable income for the relevant income year;

                     (c)  assuming that the other individual had adjusted taxable income for the relevant income year that is less than the cut‑out mount (as defined by subsection 22A(2) of the Family Assistance Act), the other individual would be an FTB child of the first individual.

             (2)  The relevant reconciliation time is whichever is the earlier of the following times:

                     (a)  the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the other individual’s adjusted taxable income for the relevant income year;

                     (b)  the time after the end of the relevant income year when the Secretary becomes satisfied that the amount of the other individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual.

32M  Relevant reconciliation time—target foreign income, tax free pension/benefit or child maintenance expenditure

             (1)  This section applies to the first individual for a same‑rate benefit period if any of the following were taken into account in working out the first individual’s adjusted taxable income for the relevant income year:

                     (a)  the first individual’s target foreign income for the relevant income year (as defined by clause 5 of Schedule 3 to the Family Assistance Act);

                     (b)  the first individual’s tax free pension or benefit for the relevant income year (as defined by clause 7 of Schedule 3 to the Family Assistance Act);

                     (c)  the first individual’s child maintenance expenditure for the relevant income year (as defined by clause 8 of Schedule 3 to the Family Assistance Act);

                     (d)  another individual’s target foreign income for the relevant income year (as defined by clause 5 of Schedule 3 to the Family Assistance Act);

                     (e)  another individual’s tax free pension or benefit for the relevant income year (as defined by clause 7 of Schedule 3 to the Family Assistance Act);

                      (f)  another individual’s child maintenance expenditure for the relevant income year (as defined by clause 8 of Schedule 3 to the Family Assistance Act).

             (2)  The relevant reconciliation time is whichever is the earlier of the following times:

                     (a)  the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual’s adjusted taxable income for the relevant income year;

                     (b)  the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual.

32N  Relevant reconciliation time—individual has maintenance income

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual has an annualised amount of maintenance income (as defined by Division 5 of Part 2 of Schedule 1 to the Family Assistance Act) for the relevant income year; and

                     (b)  clause 19B of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same‑rate benefit period.

             (2)  The relevant reconciliation time is whichever is the earlier of the following times:

                     (a)  the time after the end of the relevant income year when the first individual notifies the Secretary of information that is sufficient to work out the first individual’s annualised amount of maintenance income for the relevant income year;

                     (b)  the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s annualised amount of maintenance income for the relevant income year can be worked out without receiving a notification from the first individual.

32P  Relevant reconciliation time—individual not member of a couple, no maintenance income etc.

             (1)  This section applies to the first individual for a same‑rate benefit period if:

                     (a)  the first individual was not a member of a couple at any time during the same‑rate benefit period; and

                     (b)  clause 38L of Schedule 1 to the Family Assistance Act applied to the first individual throughout the same‑rate benefit period; and

                     (c)  either:

                              (i)  the first individual did not have an annualised amount of maintenance income (as defined by Division 5 of Part 2 of Schedule 1 to the Family Assistance Act) for the relevant income year; or

                             (ii)  clause 19B of Schedule 1 to the Family Assistance Act applied to the first individual throughout the same‑rate benefit period; and

                     (d)  the first individual does not have an FTB child, or a regular care child who is also a rent assistance child, whose adjusted taxable income is relevant in working out the first individual’s entitlement to, or rate of, family tax benefit for the same‑rate benefit period.

             (2)  The relevant reconciliation time is the end of the relevant income year.

32Q  Relevant reconciliation time—individual covered by determination made by the Secretary

                   The Secretary may, by legislative instrument, determine that:

                     (a)  this section applies to a specified class of individuals for a same‑rate benefit period in specified circumstances; and

                     (b)  the relevant reconciliation time applicable to that class for the same‑rate benefit period is the time ascertained in accordance with the determination.

32R  Designated date

             (1)  The Secretary may, by legislative instrument, determine that a specified date is the designated date for the purposes of this Subdivision.

             (3)  In subsection (1):

date means a date that recurs each income year.


 

Division 2Payment of family tax benefit advances

33  Determination of entitlement to family tax benefit advance

             (1)  The Secretary must determine that an individual is entitled to be paid a family tax benefit advance for a standard advance period if:

                     (a)  on the advance assessment day, the individual is entitled to be paid family tax benefit by instalment; and

                    (aa)  on that day, the individual’s Part A rate is equal to or exceeds the amount that would, under clause 26 of Schedule 1 to the Family Assistance Act, be the FTB child rate for an FTB child who had not turned 18 if:

                              (i)  the individual’s Part A rate were required to be worked out using Part 3 of that Schedule; and

                             (ii)  clause 27 of that Schedule did not apply; and

                    (ab)  the individual has at least one FTB child; and

                     (b)  the individual has made a request to the Secretary for the payment of a family tax benefit advance for that period; and

                     (c)  the request is made before the end of that period; and

                     (d)  the individual is not an individual to whom subsection (1A) applies.

          (1A)  This subsection applies to an individual who, on the advance assessment day, owes a debt to the Commonwealth (whether arising under this Act or not) that is:

                     (a)  recoverable under Part 4 by means of deductions from the individual’s instalments of family tax benefit under section 84; or

                     (b)  being recovered by deductions from the individual’s instalments of family tax benefit under section 227.

             (2)  Subject to subsection (2A), an individual’s advance assessment day for a standard advance period is:

                     (a)  if paragraph (b) does not apply—the first day in the standard advance period; or

                     (b)  the day on which the individual becomes entitled to be paid family tax benefit by instalment if:

                              (i)  the individual is not entitled to be paid family tax benefit by instalment on the first day in the standard advance period; and

                             (ii)  the individual becomes entitled to be paid family tax benefit by instalment during the standard advance period; and

                            (iii)  the individual becomes so entitled because of the birth of a child.

          (2A)  If an individual’s request to the Secretary for the payment of a family tax benefit advance for a standard advance period is made after the start of that period, the individual’s advance assessment day for that period is the day on which the individual made the request.

             (3)  An individual’s request may operate:

                     (a)  for a particular standard advance period; or

                     (b)  for a particular standard advance period and all subsequent standard advance periods.

             (4)  If paragraph (3)(b) applies to an individual’s request, the individual may withdraw the request at any time for standard advance periods for which the individual has not been paid a family tax benefit advance.

             (5)  An individual cannot become entitled to be paid more than one family tax benefit advance for a standard advance period.

34  Amount of family tax benefit advance

             (1)  The amount of the family tax benefit advance is worked out using the formula:

where:

number of days means the number of days in the individual’s family tax benefit advance period.

             (2)  Subject to subsections (3), (4) and (5), an individual’s family tax benefit advance period is the standard advance period.

             (3)  If:

                     (a)  an individual makes a request under section 33; and

                     (b)  it is not practicable on the first day in the standard advance period to adjust the individual’s payments of family tax benefit to take account of the family tax benefit advance that will result from the request;

the individual’s family tax benefit advance period starts at the beginning of the first instalment period for which it is practicable to adjust the individual’s payment of family tax benefit to take account of the family tax benefit advance.

             (4)  The Secretary may determine that an individual’s family tax benefit advance period is to end on a particular day that is earlier than the end of the standard advance period if the Secretary is satisfied that it is appropriate for the period to end on that day having regard to:

                     (a)  circumstances affecting the individual’s eligibility for family tax benefit; and

                     (b)  circumstances affecting the rate of the family tax benefit that the individual is entitled to be paid.

             (5)  If a determination is made under subsection (4), the individual’s family tax benefit advance period ends on the day determined by the Secretary.

35  Payment of family tax benefit advance

             (1)  If an individual is entitled to be paid a family tax benefit advance, the Secretary must, at such time and in such manner as the Secretary considers appropriate, pay the individual the advance.

             (2)  This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.


 

Division 3Baby bonus and maternity immunisation allowance

36  Need for a claim

                   The only way that a person can become entitled to be paid baby bonus or maternity immunisation allowance is to make a claim in accordance with this Division.

37  Who can claim

                   The only persons who can make a claim in accordance with this Division are individuals.

38  How to claim

             (1)  An individual (the claimant) may make a claim for payment of:

                     (a)  baby bonus or maternity immunisation allowance in normal circumstances; or

                     (b)  baby bonus or maternity immunisation allowance because of the death of another individual.

             (2)  A claim is not effective unless:

                     (a)  the claim:

                              (i)  is made in a form and manner; and

                             (ii)  contains any information; and

                            (iii)  is accompanied by any documents;

                            required by the Secretary; and

                    (aa)  in the case of a claim for baby bonus—the claim contains an estimate of the sum of:

                              (i)  the individual’s adjusted taxable income; and

                             (ii)  if the individual is a member of a couple on the day the claim is made—the adjusted taxable income of the individual’s partner;

                            for the 6 month period mentioned in paragraph 36(2)(d), (3)(e), (4)(c) or (5)(d) of the Family Assistance Act; and

                     (b)  in the case of a claim for baby bonus or maternity immunisation allowance in normal circumstances—the tax file number requirement in section 38A has been satisfied in relation to the claim; and

                     (c)  in the case of a claim by an individual for baby bonus or maternity immunisation allowance because of the death of another individual—the tax file number requirement in section 38B has been satisfied in relation to the claim.

          (2A)  A claim is not effective if it is made before the early claim day.

Estimate of adjusted taxable income

             (3)  For the purposes of paragraph (2)(aa):

                     (a)  a reference in Schedule 3 to the Family Assistance Act to an income year is taken to be a reference to the 6 month period referred to in that paragraph; and

                     (b)  disregard subclause 2(2) and clauses 3 and 3A of that Schedule.

38A  Tax file number requirement to be satisfied for claims for baby bonus or maternity immunisation allowance in normal circumstances to be effective

             (1)  This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 38(2)(b) (which states what is required for certain claims to be effective).

             (2)  The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN claim person. However, the requirement does not apply in relation to a TFN claim person if a determination is in force under subsection (7) in relation to the person.

Statement of tax file number

             (3)  The first kind of statement that can be made is a statement of the TFN claim person’s tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.

Statement that TFN claim person does not know what his or her tax file number is etc.

             (4)  The second kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (5)  The third kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

How statement to be given

             (6)  A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.

Exemption from tax file number requirement

             (7)  The Secretary may determine that the requirement in subsection (2) does not apply to a TFN claim person if:

                     (a)  the person is, or was, the claimant’s partner; and

                     (b)  the claimant cannot obtain from the person:

                              (i)  the person’s tax file number; or

                             (ii)  a statement by the person under subsection (4) or (5).

38B  Tax file number requirement to be satisfied for claims for baby bonus or maternity immunisation allowance because of the death of another individual to be effective

             (1)  This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 38(2)(c) (which states what is required for claims in substitution because of the death of another individual to be effective).

             (2)  The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN substitution person. However, the requirement does not apply in relation to a TFN substitution person if a determination is in force under subsection (7) or (8) in relation to the person.

Statement of tax file number

             (3)  The first kind of statement that can be made is a statement of a TFN substitution person’s tax file number. Regardless of who the TFN substitution person is, this kind of statement can be made by the claimant only.

Statement that TFN substitution person does not know what his or her tax file number is

             (4)  The second kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual’s partner during the period in respect of which the payment is claimed to the effect that the TFN substitution person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (5)  The third kind of statement that can be made is a statement by the TFN substitution person who was the deceased individual’s partner during the period in respect of which the payment is claimed to the effect that the TFN substitution person:

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

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

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

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

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

How statement to be given

             (6)  A statement made by the claimant must be made in the claim. A statement made by a TFN substitution person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.

Exemption from tax file number requirement

             (7)  The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant does not know the person’s tax file number.

             (8)  The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant cannot obtain a statement by the person under subsection (4) or (5).

39  Restrictions on claiming

“Normal circumstances” entitlement must not already have been determined, or be awaiting determination, on a previous claim

             (1)  A claim for payment of baby bonus or maternity immunisation allowance in normal circumstances is not effective if the claimant has previously made such a claim based on the same circumstances (whether or not the claim has yet been determined).

          (1A)  However, subsection (1) does not apply to a claim for payment of baby bonus in respect of a child if:

                     (a)  section 36A applied in relation to an individual’s eligibility for baby bonus in respect of the child, but ceased to apply because of subsection 36A(3); and

                     (b)  the claim is the individual’s first claim for payment of baby bonus in respect of the child after that section so ceased to apply.

“Normal circumstances” baby bonus claim must be made within limited period after birth etc. of child

             (2)  Subject to subsections (3) and (3A), a claim for payment of baby bonus in normal circumstances is not effective if it is made later than 52 weeks after:

                     (a)  if the circumstances covered by the claim involve eligibility under any of subsections 36(2) to (4) of the Family Assistance Act—the birth of the child mentioned in that subsection; or

                     (b)  if the circumstances covered by the claim involve eligibility under subsection 36(5) of the Family Assistance Act—the time the child is entrusted to the care of the claimant.

Extension of 52 week period in subsection (2)

             (3)  If the Secretary is satisfied that the claimant was unable to make a claim for payment of baby bonus in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 52 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.

          (3A)  If:

                     (a)  the claimant, or the claimant’s partner, made a claim in accordance with Part 2‑4 of the Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for payment of baby bonus relates; and

                     (b)  the Secretary notifies the claimant, or the claimant’s partner, under section 24 of that Act that parental leave pay is not payable for the child; and

                     (c)  the notice is given:

                              (i)  after the end of the period of 52 weeks mentioned in subsection (2) of this section; or

                             (ii)  during the last 13 weeks of that period of 52 weeks;

subsection (2) of this section does not apply if the claim for payment of baby bonus is made within the period of 13 weeks after the day on which the notice is given.

“Normal circumstances” maternity immunisation allowance claim

             (4)  A claim for payment of maternity immunisation allowance in normal circumstances is not effective if it is made after the time specified in the following table:

 

Normal circumstances maternity immunisation allowance claim

Item

If the claim is based on eligibility for the allowance under:

the claim is not effective if it is made after:

1

Subsection 39(2) of the Family Assistance Act

2 years after the birth of the child

2

Subsection 39(2A) of the Family Assistance Act

5 years after the birth of the child

3

Subsection 39(3) of the Family Assistance Act

5 years after the delivery of the child

4

Subsection 39(4) of the Family Assistance Act

the later of:

(a) 2 years after the death of the child; and

(b) 5 years after the birth of the child

5

Subsection 39(5) of the Family Assistance Act

4 years after the birth of the child

6

Subsection 39(6) of the Family Assistance Act

(a) if subsection 39(7) of that Act applies—2 years beginning on the day of the arrival mentioned in paragraph 39(6)(d) of that Act; or

(b) if subsection 39(8) of that Act applies—2 years after the death of the child

7

Subsection 39(9) of the Family Assistance Act

the later of:

(a) 2 years after the death of the child; and

(b) 5 years after the birth of the child

“Bereavement” entitlement must not already have been determined, or be awaiting determination, on a previous claim

             (5)  A claim for payment of baby bonus or maternity immunisation allowance because of the death of another individual is not effective if the claimant has previously made such a claim because of the death of that individual (whether or not the claim has yet been determined).

40  Claim may be withdrawn

             (1)  A claimant may withdraw or vary a claim before the claim is determined.

             (2)  The claimant may only do so in a manner determined by the Secretary.

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

41  Secretary must determine claim

             (1)  If a claim is effective, the Secretary must determine the claim in accordance with this section and sections 42 to 44. If the claim is not effective, it is taken not to have been made.

Information to be taken into account

             (2)  The Secretary is to make the determination:

                     (a)  having regard only to the information in the claim (and any accompanying documents or information required by the Secretary); or

                     (b)  having regard to the things in paragraph (a) and also to any other information or documents (whether or not provided by the claimant).

Deferral of “normal circumstances” baby bonus determination pending birth etc. of child

             (3)  If:

                     (a)  the claim is one for payment of baby bonus in normal circumstances, based on eligibility for baby bonus under subsection 36(2), (3) or (5) of the Family Assistance Act; and

                     (b)  at the time the determination would otherwise be made, the child to whom the claim relates is not an FTB child of the claimant; and

                     (c)  the Secretary is satisfied that, at the time the determination would otherwise be made, the claimant would be likely to be eligible for baby bonus in respect of the child if the child were to become an FTB child of the claimant;

the Secretary must not determine the claim for baby bonus until the earlier of the following:

                     (d)  the time when the child becomes an FTB child of the claimant, or is stillborn;

                     (e)  28 days after the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant.

Deferral of “normal circumstances” baby bonus determination pending resolution of parental leave pay

             (4)  If:

                     (a)  the claim is one for payment of baby bonus in normal circumstances; and

                     (b)  the claimant, or the claimant’s partner, has made a claim in accordance with Part 2‑4 of the Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for baby bonus relates;

the Secretary must not determine the claim for baby bonus until one of the following occurs:

                     (c)  if the Secretary determines under that Act that parental leave pay for the child is payable:

                              (i)  the PPL period applying to the individual who made the claim for parental leave pay starts; or

                             (ii)  the Secretary revokes the determination under section 25 of that Act;

                     (d)  the Secretary determines under that Act that parental leave pay for the child is not payable;

                     (e)  the claim for parental leave pay is withdrawn under section 61 of that Act.

Deferral of “normal circumstances” maternity immunisation allowance determination pending birth etc. of child

          (4A)  If:

                     (a)  the claim is one for payment of maternity immunisation allowance in normal circumstances, based on eligibility for the allowance under subsection 39(2), (2A) or (5) of the Family Assistance Act, or subsection 39(6) of that Act (where subsection 39(7) of that Act applies), in respect of a child; and

                     (b)  at the time the determination would otherwise be made, the child is not an FTB child of the claimant; and

                     (c)  the Secretary is satisfied that, at the time the determination would otherwise be made, if the child were to become an FTB child of the claimant, the claimant:

                              (i)  would be likely to be eligible for family tax benefit in respect of the child; or

                             (ii)  would be likely to be so eligible except that the claimant’s rate of family tax benefit, worked out under Division 1 of Part 4 of the Family Assistance Act, would be nil;

the Secretary must not determine the claim for maternity immunisation allowance until the earlier of the following:

                     (d)  the time when the child becomes an FTB child of the claimant, or is stillborn;

                     (e)  28 days after the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant.

Deferral of “normal circumstances” maternity immunisation allowance determination because of ineligibility

             (5)  If:

                     (a)  the claim is one for payment of maternity immunisation allowance in normal circumstances, based on eligibility for the allowance under subsection 39(2), (2A) or (5) of the Family Assistance Act, or subsection 39(6) of that Act (where subsection 39(7) of that Act applies), in respect of a child; and

                     (b)  at the time the determination would otherwise be made on the claim:

                              (i)  the claimant is not eligible for maternity immunisation allowance under subsection 39(2), (2A), (5) or (6) of that Act in respect of the child; and

                             (ii)  the child is an FTB child of the claimant; and

                            (iii)  the claimant is eligible for family tax benefit in respect of the child or would be so eligible except that the claimant’s rate of family tax benefit, worked out under Division 1 of Part 4 of the Family Assistance Act, is nil;

the Secretary must not determine the claim until after the time mentioned in subsection (6).

             (6)  The time for the purposes of subsection (5) is:

                     (a)  if the claim is based on eligibility for the allowance under subsection 39(2) of the Family Assistance Act:

                              (i)  if the claimant becomes eligible for maternity immunisation allowance under subsection 39(2) of that Act in respect of the child before the end of 2 years after the child was born—the time when the claimant becomes so eligible; or

                             (ii)  in any other case—2 years after the child was born; or

                     (b)  if the claim is based on eligibility for the allowance under subsection 39(2A) of the Family Assistance Act:

                              (i)  if the claimant becomes eligible for maternity immunisation allowance under subsection 39(2A) of that Act in respect of the child before the end of 5 years after the child was born—the time when the claimant becomes so eligible; or

                             (ii)  in any other case—5 years after the child was born; or

                     (c)  if the claim is based on eligibility for the allowance under subsection 39(5) of the Family Assistance Act:

                              (i)  if the claimant becomes eligible for maternity immunisation allowance under subsection 39(5) of that Act in respect of the child before the end of 4 years after the child was born—the time when the claimant becomes so eligible; or

                             (ii)  in any other case—4 years after the child was born; or

                     (d)  if the claim is based on eligibility for the allowance under subsection 39(6) of the Family Assistance Act (where subsection 39(7) of that Act applies):

                              (i)  if the claimant becomes eligible for maternity immunisation allowance under subsection 39(6) of that Act (where subsection 39(7) of that Act applies) in respect of the child before the end of 2 years beginning on the day of the arrival mentioned in paragraph 39(6)(d) of that Act—the time when the claimant becomes so eligible; or

                             (ii)  in any other case—2 years beginning on the day of the arrival mentioned in paragraph 39(6)(d) of that Act.

Effect of section 22A of the Family Assistance Act

             (7)  If the claim is one for payment of maternity immunisation allowance in normal circumstances, based on eligibility for the allowance under subsection 39(6) of the Family Assistance Act (where subsection 39(7) of that Act applies), then, for the purposes of paragraphs (4A)(b), (c) and (d) and subparagraphs (5)(b)(ii) and (iii) of this section, the following provisions are to be disregarded:

                     (a)  paragraph (a) of item 1 of the table in subsection 22A(1) of the Family Assistance Act;

                     (b)  paragraphs (a) and (c) of item 2 of that table;

                     (c)  item 3 of that table.

Note:          Section 22A of the Family Assistance Act sets out exceptions to when an individual can be an FTB child of another individual. This subsection removes some of those exceptions.

41A  Restriction on determining claim where tax file number not provided etc.

Statement that TFN claim person or TFN substitution person does not know what his or her tax file number is etc.

             (1)  If:

                     (a)  a TFN claim person makes a statement of the kind set out in subsection 38A(4); or

                     (b)  a TFN substitution person makes a statement of the kind set out in subsection 38B(4);

the Secretary can only determine the claim concerned if:

                     (c)  within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

                     (d)  28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.

Statement that an application for a tax file number is pending

             (2)  If:

                     (a)  a TFN claim person makes a statement of the kind set out in subsection 38A(5); or

                     (b)  a TFN substitution person makes a statement of the kind set out in subsection 38B(5);

the Secretary can only determine the claim concerned if:

                     (c)  within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

                     (d)  28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:

                              (i)  the person has not applied for a tax file number; or

                             (ii)  an application by the person for a tax file number has been refused; or

                            (iii)  the person has withdrawn an application for a tax file number.

             (3)  If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

42  Determination of “normal circumstances” entitlement claim

                   If:

                     (a)  the claim is one for payment of baby bonus or maternity immunisation allowance in normal circumstances; and

                     (b)  the Secretary is satisfied that the claimant is eligible for:

                              (i)  baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act; or

                             (ii)  maternity immunisation allowance in accordance with Subdivision A of Division 3 of that Act;

                            as the case requires, in respect of the child to whom the claim relates;

the Secretary must determine that the claimant is entitled to be paid the baby bonus or maternity immunisation allowance and must determine the amount of the baby bonus or maternity immunisation allowance that the claimant is entitled to be paid.

43  Determination of “bereavement” entitlement claim

                   If:

                     (a)  the claim is one for payment of baby bonus or maternity immunisation allowance because of the death of another individual; and

                     (b)  the Secretary is satisfied that the claimant is, in the circumstances covered by the claim, eligible for:

                              (i)  baby bonus in accordance with Subdivision B of Division 2 of Part 3 of the Family Assistance Act; or

                             (ii)  maternity immunisation allowance in accordance with Subdivision B of Division 3 of that Act;

                            as the case requires;

the Secretary must determine that the claimant is entitled to be paid the baby bonus or maternity immunisation allowance and must determine the amount of the baby bonus or maternity immunisation allowance that the claimant is entitled to be paid.

44  Determination that no entitlement

                   If the Secretary is not satisfied as mentioned in section 42 or 43, the Secretary must determine that the claimant is not entitled to be paid baby bonus or maternity immunisation allowance in respect of the child to whom the claim relates, or in the circumstances covered by the claim, as the case requires.

45  When determination is in force

                   A determination comes into force when it is made and remains in force at all times afterwards.

46  Notice of determination

             (1)  The Secretary must give notice of the determination to the claimant, stating:

                     (a)  whether the claimant is entitled to be paid baby bonus or maternity immunisation allowance under the determination; and

                     (b)  if the claimant is entitled—the amount of the baby bonus or maternity immunisation allowance and how it is to be paid; and

                     (c)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (2)  The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.

47  Payment of baby bonus

Payment over 13 fortnightly instalment periods

             (1)  The Secretary must, after each of the first 13 fortnightly instalment periods ending after he or she determines the claimant is entitled to be paid baby bonus, pay the claimant 1/13 of the amount of baby bonus the claimant is entitled to.

Note:          Section 47AB provides for rounding of the amounts of payments.

Payment over 26 weekly instalment periods

             (2)  However, if the Secretary:

                     (a)  determines that the claimant has a weekly instalment period; and

                     (b)  makes that determination before the end of what would, apart from that determination, be the end of the claimant’s first fortnightly instalment period ending after the making of the determination that the claimant is entitled to be paid baby bonus;

the Secretary must, after each of the first 26 weekly instalment periods ending after the determination of entitlement is made, pay the claimant 1/26 of the amount of baby bonus the claimant is entitled to.

Note:          Section 47AB provides for rounding of the amounts of payments.

Alternative payment arrangements in certain cases

             (3)  The Secretary may direct that the whole or a part of an amount that is to be paid for the purposes of subsection (1) or (2) is to be paid in a way different from that provided for by that subsection if:

                     (a)  the claimant is entitled to be paid baby bonus because of eligibility under subsection 36(2), (3) or (5) of the Family Assistance Act and the child dies before the claimant is paid all of the amounts under subsection (1) or (2) of this section; or

                     (b)  the claimant is entitled to be paid baby bonus because of eligibility under subsection 36(4) of the Family Assistance Act; or

                     (c)  the Secretary makes a determination under paragraph 37(3)(b) of the Family Assistance Act; or

                     (d)  after a payment is made to the claimant under subsection (1) of this section, the Secretary determines that the claimant has a weekly instalment period; or

                     (e)  after a payment is made to the claimant under subsection (2) of this section, the Secretary revokes a determination that the claimant has a weekly instalment period.

Payment to bank account

             (4)  The Secretary must make a payment under subsection (1), (2) or (3) at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

Payment not to bank account

             (5)  However, the Secretary may direct that the whole or a part of an amount that is to be paid under subsection (1), (2) or (3) is to be paid in a way other than by payment to the credit of a bank account nominated and maintained by the claimant.

Early payment

             (6)  If the Secretary is satisfied that an amount that would, apart from this subsection, be paid under subsection (1), (2) or (3) on a particular day cannot reasonably be paid on that day, the Secretary may direct that the amount be paid on an earlier day.

Effect of directions

             (7)  If the Secretary gives a direction under this section about the payment of an amount, the amount is to be paid in accordance with the direction, despite any other subsection of this section.

Persons who may have weekly instalment periods

             (8)  The Minister may by legislative instrument specify a class of persons any of whom the Secretary may determine to have weekly instalment periods.

             (9)  The Secretary may determine that a claimant who is a member of a class of persons specified under subsection (8) has weekly instalment periods.

           (10)  The Secretary must revoke a determination made under subsection (9) if he or she is satisfied that the claimant is no longer a member of a class of persons specified under subsection (8).

           (11)  Subsection (10) does not limit the operation of subsection 33(3) of the Acts Interpretation Act 1901 in relation to subsection (9) of this section.

Secretary may change beginning of instalment periods

           (12)  The Secretary may change, for the purposes of subsections (1) and (2), the day on which successive instalment periods are to begin in relation to a claimant or class of claimants. If the Secretary does so, the last instalment period before the first day on which the new instalment periods are to begin is shortened so that it ends immediately before that day.

Definitions

           (13)  In this section:

fortnightly instalment period means, subject to subsection (12):

                     (a)  the period of 14 days beginning on the day the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included; and

                     (b)  each successive period of 14 days.

instalment period means a fortnightly instalment period or a weekly instalment period.

weekly instalment period means, subject to subsection (12):

                     (a)  the period of 7 days beginning on the day the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included; and

                     (b)  each successive period of 7 days.

47AA  Payment of maternity immunisation allowance

             (1)  If the claimant is entitled to be paid maternity immunisation allowance, the Secretary must pay it to the claimant, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

Note:          Section 47AB provides for rounding of the amounts of payments.

Alternative payment arrangements

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

47AB  Other rules about payments of baby bonus and maternity immunisation allowance

Rounding of payments

             (1)  If an amount to be paid under section 47 or 47AA is not a whole number of cents, it must be rounded to the nearest cent (rounding 0.5 cents upwards).

Relationship of sections 47 and 47AA with other provisions

             (2)  Sections 47 and 47AA are subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

47A  Variation of determination where certain statements under section 38A made

             (1)  If:

                     (a)  a TFN claim person has made a statement of the kind set out in subsection 38A(4); and

                     (b)  a determination is in force under which the claimant is entitled to be paid baby bonus or maternity immunisation allowance in normal circumstances; and

                     (c)  the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;

the consequence in subsection (3) applies.

             (2)  If:

                     (a)  a TFN claim person has made a statement of the kind set out in subsection 38A(5); and

                     (b)  a determination is in force under which the claimant is entitled to be paid baby bonus or maternity immunisation allowance in normal circumstances; and

                     (c)  the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (3) applies.

             (3)  For the purposes of subsection (1) or (2), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid baby bonus or maternity immunisation allowance, as the case may be.

             (4)  If:

                     (a)  under subsection (3), the Secretary varies the determination; and

                     (b)  the Secretary finds out the tax file number of the TFN claim person at any time after the variation took place;

the Secretary must vary the determination to undo the effect mentioned in subsection (3).

47B  Claimant for payment of baby bonus to notify changes in care of the child

             (1)  This section applies if:

                     (a)  an individual makes a claim for payment of baby bonus in normal circumstances, based on eligibility for baby bonus under subsection 36(2) or (3) of the Family Assistance Act; and

                     (b)  there is a change in the care of the child after the individual makes the claim and before the end of the period of:

                              (i)  if the claim is based on eligibility for baby bonus under subsection 36(2) of that Act—26 weeks beginning on the day of the child’s birth; and

                             (ii)  if the claim is based on eligibility for baby bonus under subsection 36(3) of that Act—26 weeks beginning on the day the child is entrusted to care as mentioned in paragraph 36(3)(b) of that Act; and

                     (c)  as a result of that change in care:

                              (i)  the child ceases to be an FTB child of the individual; or

                             (ii)  neither the individual nor the individual’s partner is the primary carer of the child; and

                     (d)  before or after that change in care, the Secretary gives the individual a notice (the entitlement notice) under section 46 of this Act stating that the individual is entitled to be paid the baby bonus.

             (2)  The individual must notify the Secretary of that change in care:

                     (a)  in the manner set out in a written notice given to the individual under section 47C; and

                     (b)  as soon as practicable after:

                              (i)  if that change in care occurs before the individual receives the entitlement notice—receiving the entitlement notice; and

                             (ii)  if that change in care occurs after the individual receives the entitlement notice—that change in care.

47C  Secretary’s power to approve a manner of notification

             (1)  The Secretary must approve a manner of notification that an individual is to use when notifying the Secretary under section 47B of a change in care of a child.

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


 

Division 4Child care benefit

Subdivision AOverview of process of fee reductions

48  Overview of process if individual is conditionally eligible for child care benefit by fee reduction

             (1)  An approved child care service is obliged to notify the Secretary if an individual enrols a child for care by the service.

             (2)  Once that enrolment is confirmed by the Secretary, the service is obliged to give weekly reports to the Secretary about the care provided to the child.

             (3)  If a report is given, and a determination of conditional eligibility under section 50F is in force in respect of an individual and a child with the effect that the individual is conditionally eligible for child care benefit by fee reduction for care provided by the approved child care service to the child in a week, the Secretary will calculate the amount by which the fees charged by the service for the care are to be reduced.

             (4)  The amount by which the fees are to be reduced is referable to the amount of child care benefit that would be paid in respect of the sessions if entitlement to an amount of child care benefit was determined under section 51B in respect of the income year in which the week falls. The amount of fee reduction is calculated by the Secretary using the provisions of the Family Assistance Act.

             (5)  The service must pass on to the individual the amount of the fee reduction calculated by the Secretary. If the service has already reduced the amount of fees charged to the individual for care provided to the child in anticipation of the calculation by the Secretary, the service is taken to have passed on a fee reduction equal to the amount by which the fees have already been reduced.

             (6)  When the determination of entitlement is made, if the amount of the entitlement is greater than the amount of the fee reductions already received by the individual in respect of the sessions in the income year, the amount of the entitlement consists of the amount of the difference together with the amount of fee reductions received by the individual.

             (7)  When the determination of entitlement is made, if the amount of the entitlement is less than the amount of the fee reductions already received by the individual in respect of the sessions in the income year, the amount of the entitlement is the amount of the fee reductions less the amount of the difference.

             (8)  Payments in respect of fee reduction are made to the service by the Secretary to enable the service to pass on to the individual the amount of fee reductions as calculated (see Division 2 of Part 8A).

Subdivision BMaking claims

49  Need for a claim

             (1)  Except in the case set out in subsection (2), the only way that a person can become entitled to be paid child care benefit is to make a claim in accordance with this Subdivision.

             (2)  If an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the service to a child at risk, the service (a claimant) is taken to have made a claim for payment of child care benefit by fee reduction for the care provided by the service to the child. The claim is taken to be made on the first day that the service reports to the Secretary in respect of that eligibility.

49A  Who can make a claim

             (1)  The only persons who can make a claim in accordance with this Subdivision are individuals.

             (2)  An approved child care service that is eligible under section 47 of the Family Assistance Act is, under subsection 49(2), taken to have made a claim.

49B  What may be claimed by an individual

                   An individual (a claimant) may make a claim:

                     (a)  for payment of child care benefit by fee reduction for care provided by an approved child care service; or

                     (b)  for payment of child care benefit for a past period for care provided by an approved child care service; or

                     (c)  for payment of child care benefit for a past period for care provided by a registered carer; or

                     (d)  for payment of child care benefit by single payment/in substitution because of the death of another individual.

49C  Form etc. of effective claim by individual

Requirements for claim by individual to be effective

             (1)  To be effective:

                     (a)  a claim (other than a claim that is taken to be made under subsection 49(2)) must:

                              (i)  be made in a form and manner; and

                             (ii)  subject to subsections (2), (3) and (4), contain any information; and

                            (iii)  be accompanied by any documents;

                            required by the Secretary; and

                     (b)  the bank account requirement set out in section 49G must be satisfied in relation to the claim; and

                     (c)  in the case of a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service—the tax file number requirement in section 49E must be satisfied in relation to the claim; and

                     (d)  in the case of a claim by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service—the tax file number requirement in section 49F must be satisfied in relation to the claim.

Exemption from part of information requirement when claimant making a claim for payment of child care benefit by fee reduction

             (2)  Subject to section 49H, a claim for payment of child care benefit by fee reduction for care provided by an approved child care service to a child will be effective even though the claimant does not provide all, or some, of the following information:

                     (a)  information about any amount needed by the Secretary to calculate the CCB % applicable to the claimant in respect of the child;

                     (b)  information needed to work out the number of children the claimant has in care of a particular kind;

                     (c)  information as to whether the child is a school child;

                    (ca)  information needed by the Secretary to determine the claimant’s eligibility for the special grandparent rate in respect of the child;

                     (d)  information required for checking compliance with paragraph 42(1)(c) of the Family Assistance Act (dealing with immunisation);

                     (e)  the following information:

                              (i)  information relating to the claimant’s, and the claimant’s partner’s (if any), tax file number requested under section 57B;

                             (ii)  information relating to whether the claimant is opting to have a CCB % of zero % applicable to him or her.

Exemption from part of information requirement when claimant making a claim for payment of child care benefit for a past period for care provided by an approved child care service

             (3)  Subject to section 49J, a claim for payment of child care benefit for a past period for care provided by an approved child care service to a child will be effective even though the claimant does not provide all, or some, of the following information:

                     (a)  information about the amount needed by the Secretary to calculate the CCB % applicable to the claimant in respect of the child;

                     (b)  information needed to work out the number of children the claimant had in care of a particular kind;

                     (c)  information as to whether the child was a school child.

Exemption from part of information requirement when claimant making a claim for payment of child care benefit by single payment/in substitution for care provided by an approved child care service

             (4)  Subject to section 49L, a claim for payment of child care benefit by single payment/in substitution for care provided by an approved child care service to a child because of the death of another individual will be effective even though the claimant does not provide all, or some, of the following information:

                     (a)  information about any amount needed by the Secretary to calculate the CCB % applicable to the other individual in respect of the child;

                     (b)  information needed to work out the number of children the other individual had in care of a particular kind;

                     (c)  information as to whether the child was a school child.

49D  Deemed claim under subsection 49(2) effective in certain circumstances

             (1)  Subject to section 49M, if a claim by an approved child care service is taken to have been made under subsection 49(2), the claim is taken to be effective if the service’s eligibility under section 47 of the Family Assistance Act is reported by the service to the Secretary.

Form of report required

             (2)  The report must:

                     (a)  be made in a form and manner; and

                     (b)  contain any information; and

                     (c)  be accompanied by any documents;

required by the Secretary.

49E  Tax file number requirement to be satisfied for claim by individual for payment of child care benefit for a past period for care provided by an approved child care service to be effective

             (1)  This section sets out the tax file number requirement that must be satisfied in relation to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service. The requirement is for the purposes of paragraph 49C(1)(c) (which states what is required for these kinds of claims to be effective).

             (2)  The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN claim person. However, the requirement does not apply in relation to a TFN claim person if a determination is in force under subsection (7) in relation to the person, or the person has opted as set out in subsection (8).

Statement of tax file number

             (3)  The first kind of statement that can be made is a statement of the TFN claim person’s tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.

Statement that TFN claim person does not know what his or her tax file number is etc.

             (4)  The second kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (5)  The third kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

How statement to be given

             (6)  A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.

Exemption from tax file number requirement if Secretary determines

             (7)  The Secretary may determine that the requirement in subsection (2) does not apply to a TFN claim person if:

                     (a)  the person is, or was, the claimant’s partner; and

                     (b)  the claimant cannot obtain from the person:

                              (i)  the person’s tax file number; or

                             (ii)  a statement by the person under subsection (4) or (5).

Exemption from tax file number requirement if claimant opts for certain things in the claim form

             (8)  The requirement in subsection (2) does not apply to a TFN claim person if, in the claim, the person opted to have a CCB % of zero % applicable to him or her.

49F  Tax file number requirement to be satisfied for claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual to be effective

             (1)  This section sets out the tax file number requirement that must be satisfied in relation to a claim by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual. The requirement is for the purposes of paragraph 49C(1)(d) (which states what is required for these kinds of claims to be effective).

             (2)  The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN substitution person. However, the requirement does not apply in relation to a TFN substitution person if a determination is in force under subsection (7) or (8), or the claimant has opted as set out in subsection (9).

Statement of tax file number

             (3)  The first kind of statement that can be made is a statement of a TFN substitution person’s tax file number. Regardless of who the TFN substitution person is, this kind of statement can be made by the claimant only.

Statement that TFN substitution person does not know what his or her tax file number is

             (4)  The second kind of statement that can be made is a statement by a TFN substitution person who was the deceased individual’s partner (as referred to in paragraph (b) of the definition of TFN substitution person in subsection 3(1)) that the TFN substitution person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (5)  The third kind of statement that can be made is a statement by the TFN substitution person who was the deceased individual’s partner (as referred to in paragraph (b) of the definition of TFN substitution person in subsection 3(1)) that the TFN substitution person:

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

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

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

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

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

How statement to be given

             (6)  A statement made by the claimant must be made in the claim. A statement made by a TFN substitution person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.

Exemption from tax file number requirement

             (7)  The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant does not know the person’s tax file number.

             (8)  The Secretary may determine that the requirement in subsection (2) does not apply in relation to a TFN substitution person if the claimant cannot obtain a statement referred to in subsection (4) or (5) in respect of the person.

             (9)  The requirement in subsection (2) does not apply in relation to a TFN substitution person if, in the claim, the claimant opted to have a CCB % of zero % applicable to the person.

49G  Bank account details or statement to be provided for claims by individuals for child care benefit to be effective

             (1)  This section sets out the bank account requirement that must be satisfied in relation to a claim by an individual for payment of child care benefit for the purposes of paragraph 49C(1)(b) (which states what is required for claims by individuals for child care benefit to be effective).

Requirement concerning bank account details

             (2)  The requirement is that the claimant provide:

                     (a)  details of a bank account maintained by the claimant alone or jointly or in common with someone else into which are to be paid:

                              (i)  amounts of child care benefit; or

                             (ii)  in the case of child care benefit by fee reduction—the amount of the difference referred to in subsection 56(1); or

                     (b)  a statement that the claimant will nominate, and provide details of, such a bank account, within 28 days after the claim is made.

How details or statement to be given

             (3)  The bank account details or statement must be provided in the claim.

Exemption from bank account requirement

             (4)  The Secretary may determine that the requirement in subsection (2) does not apply to a claimant if the Secretary considers that it is appropriate to exempt the claimant from the requirement.

49H  Restrictions on claims by an individual for payment of child care benefit by fee reduction

Claims to which section applies

             (1)  This section applies to a claim by an individual for payment of child care benefit by fee reduction for care provided by an approved child care service to a child (a fee reduction claim).

Previous claim by individual for child care benefit by fee reduction and a conditional eligibility determination has not been made or claimant already conditionally eligible

             (2)  A fee reduction claim is ineffective if at the time (the determination time) when the conditional eligibility of the claimant would be determined:

                     (a)  the claimant has previously made a claim for child care benefit by fee reduction in respect of the child; and

                     (b)  either:

                              (i)  a determination of conditional eligibility under section 50F, or of no entitlement under section 50G, has not as yet been made in respect of the previous claim; or

                             (ii)  as a result of the previous claim, a determination is in force that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.

Previous claim by individual for child care benefit by fee reduction, a conditional eligibility determination is in force but varied with effect that the claimant is not conditionally eligible and the variation can be undone

             (3)  A fee reduction claim is ineffective if:

                     (a)  at the determination time:

                              (i)  the claimant has previously made a claim for child care benefit by fee reduction in respect of the child; and

                             (ii)  a determination that the claimant is conditionally eligible for child care benefit by fee reduction is in force in respect of the previous claim; and

                            (iii)  that determination has been varied under section 58A, 61A or 62 with the effect that the claimant is not conditionally eligible for any session of care provided to the child after the determination time; and

                     (b)  the determination time is before the end of the income year following the one in which the variation took effect.

Approved child care service is already eligible for child care benefit by fee reduction for care provided to a child at risk

             (4)  A fee reduction claim is ineffective if, at the determination time, an approved child care service is eligible for child care benefit by fee reduction for care provided by the service to that child.

Restriction in subsection (4) not to apply in certain circumstances

             (5)  Subsection (4) does not apply to a claim if, in the special circumstances of the claim, the Secretary considers that subsection (4) should not apply.

49J  Restrictions on claim by individual for payment of child care benefit for past period for care provided by an approved child care service

Claims to which section applies

             (1)  This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service to a child (a past period claim).

Claim period must fall within one income year etc.

             (2)  A past period claim is ineffective if:

                     (a)  the period does not fall wholly within one income year; or

                     (b)  the period does fall wholly within one income year but the claim is made before the end of that income year or after the end of the 2 income years immediately following that income year.

Previous claim by claimant for care provided by an approved child care service for any part of the past period

             (3)  A past period claim is ineffective if the claimant has previously made a claim for payment of child care benefit for care provided by an approved child care service to the child for any part of the past period (whether or not the claim has been determined).

Subsection (3) does not apply if previous claim by claimant and claimant not entitled for failing to meet a condition in paragraph 44(1)(a), (d) or (e) of the Family Assistance Act

             (4)  Subsection (3) does not apply if:

                     (a)  the claimant has previously made a claim for payment of child care benefit for care provided to the child in the past period by an approved child care service; and

                     (b)  the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the claimant was not eligible under section 44 of the Family Assistance Act; and

                     (c)  the reason the claimant was not eligible was because the claimant failed to meet the condition in paragraph 44(1)(a), (d) or (e) of that Act.

Individual already conditionally eligible for child care benefit by fee reduction

             (5)  A past period claim is ineffective if, at any time during the past period, a determination that the claimant was conditionally eligible for child care benefit by fee reduction was in force in respect of the claimant and the child.

Previous claim by claimant for child care benefit by fee reduction, a determination of conditional eligibility is in force but varied with effect that the individual is not conditionally eligible and the variation can be undone

             (6)  A past period claim is ineffective if:

                     (a)  at the time the claim would be determined (the determination time):

                              (i)  the claimant had previously made a claim for payment of child care benefit by fee reduction in respect of the child; and

                             (ii)  a determination that the claimant is conditionally eligible for child care benefit by fee reduction is in force in respect of the previous claim; and

                            (iii)  that determination has been varied under section 58A, 61A or 62 with the effect that the claimant is not conditionally eligible for any session of care provided to the child after the determination time; and

                     (b)  the claim is made before the end of the income year following the one in which the variation mentioned in subparagraph (a)(iii) took effect.

Approved child care service is already eligible for child care benefit by fee reduction for care provided by the service to a child at risk

             (7)  A past period claim is ineffective in respect of any part of a past period during which an approved child care service was eligible for child care benefit by fee reduction for care provided to the child.

Restriction in subsection (7) not to apply in certain circumstances

             (8)  Subsection (7) does not apply to a claim if, in the special circumstances of the claim, the Secretary considers that subsection (7) should not apply.

49K  Restrictions on claim by individual for payment of child care benefit for past period for care provided by a registered carer

Claims to which section applies

             (1)  This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by a registered carer to a child (a past period claim).

Claim ineffective if relates to periods of care which occurred before the start of the period of 12 months before claim

             (2)  A past period claim is ineffective if the claim relates to a period of care which occurred before the start of the period of 12 months before the date of claim.

Previous claim by claimant for care provided in a past period by a registered carer

             (3)  A past period claim is ineffective if the claimant has previously made a claim for payment of child care benefit for care provided by a registered carer to the child for any part of the past period (whether or not the claim has been determined).

Subsection (3) does not apply if previous claim by claimant and claimant not entitled for failing to meet a condition in paragraph 45(1)(a), (f) or (g) of the Family Assistance Act

             (4)  Subsection (3) does not apply if:

                     (a)  the claimant has previously made a claim for child care benefit for care provided in the past period by a registered carer to the child; and

                     (b)  the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the claimant was not eligible under section 45 of the Family Assistance Act; and

                     (c)  the reason the claimant was not eligible was because the claimant failed to meet the condition in paragraph 45(1)(a), (f) or (g) of that Act.

49L  Restrictions on claim by individual for payment of child care benefit by single payment/in substitution because of the death of another individual

Claim to which this section applies

             (1)  This section applies to a claim (a substitution claim) by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual.

Claim must be made before the end of the income year following the one in which the death occurred

             (2)  A substitution claim is ineffective if it is made after the end of the income year following the one in which the death of the other individual occurred.

Claim for care provided by an approved child care service where a determination of conditional eligibility was in force cannot be made before the end of the income year in which the death occurred

             (3)  In the case of a substitution claim for care provided by an approved child care service if a determination of conditional eligibility was in force in respect of the other individual, the claim is ineffective in respect of a period of care provided in a particular income year if it is made before the end of that income year.

Claim for care provided by a registered carer is ineffective in respect of a period earlier than 12 months before death of other individual

             (4)  In the case of a substitution claim for care provided by a registered carer, the claim is ineffective in respect of a period of care other than the period of 12 months before the death of the other individual.

Previous claim by claimant

             (5)  A substitution claim in respect of a child and a period is ineffective if the claimant has previously made a substitution claim in respect of the child and the same period because of the death of the same other individual (whether or not that claim has been determined).

Subsection (5) does not apply if previous claim by claimant and other individual not entitled for failure to meet a condition in paragraph 44(1)(a) or (e) of the Family Assistance Act

             (6)  Subsection (5) does not apply if:

                     (a)  the claimant has previously made a substitution claim for care provided by an approved child care service to the child because of the death of the other individual; and

                     (b)  the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the other individual was not eligible under section 44 of the Family Assistance Act; and

                     (c)  the reason the other individual was not eligible was because of a failure to meet the condition in paragraph 44(1)(a) or (e) of that Act.

Subsection (5) does not apply if previous claim by claimant and other individual not entitled for failure to meet a condition in paragraph 45(1)(a) or (g) of the Family Assistance Act

             (7)  Subsection (5) does not apply if:

                     (a)  the claimant has previously made a substitution claim for care provided by a registered carer to the child; and

                     (b)  the Secretary has determined that the claimant was not entitled to be paid that child care benefit as the other individual was not eligible under section 45 of the Family Assistance Act; and

                     (c)  the reason the other individual was not eligible was because of a failure to meet the condition in paragraph 45(1)(a) or (g) of that Act.

49M  Restriction on claim by an approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk

Individual already conditionally eligible

                   A claim by an approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk is ineffective if, at the time the care is provided, a determination is in force that an individual is conditionally eligible for child care benefit by fee reduction in respect of the child.

49N  Claims may be withdrawn or varied

             (1)  A claimant who is an individual claiming for payment of child care benefit by fee reduction may withdraw or vary the claim before a determination of conditional eligibility under section 50F, or a determination of no entitlement under section 50G, has been made in respect of the claim.

             (2)  A claimant who is an individual claiming for:

                     (a)  payment of child care benefit for a past period for care provided by an approved child care service; or

                     (b)  payment of child care benefit for a past period for care provided by a registered carer; or

                     (c)  payment of child care benefit by single payment/in substitution because of the death of another individual;

may withdraw or vary the claim before the claim is determined.

             (3)  The claimant may only withdraw or vary the claim in a manner determined by the Secretary.

             (4)  If a claim is withdrawn it is taken never to have been made.

Subdivision CDeterminations to be made on claim if individual claims payment of child care benefit by fee reduction

50  Determinations on effective claim

             (1)  This Subdivision deals with the determinations the Secretary must make on claim, if an individual (the claimant) has made an effective claim for payment of child care benefit by fee reduction for care provided by an approved child care service to a child (the child).

             (2)  If a claim is not effective, it is taken not to have been made.

             (3)  The Secretary makes these determinations in respect of each child for whom the claimant has made a claim.

             (4)  The Secretary takes these determinations into account when calculating the rate at which, and the amount in which, fee reduction is applicable in respect of the care provided to the child in an income year in respect of which a determination of conditional eligibility is in force. After the end of the income year, a determination of entitlement, or no entitlement (as the case may be), is made under Subdivision D in respect of the individual’s claim.

50A  Secretary must make determinations

                   Subject to sections 50D and 50E, on claim, the Secretary must make the determinations referred to in sections 50B and 50C, if required. The determinations must be made in accordance with this Subdivision.

50B  Determination of conditional eligibility or no entitlement to be made

Determinations to be made as soon as practicable if tax file number given, claimant exempted or option indicated on claim

             (1)  If:

                     (a)  the claimant gives the Secretary, as requested under section 57B, a statement of the tax file number of each of the TFN claim persons; or

                     (b)  the claimant gives the Secretary a statement of the claimant’s tax file number and the Secretary exempts the claimant’s partner, under subsection 57B(6), from giving a statement in relation to the partner’s tax file number; or

                     (c)  the claimant opts in the claim form to have a CCB % of zero % applicable to him or her;

the Secretary must make the determination referred to in section 50F or 50G (as appropriate) as soon as practicable.

When determinations must be made if subsection (1) does not apply

             (2)  If subsection (1) does not apply in respect of the claimant, the Secretary must make the determination referred to in section 50F or 50G (as appropriate) as provided for in section 50D.

50C  Other determinations to be made if determination of conditional eligibility is made

                   If the Secretary makes a determination of conditional eligibility under section 50F, the Secretary must make the following determinations:

                     (a)  a determination of the weekly limit of hours applicable to the claimant and the child under section 50H;

                     (b)  a determination of CCB % applicable to the claimant and the child under section 50J;

                     (c)  a determination of the schooling % applicable to the claimant and the child under section 50K.

Note:          Section 50T also requires the Secretary to determine, in certain circumstances, whether or not the claimant is eligible for the special grandparent rate.

50D  Restriction on when determinations under section 50F or 50G can be made

Statement about tax file number made on claim

             (1)  If:

                     (a)  each of the TFN claim persons makes a statement of the kind set out in subsection 57B(3) or (4); or

                     (b)  one of the TFN claim persons makes a statement of the kind set out in subsection 57B(3) or (4) and the other TFN claim person gives a statement of the person’s tax file number; or

                     (c)  the TFN claim person who is the claimant makes a statement of the kind set out in subsection 57B(3) or (4) and the Secretary exempts the claimant’s partner under subsection 57B(6) from giving a statement in relation to the partner’s tax file number;

the Secretary must only make the determination referred to in section 50F or 50G (as appropriate):

                     (d)  after the Commissioner of Taxation tells the Secretary, within 28 days after the claim is made, in respect of each TFN claim person who has made a statement of the kind set out in subsection 57B(3) or (4):

                              (i)  the TFN claim person’s tax file number; or

                             (ii)  that the person has not applied for a tax file number; or

                            (iii)  that the person does not have a tax file number; or

                            (iv)  that the application by the person for a tax file number has been refused; or

                             (v)  that the person has withdrawn an application for tax file number; or

                     (e)  after 28 days after the claim is made have passed, if, within the 28 days, the Commissioner for Taxation does not tell the Secretary any of the things in respect of any TFN claim person referred to in paragraph (d).

No statement on claim about tax file number etc.

             (2)  Subject to subsections (3) and (4), if neither subsection 50B(1) nor subsection (1) of this section apply in respect of the claim, the Secretary must make the determination referred in section 50F or 50G (as appropriate) as soon as practicable.

No statement on claim about tax file number etc. and Secretary’s request for tax file number complied with

             (3)  If:

                     (a)  neither subsection 50B(1) nor subsection (1) of this section apply in respect of the claim; and

                     (b)  the Secretary makes a request under section 57C; and

                     (c)  within 28 days after the request is made, the claimant complies with the request;

the Secretary must only make the determination referred to in section 50F or 50G (as appropriate) when the claimant complies with the request.

No statement on claim about tax file number etc. and Secretary’s request for tax file number not complied with

             (4)  If:

                     (a)  neither subsection 50B(1) nor subsection (1) of this section apply in respect of the claim; and

                     (b)  the Secretary makes a request under section 57C; and

                     (c)  28 days pass after the request is made without the claimant complying with the request;

the Secretary must only make the determination referred to in section 50F or 50G (as appropriate) when the 28 days have passed.

50E  Restriction on determination under section 50F or 50G if bank account details not provided

             (1)  If the claimant makes a statement of the kind set out in paragraph 49G(2)(b), the Secretary may only make a determination under section 50F or 50G if, within 28 days after the claim is made, the person nominates, and provides details of, a bank account of a kind referred to in paragraph 49G(2)(a) into which the amount of the difference referred to in subsection 56(1) is to be paid.

             (2)  If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, make a determination under section 50F or 50G, in respect of the claim, the claim is taken never to have been made.

50F  Determination of conditional eligibility

                   If the Secretary is satisfied that the claimant, at the time the Secretary makes the determination, is conditionally eligible under section 42 of the Family Assistance Act in respect of the child, the Secretary must determine that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.

50G  Determination that no entitlement

                   If the Secretary is not satisfied that the claimant is, at the time the Secretary makes the determination, conditionally eligible under section 42 of the Family Assistance Act in respect of the child, the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of the child.

50H  Determination of weekly limit of hours

             (1)  If the Secretary makes a determination under section 50F that the claimant is conditionally eligible, the Secretary must determine the weekly limit of hours applicable to the claimant and the child.

             (2)  The limit is worked out using Subdivision G of Division 4 of Part 3 of the Family Assistance Act as if references in that Subdivision to an individual being eligible under section 43 of that Act were references to the individual being conditionally eligible under section 42 of that Act.

             (3)  The limit must be either:

                     (a)  50 hours, if a circumstance listed in subsection 54(2), (4), (6), (13) or (14) of the Family Assistance Act applies to the claimant; or

                     (b)  24 hours if paragraph (a) does not apply.

50J  Determination of CCB %

             (1)  If the Secretary makes a determination under section 50F that the claimant is conditionally eligible, the Secretary must determine the CCB % applicable to the claimant and the child.

             (2)  In making a determination of CCB %, the Secretary must:

                     (a)  determine a percentage of zero % if subsection 55(2) or 55B(1), or section 55C, applies; or

                     (b)  otherwise—use the provisions in Schedule 2 to the Family Assistance Act as if references in those provisions to a person being eligible were references to a person being conditionally eligible under section 42 of that Act.

50K  Determination of schooling %

             (1)  If the Secretary makes a determination under section 50F that the claimant is conditionally eligible, the Secretary must determine the schooling % applicable to the claimant and the child.

             (2)  In making a determination of schooling %, the Secretary must use the provisions in Schedule 2 to the Family Assistance Act as if references in those provisions to a person being eligible were references to a person being conditionally eligible under section 42 of that Act.

50L  When determinations are in force

             (1)  Subject to subsections (6) and (7), a determination of conditional eligibility under section 50F in respect of the claimant comes into force:

                     (a)  if no day is specified in the notice of determination—on the day the determination is made; or

                     (b)  on the day specified in the notice of determination;

and remains in force at all times afterwards.

             (2)  Except in the case mentioned in subsection (4), the Secretary may specify a day, not more than 4 weeks before the day the claim was made by the claimant, as the day the determination is to come into force.

             (3)  The Secretary may only specify a day under subsection (2) if the Secretary is satisfied that, if the claimant had made the claim on the specified earlier day before the day of the claim, the claimant would have been conditionally eligible on and since that specified earlier day for child care benefit by fee reduction.

             (4)  The Secretary must not specify a day under subsection (2) if:

                     (a)  a determination of conditional eligibility under section 50F was made in respect of the claim; and

                     (b)  the claim was made while an earlier determination of conditional eligibility was in force with the effect that the claimant was not conditionally eligible as a result of a variation under section 58B (failure to comply with immunisation requirement).

             (5)  A determination of a weekly limit of hours under section 50H, CCB % under section 50J and schooling % under section 50K in respect of the claimant and the child comes into force at the time the determination of conditional eligibility comes into force and remains in force while the determination of conditional eligibility is in force.

             (6)  If:

                     (a)  the Secretary makes a determination of conditional eligibility under section 50F in respect of the claimant and the child; and

                     (b)  the Secretary varies the determination of conditional eligibility with the effect that the claimant is not conditionally eligible for any session of care occurring on a day on which the determination was, or will be, in force after the day the variation begins to have effect; and

                     (c)  the claimant makes a later claim for payment of child care benefit by fee reduction;

the determination of conditional eligibility ceases to be in force by force of this subsection on the day a determination comes into force in respect of the later claim.

             (7)  If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of the claimant; and

                     (b)  the claimant informs the Secretary, in the form and manner required by the Secretary, that the claimant wants the determination of conditional eligibility to cease to be in force;

the determination ceases to be in force from a day specified in the notice under subsection (8).

             (8)  The Secretary must give the claimant notice of the cessation of the determination under subsection (7). The notice must specify the day on which the determination ceases to be in force.

             (9)  The cessation is not ineffective by reason only that the notice under subsection (8) does not fully comply with the requirements of that subsection.

           (10)  The Secretary may make notice of the cessation of the determination under subsection (7) available to the approved child care service providing care to the child who was the subject of the claim, including by making notice available to the service using an electronic interface.

50M  Notice of determinations if claimant conditionally eligible

             (1)  The Secretary must give notice of determinations made in respect of the claimant under sections 50F, 50H, 50J and 50K to the claimant.

             (2)  The notice must state:

                     (a)  that a determination of conditional eligibility under section 50F is in force in respect of the claimant; and

                     (b)  the date from which the determination came into force; and

                     (c)  the name of the child in respect of whom the claimant is conditionally eligible; and

                     (d)  the weekly limit of hours, CCB % and schooling % applicable to the claimant and the child; and

                     (e)  that the claimant may apply for review of any of the determinations in the manner set out in Part 5.

             (3)  The determinations are not ineffective by reason only that any, or all, of the requirements of subsections (1) and (2) are not complied with.

             (4)  The Secretary may make notice of the determinations made in respect of the claimant under sections 50F, 50H, 50J and 50K available to the approved child care service, or services, that are, or will be, providing care to the child, including by making the notice available to the service using an electronic interface.

50N  When determination of no entitlement is in force

             (1)  Subject to subsection (2), a determination of no entitlement under section 50G comes into force when it is made and remains in force at all times afterwards.

             (2)  If:

                     (a)  a determination of no entitlement has been made under section 50G in respect of the claimant; and

                     (b)  the claimant makes a later effective claim for payment of child care benefit by fee reduction, or for a past period, for care provided by an approved child care service;

the determination of no entitlement ceases to be in force on the day a determination comes into force in respect of the second claim.

50P  Notice of determination of no entitlement

             (1)  The Secretary must give notice to the claimant of a determination of no entitlement made in respect of the claimant under section 50G stating:

                     (a)  that the claimant is not entitled to be paid child care benefit by fee reduction in respect of the child; and

                     (b)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (2)  The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

Subdivision CADetermination of eligibility for special grandparent rate if individual determined to be conditionally eligible for child care benefit by fee reduction

50Q  Determination of eligibility for special grandparent rate

                   This Subdivision deals with the determination of eligibility for the special grandparent rate that the Secretary must make in certain circumstances if an individual (the claimant) is determined to be conditionally eligible for child care benefit by fee reduction in respect of a child.

Note:          Section 50T tells you when the Secretary must determine the claimant’s eligibility for the special rate. Section 50S tells you the criteria that must be satisfied for the claimant to be eligible for that rate. Section 50R explains who counts as a grandparent or great‑grandparent for the purposes of this Subdivision.

50R  Grandparents and great‑grandparents

             (1)  In determining, for the purposes of this Subdivision, whether an individual is a grandparent or great‑grandparent of another person, treat the following relationships as if they were biological child‑parent relationships:

                     (a)  the relationship between an adopted child and his or her adoptive parent;

                     (b)  the relationship between a step‑child and his or her step‑parent;

                     (c)  the relationship between a relationship child and his or her relationship parent.

             (2)  In subsection (1):

adoptive parent, of a person (the child), means the person who adopted the child under a law of any place (whether in Australia or not) relating to the adoption of children.

step‑parent, of a person (the child), means the person who:

                     (a)  is the current or former partner of the biological parent, adoptive parent or relationship parent of the child; and

                     (b)  is not the biological parent, adoptive parent or relationship parent of the child.

50S  Eligibility for special grandparent rate

             (1)  An individual is eligible for the special grandparent rate for a child if:

                     (a)  the individual, or the individual’s partner, is receiving:

                              (i)  a social security pension; or

                             (ii)  a social security benefit; or

                            (iii)  a service pension; or

                            (iv)  an income support supplement under Part IIIA of the Veterans’ Entitlements Act 1986; and

                     (b)  the individual, or the individual’s partner, is the grandparent or great‑grandparent of the child; and

                     (c)  the individual, or the individual’s partner, is the principal carer of the child.

             (2)  For the purposes of subsection (1), a person is the principal carer of another person (the child) if the person:

                     (a)  is the sole or major provider of ongoing daily care for the child; and

                     (b)  has substantial autonomy for the day‑to‑day decisions about the child’s care, welfare and development.

             (3)  An individual is also eligible for the special grandparent rate for a child if the individual, or the individual’s partner, is eligible under subsection (1) for the special grandparent rate for another child.

50T  Secretary must determine claimant’s eligibility for special grandparent rate in certain circumstances

When Secretary must determine whether claimant eligible for special grandparent rate

             (1)  If subsection (2), (3) or (4) is satisfied, the Secretary must determine whether or not the claimant is eligible for the special grandparent rate for a child.

Request for special grandparent rate determination made in claim for determination of conditional eligibility

             (2)  This subsection is satisfied if:

                     (a)  the claimant:

                              (i)  makes a claim (whether before or after 1 January 2005) for payment of child care benefit by fee reduction for care provided by an approved child care service to the child; and

                             (ii)  informs the Secretary, in the form and manner (if any) required by the Secretary, in or in connection with the claim that the claimant wants the Secretary to make a determination under this section in relation to the claimant and the child; and

                     (b)  in response to the claim, the Secretary makes, on or after 1 January 2005, a determination under section 50F with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.

Application for special grandparent rate determination after determination of conditional eligibility made

             (3)  This subsection is satisfied if:

                     (a)  a determination under section 50F (whether made before or after 1 January 2005) is in force with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child; and

                     (b)  the claimant applies, in the form and manner (if any) required by the Secretary, for a determination under this section in relation to the child.

Transitional situation

             (4)  This subsection is satisfied if, immediately before 1 January 2005:

                     (a)  a determination is in force under section 50F that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child; and

                     (b)  the determination in force under section 50H of the weekly limit of hours applicable to the claimant and the child is based on the claimant, or the claimant’s partner, being taken to satisfy the work/training/study test because of the determination that was made under subsection 14(2) of the Family Assistance Act on 28 October 2004; and

                     (c)  the claimant, or the claimant’s partner, is receiving:

                              (i)  a social security pension; or

                             (ii)  a social security benefit; or

                            (iii)  a service pension; or

                            (iv)  an income support supplement under Part IIIA of the Veterans’ Entitlements Act 1986.

Determinations not legislative instruments

             (5)  A determination made under subsection (1), or a variation of such a determination, is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

50U  Criteria for making determination

                   The Secretary must determine under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child if:

                     (a)  a determination under section 50F with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child is in force; and

                     (b)  the Secretary is satisfied that the claimant is eligible for the special grandparent rate for the child (see section 50S).

Otherwise the Secretary must determine that the claimant is not eligible for the special grandparent rate for the child.

50V  Notice of determination that claimant eligible for special grandparent rate

             (1)  The Secretary must give notice of a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child to the claimant.

             (2)  The notice must state:

                     (a)  the names of the claimant and the child; and

                     (b)  that the claimant is eligible for the special grandparent rate for the child; and

                     (c)  the date from which the determination comes into force; and

                     (d)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (3)  The determination is not ineffective by reason only that any, or all, of the requirements of subsections (1) and (2) are not complied with.

             (4)  The Secretary may make notice of a determination under subsection 50T(1) available to the approved child care service, or services, that are, or will be, providing care to the child, including by making the notice available to the service using an electronic interface.

50W  Notice of determination that claimant not eligible for special grandparent rate

             (1)  The Secretary must give notice of a determination under subsection 50T(1) that the claimant is not eligible for the special grandparent rate for a child to the claimant.

             (2)  The notice must state:

                     (a)  that the claimant is not eligible for the special grandparent rate for the child; and

                     (b)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (3)  The determination is not ineffective by reason only that any, or all, of the requirements of subsections (1) and (2) are not complied with.

50X  When determination that claimant is eligible for special grandparent rate is in force

             (1)  Subject to subsection (4), a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child comes into force:

                     (a)  if no day is specified in the notice of determination—on the day the determination is made; or

                     (b)  on the day specified in the notice of determination.

             (2)  The Secretary may specify a day, not more than 4 weeks before the day on which the claimant made the claim or application in response to which the determination was made by the Secretary, as the day the determination is to come into force.

             (3)  The Secretary may only specify a day under subsection (2) if:

                     (a)  the Secretary is satisfied that the claimant was eligible for the special grandparent rate for the child on and since that specified earlier day; and

                     (b)  the day does not occur before 1 January 2005.

             (4)  A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child comes into force on 1 January 2005 if the Secretary makes the determination because of subsection 50T(4).

             (5)  A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child may be varied in accordance with this Division.

             (6)  A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child remains in force, as varied from time to time, while the determination under section 50F of the claimant’s conditional eligibility in respect of the child is in force.

50Y  When determination that claimant is not eligible for special grandparent rate is in force

                   A determination under subsection 50T(1) that the claimant is not eligible for the special grandparent rate for the child:

                     (a)  comes into force when it is made; and

                     (b)  cannot be varied under this Division; and

                     (c)  subject to paragraph (d), remains in force while the determination under section 50F of the claimant’s conditional eligibility in respect of the child is in force; and

                     (d)  ceases to have effect if a subsequent determination under subsection 50T(1) that the claimant is, or is not, eligible for the special grandparent rate for the child comes into force.

Note:          Paragraph (d)—a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate can be made if the claimant makes a fresh application for a determination of the claimant’s eligibility for that rate.

Subdivision CBCalculating the rate and amount of fee reductions

50Z  Calculating the rate and amount of fee reductions—individual conditionally eligible

             (1)  If:

                     (a)  a determination of conditional eligibility for child care benefit by fee reduction under section 50F is in force in respect of an individual (the claimant) and a child for a session or sessions of care provided by the service in a week; and

                     (b)  the service gives a report under subsection 219N(1) in respect of the individual and the child in respect of the week;

the Secretary must calculate the rate at which, and the amount in which, the Secretary considers fee reduction is applicable in respect of the session or sessions of care provided in the week.

Note:          The rate may be a zero rate and the amount a nil amount (see section 4A).

             (2)  In calculating the rate and amount, the Secretary must take into account all of the following decisions:

                     (a)  determinations made under this Act and under the Family Assistance Act by the Secretary in respect of the claimant and the child;

                     (b)  certificates given by the service in respect of the claimant and the child that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act;

                     (c)  certificates given by the service setting a rate of fee reductions under subsection 76(1) of the Family Assistance Act in respect of the claimant and the child.

             (3)  The Secretary must notify the approved child care service of the rate and amount calculated.

             (4)  The notice must be given in the form, and in the manner or way, approved by the Secretary.

             (5)  Without limiting subsection (4), the Secretary may approve notification of the rate and amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.

50ZA  Revising the rate and amount calculation

             (1)  The Secretary may recalculate the rate at which, and the amount in which, the Secretary considers fee reduction is applicable in respect of a session or sessions of care provided by the service to the child in the week, provided no determination has been made under section 51B of the rate at which and the amount in which the Secretary considers the claimant eligible for the income year in which the week falls.

Note:          The recalculated rate may be a zero rate and the recalculated amount a nil amount (see section 4A).

             (2)  Subject to subsection (3), the Secretary must notify the approved child care service of the recalculated rate and amount.

             (3)  The Secretary need not notify the approved child care service of the recalculated rate and amount if the rate or amount is reduced, and the recalculation is for a reason other than the substitution or withdrawal by the service of a report given under section 219N.

             (4)  The notice must be given in the form, and in the manner or way, approved by the Secretary.

             (5)  Without limiting subsection (4), the Secretary may approve notification of the recalculated rate and amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.

50ZB  Calculating the amount of child care benefit by fee reduction—service eligible

             (1)  If:

                     (a)  an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for a session or sessions of care provided by the service to a child at risk; and

                     (b)  the service gives a report under subsection 219N(2) in respect of the child in respect of a week;

the Secretary must calculate the amount in which the Secretary considers child care benefit by fee reduction is applicable in respect of the child in respect of the week.

             (2)  In calculating the amount, the Secretary must take into account all of the following decisions:

                     (a)  determinations made under this Act and under the Family Assistance Act by the Secretary in respect of the child;

                     (b)  certificates given by the service in respect of the child that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(4) of the Family Assistance Act;

                     (c)  certificates given by the service setting a rate of child care benefit by fee reduction under subsection 76(2) of the Family Assistance Act in respect of the child.

             (3)  The Secretary must notify the approved child care service of the amount calculated.

             (4)  The notice must be given in the form, and in the manner or way, approved by the Secretary.

             (5)  Without limiting subsection (4), the Secretary may approve notification of the amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.

50ZC  Revising the rate and amount calculation

             (1)  The Secretary may recalculate the amount in which the Secretary considers child care benefit by fee reduction is applicable in respect of a session or sessions of care provided to the child in the week, provided no determination has been made under section 54B of the amount in which the Secretary considers the service eligible in respect of the care provided to the child for the financial year in which the week falls.

             (2)  Subject to subsection (3), the Secretary must notify the approved child care service of the recalculated amount.

             (3)  The Secretary need not notify the approved child care service of the recalculated amount if the amount is reduced, and the recalculation is for a reason other than the substitution or withdrawal by the service of a report given under section 219N.

             (4)  The notice must be given in the form, and in the manner or way, approved by the Secretary.

             (5)  Without limiting subsection (4), the Secretary may approve notification of the recalculated amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.

Subdivision DDetermination of entitlement if individual determined to be conditionally eligible for child care benefit by fee reduction

51  Determination to be made if determination of conditional eligibility in force

                   This Subdivision deals with determination of entitlement if a determination of conditional eligibility under section 50F is in force in respect of an individual (the claimant) and a child (the child) at any time during an income year.

51A  Secretary must determine entitlement

             (1)  If a determination of conditional eligibility in respect of the claimant and the child is in force during an income year, the Secretary must determine the claimant’s entitlement to be paid child care benefit by fee reduction in respect of the income year.

             (2)  The determination of entitlement is made after the end of each income year in respect of which the claimant is conditionally eligible in respect of the child.

51B  Determination of entitlement

             (1)  If the Secretary is satisfied:

                     (a)  that the claimant is eligible under section 43 of the Family Assistance Act for child care benefit by fee reduction in respect of one or more sessions of care provided by an approved child care service to the child during the income year; and

                     (b)  that, if the claimant were to be entitled to child care benefit by fee reduction in respect of the sessions, the rate of benefit would be more than a zero rate;

the Secretary must determine that the claimant is entitled to be paid child care benefit by fee reduction for the sessions. The determination must include the rate at which, and the amount in which, the Secretary considers the claimant eligible for the year.

             (2)  In making the determination of entitlement, the Secretary takes into account all of the following decisions:

                     (a)  determinations made under this Act and under section 81 of the Family Assistance Act by the Secretary in respect of the claimant and the child;

                     (b)  certificates given by the service in respect of the claimant and the child that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(3) of the Family Assistance Act;

                     (c)  certificates given by the service setting a rate of child care benefit under subsection 76(1) of the Family Assistance Act in respect of the claimant and the child.

51C  Determination that no entitlement

             (1)  If the Secretary:

                     (a)  is satisfied that the claimant is eligible as mentioned in paragraph 51B(1)(a) in respect of care provided to a child by an approved child care service during an income year; but

                     (b)  is not satisfied as mentioned in paragraph 51B(1)(b) that, if the claimant were to be entitled to child care benefit, the rate of benefit would be more than a zero rate;

the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of that care.

             (2)  If the Secretary is not satisfied that the claimant is eligible as mentioned in paragraph 51B(1)(a) in respect of care provided to a child by an approved child care service during an income year, the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of that care.

51D  When determination is in force

                   A determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.

51E  Notice of determination

             (1)  The Secretary must give notice of a determination under this Subdivision to the claimant, stating:

                     (a)  the income year in respect of which the determination is made; and

                     (b)  whether, under the determination, the claimant is entitled to be paid child care benefit by fee reduction for the child for the income year; and

                     (c)  if the claimant is so entitled:

                              (i)  the name of the child in respect of whom the claimant is entitled; and

                             (ii)  the amount of the entitlement; and

                            (iii)  the total amount of the fee reductions (if any) that an approved child care service providing care to the child is required, under section 219B, to pass on to the claimant in respect of sessions of care provided to the child during the income year; and

                            (iv)  if the amount of the entitlement is greater than the amount of the fee reductions—the amount of the difference, how it will be paid and to whom it will be paid; and

                             (v)  if the amount of the entitlement is less than the amount of the fee reductions—the amount of the difference, the fact that the amount is a debt, information relating to how, and from whom, the debt will be recovered; and

                     (d)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (2)  The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

Subdivision EDetermination of entitlement if individual claims payment of child care benefit for a past period

52  Determination on effective claim

             (1)  This Subdivision deals with determination of entitlement if an individual (the claimant) has made an effective claim for payment of child care benefit for a past period for care provided by an approved child care service or a registered carer to a child (the child).

             (2)  If a claim is not effective, it is taken not to have been made.

             (3)  The Secretary makes a determination of entitlement in respect of each child for whom the claimant has made a claim.

52A  Secretary must determine claim

                   Subject to sections 52B, 52C and 52D, after the effective claim is made by the claimant, the Secretary must determine the claim in accordance with this Subdivision.

52B  Restriction on determining claim where bank account details not provided

             (1)  If the claimant makes a statement of the kind set out in paragraph 49G(2)(b), the Secretary can only determine the claim if, within 28 days after the claim is made, the claimant nominates, and provides details of, a bank account of a kind referred to in paragraph 49G(2)(a) into which the amount of the entitlement to child care benefit is to be paid.

             (2)  If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

52C  Restriction on determining claim where tax file number not provided etc.

             (1)  If a TFN claim person makes a statement of the kind set out in subsection 49E(4) or (5), the Secretary can only determine the claim if the Commissioner of Taxation tells the Secretary the person’s tax file number.

             (2)  If the Secretary cannot determine the claim under subsection (1) because the Commissioner of Taxation tells the Secretary that:

                     (a)  the person does not have a tax file number; or

                     (b)  the person has not applied for a tax file number; or

                     (c)  an application by the person for a tax file number has been refused; or

                     (d)  the person has withdrawn an application for a tax file number;

the claim is taken never to have been made.

52D  Restriction on determining claim for care provided by an approved child care service where tax assessment not made

                   If:

                     (a)  the claim is one for payment of child care benefit for a past period for care provided by an approved child care service; and

                     (b)  in the claim, the claimant did not opt to have a CCB % of zero % applicable to him or her; and

                     (c)  one or more TFN claim persons are required to lodge an income tax return for the income year in which the past period falls; and

                     (d)  at the time the claim is made, an assessment has not been made under the Income Tax Assessment Act 1936 of the tax payable on each of those TFN claim persons’ taxable income for that income year;

the Secretary can only determine the claim when the assessment has been made.

52E  Determination of entitlement—claim for care provided by an approved child care service

                   If:

                     (a)  the claim is for payment of child care benefit for a past period for care provided by an approved child care service; and

                     (b)  the Secretary is satisfied that the claimant is eligible under section 44 of the Family Assistance Act in respect of the period; and

                     (c)  the Secretary is satisfied that, if the claimant were to be entitled to be paid child care benefit in respect of the period, the amount of the entitlement would be more than a nil amount;

the Secretary must determine that the claimant is entitled to be paid child care benefit for the past period in respect of the child and the amount of the entitlement.

52F  Determination of entitlement—claim for care provided by a registered carer

                   If:

                     (a)  the claim is for payment of child care benefit for a past period for care provided by a registered carer; and

                     (b)  the Secretary is satisfied that the claimant is eligible under section 45 of the Family Assistance Act in respect of the period;

the Secretary must determine that the claimant is entitled to be paid child care benefit for the past period in respect of the child and the amount of the entitlement.

52G  Determination that no entitlement

             (1)  If the Secretary:

                     (a)  is satisfied that the claimant is eligible as mentioned in paragraph 52E(b) in respect of care provided to a child by an approved child care service during a past period; but

                     (b)  is not satisfied as mentioned in paragraph 52E(c) that, if the claimant were to be entitled to be paid child care benefit, the entitlement would be more than a nil amount;

the Secretary must determine that the claimant is not entitled to be paid child care benefit for the past period in respect of that care.

             (2)  If the Secretary is not satisfied that the claimant is eligible as mentioned in paragraph 52E(b) in respect of care provided to a child by an approved child care service during a past period, the Secretary must determine that the claimant is not entitled to be paid child care benefit for the past period in respect of that care.

             (3)  If the Secretary is not satisfied as mentioned in section 52F, the Secretary must determine that the claimant is not entitled to be paid child care benefit for the past period in respect of the child.

52H  When a determination is in force

             (1)  Subject to subsections (2) and (3), a determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.

Note:          A determination under subsection 52G(1) may cease to have effect under section 60.

             (2)  If:

                     (a)  the claim is for payment of child care benefit for a past period for care provided by an approved child care service; and

                     (b)  a determination of no entitlement is made under subsection 52G(2) in respect of the claimant and the child as the claimant is not eligible under section 44 of the Family Assistance Act because of a failure to meet a requirement in paragraph 44(1)(a), (d) or (e) of that Act; and

                     (c)  the claimant makes a later effective claim for payment of child care benefit for a past period for care provided by an approved child care service to the child;

the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.

             (3)  If:

                     (a)  the claim is for payment of child care benefit for a past period for care provided by a registered carer; and

                     (b)  a determination of no entitlement is made under subsection 52G(3) in respect of the claimant and the child as the claimant is not eligible under section 45 of the Family Assistance Act because of a failure to meet a requirement in paragraph 45(1)(a), (f) or (g) of that Act; and

                     (c)  the claimant makes a later effective claim for payment of child care benefit for a past period for care provided by a registered carer to the child;

the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.

52J  Notice of determination

             (1)  The Secretary must give notice of a determination under this Subdivision to the claimant, stating:

                     (a)  whether the claimant is entitled to be paid child care benefit for a past period in respect of the child under the determination; and

                     (b)  if the claimant is so entitled:

                              (i)  the name of the child in respect of whom the claimant is entitled; and

                             (ii)  the period in respect of which the determination is made; and

                            (iii)  the amount of the entitlement, how it is to be paid and to whom it will be paid; and

                            (iv)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (2)  The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

Subdivision FDetermination of entitlement if individual claims payment of child care benefit by single payment/in substitution

53  Determination on effective claim

             (1)  This Subdivision deals with determination of entitlement if an individual (the claimant) has made an effective claim for payment of child care benefit by single payment/in substitution because of the death of another individual in respect of a child (the child).

             (2)  If a claim is not effective, it is taken not to have been made.

53A  Secretary must determine claim

                   Subject to sections 53B and 53C, after the effective claim is made by the claimant, the Secretary must determine the claim in accordance with this Subdivision.

53B  Restriction on determining claim where bank account details not provided

             (1)  If the claimant makes a statement of the kind set out in paragraph 49G(2)(b), the Secretary can only determine the claim if, within 28 days after the claim is made, the claimant nominates, and provides details of, a bank account of a kind referred to in paragraph 49G(2)(a) into which the amount of the entitlement to child care benefit is to be paid.

             (2)  If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

53C  Restriction on determining claim where tax file number not provided etc.

             (1)  If a TFN substitution person makes a statement of the kind set out in subsection 49F(4) or (5), the Secretary can only determine the claim concerned if the Commissioner of Taxation tells the Secretary the person’s tax file number.

             (2)  If the Secretary cannot determine the claim under subsection (1) because the Commissioner of Taxation tells the Secretary that:

                     (a)  the person does not have a tax file number; or

                     (b)  the person has not applied for a tax file number; or

                     (c)  an application by the person for a tax file number has been refused; or

                     (d)  the person has withdrawn an application for a tax file number;

the claim is taken never to have been made.

53D  Determination of entitlement

                   If the Secretary is satisfied that:

                     (a)  the claimant is eligible for child care benefit under section 46 of the Family Assistance Act in respect of the child; and

                     (b)  if the claimant were to be entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child, the amount of the entitlement would be more than a nil amount;

the Secretary must determine that the claimant is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child for the amount the Secretary considers the claimant eligible.

53E  Determination that no entitlement

             (1)  If the Secretary:

                     (a)  is satisfied that the claimant is eligible as mentioned in paragraph 53D(a); but

                     (b)  is not satisfied as mentioned in paragraph 53D(b) that, if the claimant were to be entitled to be paid child care benefit, the amount of the entitlement would be more than a nil amount;

the Secretary must determine that the claimant is not entitled, in respect of the child, to be paid child care benefit by single payment/in substitution because of the death of another individual.

             (2)  If the Secretary is not satisfied that the claimant is eligible as mentioned in paragraph 53D(a), the Secretary must determine that the claimant is not entitled, in respect of the child, to be paid child care benefit by single payment/in substitution because of the death of another individual.

53F  When a determination is in force

             (1)  Subject to subsections (2) and (3), a determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.

Note:          A determination under subsection 53E(1) may cease to have effect under section 60A.

             (2)  If:

                     (a)  the claim is for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service to the child; and

                     (b)  a determination of no entitlement is made under subsection 53E(2) in respect of the claimant because the other individual was not eligible under section 44 of the Family Assistance Act because of a failure to meet a requirement in paragraph 44(1)(a) or (e) of that Act; and

                     (c)  the claimant makes a later effective claim for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by the service to the child;

the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.

             (3)  If:

                     (a)  the claim is for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by a registered carer to the child; and

                     (b)  a determination of no entitlement is made under subsection 53E(2) in respect of the claimant because the other individual was not eligible under section 45 of the Family Assistance Act because of a failure to meet a requirement in paragraph 45(1)(a) or (g) of that Act; and

                     (c)  the claimant makes a later effective claim for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by a registered carer to the child;

the determination of no entitlement ceases to be in force on the day a determination is made in respect of the later claim.

53G  Notice of determination

             (1)  The Secretary must give notice of a determination under this Subdivision to the claimant, stating:

                     (a)  whether the claimant is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child under the determination; and

                     (b)  if the claimant is so entitled, the amount of the entitlement, how it is to be paid and to whom it will be paid; and

                     (c)  that the claimant may apply for review of the determination under Part 5.

             (2)  The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

Subdivision GDetermination of entitlement if claim by approved child care service for payment of child care benefit by fee reduction for care provided by the service to a child at risk

54  Determination on effective claim

             (1)  This Subdivision deals with determination of entitlement if an approved child care service (the claimant) has made a claim for payment of child care benefit by fee reduction for care provided by the service to a child at risk (the child).

             (2)  If a claim is not effective, it is taken not to have been made.

             (3)  The claimant is taken to have made a claim under subsection 49(2).

             (4)  A determination of a weekly limit of hours is taken to have been made in respect of the claimant (see section 54C).

54A  Secretary must determine claim

                   If an effective claim is made by the claimant, the Secretary must determine the claim in accordance with this Subdivision.

54B  Determination of entitlement

             (1)  If the claimant is eligible under section 47 of the Family Assistance Act for one or more sessions of care provided by the claimant to the child (child at risk) during a financial year, the Secretary must determine:

                     (a)  that the claimant is entitled to be paid child care benefit by fee reduction for the sessions at the rate;

                              (i)  certified by the claimant under subsection 76(2) of the Family Assistance Act; or

                             (ii)  determined by the Secretary under subsection 81(4) of that Act; and

                     (b)  the amount for which the Secretary considers the claimant eligible.

             (2)  In making the determination of entitlement, the Secretary takes into account all of the following decisions:

                     (a)  certificates given by the claimant that relate to a weekly limit of hours under subsection 54(10), 55(6) or 56(4) or a rate under subsection 76(2) of the Family Assistance Act;

                     (b)  determinations made by the Secretary in respect of the claimant.

             (3)  The Secretary does not determine an approved child care service’s eligibility under section 47 of the Family Assistance Act (see section 47 of the Family Assistance Act).

             (4)  A determination of entitlement is made after the end of the financial year in which the service was eligible under section 47 of the Family Assistance Act for care provided to the child.

             (5)  A determination of entitlement comes into force when it is made and remains in force at all times afterwards.

54C  Determination of weekly limit of hours

             (1)  If the claimant is eligible under section 47 of the Family Assistance Act for one or more sessions of care provided by the claimant to the child at risk during a financial year, the Secretary is taken to have made a determination of a weekly limit of hours applicable to the service in respect of the child. The limit is 24 hours.

             (2)  A determination of a weekly limit of hours comes into force immediately after the service becomes eligible under section 47 of the Family Assistance Act and remains in force at all times afterwards.

54D  Notice of determination

             (1)  The Secretary must give notice of a determination under section 54B to the claimant stating:

                     (a)  the name of the child in respect of whom the service is entitled to be paid child care benefit by fee reduction; and

                     (b)  the amount of the entitlement; and

                     (c)  the total amount of the child care benefit by fee reduction (if any) that the claimant is required, under section 219BA, to pass on to itself in respect of sessions of care provided to the child during the financial year; and

                     (d)  if the amount of the entitlement is greater than the total amount—the amount of the difference and how it will be paid; and

                     (e)  if the amount of the entitlement is less than the total amount—the amount of the difference, the fact that the amount is a debt, information relating to how and from whom the debt will be recovered; and

                      (f)  the period or periods in the financial year preceding the one in which the determination under section 54B is made during which the claimant provided the care for which the claimant is eligible; and

                     (g)  that the claimant may apply for review of the determination in the manner set out in Part 5.

             (2)  The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

Subdivision HMatters relating to determinations

55  Determination of CCB % under section 50J may be based on estimate, indexed estimate or indexed actual income

             (1)  If:

                     (a)  a CCB % applicable to a claimant who is an individual is required to be determined under section 50J; and

                     (b)  subparagraph 7(a)(ii) of Part 4 of Schedule 2 to the Family Assistance Act does not apply to the claimant; and

                     (c)  the information about an amount needed by the Secretary for the calculation of the CCB % is not available (for example, because the adjusted taxable income of the claimant or another individual cannot be known until after the end of the relevant income year); and

                     (d)  the claimant gives the Secretary an estimate of the amount needed; and

                     (e)  the Secretary considers the estimate to be reasonable; and

                      (f)  since the estimate was given, the Secretary has not given the individual a notice under subsection 55AA(2) or 55AB(2) with a start day that has arrived or passed;

the Secretary may determine the CCB % applicable to the claimant on the basis of the estimate.

             (2)  This subsection applies if the claimant does not give the Secretary an estimate of the amount needed that the Secretary considers reasonable.

Note:          This means the Secretary must determine the CCB % of the claimant to be zero % (see subsection 50J(2)).

             (3)  If:

                     (a)  a CCB % applicable to a claimant who is an individual is required to be calculated under Schedule 2 to the Family Assistance Act for the purpose of varying a determination of CCB % under Subdivision M, N, P, R, S or V of Division 4 of this Part; and

                     (b)  the information about an amount needed by the Secretary to calculate the CCB % applicable to the claimant is not available; and

                     (c)  the Secretary has given the claimant a notice under subsection 55AA(2) or 55AB(2) with a start day that has arrived or passed; and

                     (d)  since the notice was given, the claimant has not given the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable;

the Secretary may determine the CCB % applicable to the claimant on the basis of the indexed estimate or indexed actual income stated in the notice (or, if the Secretary has given the claimant more than one notice with a start day that has arrived or passed—the notice with the most recent start day).

Note:          Section 55AC affects the meaning of this provision for members of couples.

55AA  Indexed estimates

             (1)  The Secretary may calculate an indexed estimate for an individual under subsection (5), with a start day chosen by the Secretary, if:

                     (a)  the individual is a claimant, or the partner of a claimant, for child care benefit; and

                     (b)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant and the effect of the former determination is that the claimant is conditionally eligible for child care benefit by fee reduction; and

                     (c)  the CCB % is worked out on the basis of an estimate of the claimant’s adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant.

Note:          Section 55AC affects the meaning of paragraph (1)(c) for members of couples.

             (2)  If the Secretary calculates an indexed estimate for the individual, the Secretary may give the claimant a notice:

                     (a)  stating the indexed estimate for the individual; and

                     (b)  specifying the start day used in the Secretary’s calculation (which must be a Monday at least 14 days after the day on which the notice is given).

             (3)  The Secretary must not give a notice under subsection (2) stating an indexed estimate for the individual with a start day in an income year if the Secretary has already given a notice under subsection (2) stating an indexed estimate for that individual with a start day in the same income year.

             (4)  A notice given to a claimant under subsection (2) stating an indexed estimate for an individual has no effect if, before the start day specified in the notice for the indexed estimate, the Secretary gives the claimant a notice under subsection 55AB(2) stating an indexed actual income for the same individual. Any such notice under subsection 55AB(2) must specify a start day that is no earlier than the start day specified in the superseded notice.

             (5)  Calculate an indexed estimate (which may be nil) for the individual by multiplying the individual’s current ATI number (see subsection (6)) by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

             (6)  For the purposes of subsection (5), the individual’s current ATI number is:

                     (a)  if, at the time of calculation, the Secretary has given the claimant a notice under subsection 55AB(2) stating an indexed actual income for the individual with a start day that has not arrived—the indexed actual income stated in the notice; or

                     (b)  if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 55 (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 to the Family Assistance Act); or

                     (c)  if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 55 if the individual were the claimant (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 to the Family Assistance Act).

             (7)  A notice under subsection (2) is not a legislative instrument.

55AB  Indexed actual incomes

             (1)  The Secretary may calculate an indexed actual income for an individual under subsection (4), with a start day chosen by the Secretary, if:

                     (a)  the individual is a claimant for, or the partner of a claimant for, child care benefit; and

                     (b)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant and the effect of the former determination is that the claimant is conditionally eligible for child care benefit by fee reduction; and

                     (c)  the CCB % is worked out on the basis of an indexed estimate for the claimant or an indexed actual income for the claimant; and

                     (d)  since the claimant was last given a notice under subsection 55AA(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for an individual, the claimant has not given the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

                     (e)  the adjusted taxable income for an income year (actual income) of the individual (disregarding the effect for couples of clause 3 of Schedule 3 to the Family Assistance Act) becomes known to the Secretary and it is the most recent income year for which the individual’s actual income is known to the Secretary.

Note:          Section 55AC affects the meaning of paragraph (1)(c) for members of couples.

             (2)  If:

                     (a)  the Secretary calculates an indexed actual income for the individual; and

                     (b)  the indexed actual income is greater than the individual’s current ATI number (see subsection (5));

the Secretary may give the claimant a notice:

                     (c)  stating the indexed actual income for the individual; and

                     (d)  specifying the start day used in the Secretary’s calculation (which must be a Monday at least 14 days after the day on which the notice is given).

             (3)  A notice given to a claimant under subsection (2) stating an indexed actual income for an individual has no effect if, before the start day specified in the notice, the Secretary gives the claimant another notice under that subsection or a notice under subsection 55AA(2) stating an indexed estimate or indexed actual income for the same individual. Any other such notice must specify a start day that is no earlier than the start day specified in the superseded notice.

             (4)  Calculate an indexed actual income (which may be nil) for the individual by multiplying the actual income of the individual which became known to the Secretary by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

             (5)  For the purposes of paragraph (2)(b), the individual’s current ATI number is:

                     (a)  if, at the time of calculation, the Secretary has given the claimant a notice under subsection 55AA(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for the individual with a start day that has not arrived—the indexed estimate or indexed actual income stated in the notice; or

                     (b)  if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 55 (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 to the Family Assistance Act); or

                     (c)  if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 55 if the individual were the claimant (disregarding the effect for couples of section 55AC of this Act and clause 3 of Schedule 3 to the Family Assistance Act).

             (6)  A notice under subsection (2) is not a legislative instrument.

55AC  Indexed estimates and indexed actual incomes for members of couples

             (1)  This section applies in relation to any individual who is a member of a couple.

             (2)  For the purposes of the Family Assistance Act, any reference in this Act to CCB % being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (3).

             (3)  The reference is taken to be a reference to CCB % being determined or worked out on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with:

                     (a)  the indexed estimate or indexed actual income for the individual’s partner stated in a notice given to:

                              (i)  if the individual is the claimant for child care benefit—the individual; or

                             (ii)  if the individual is the partner of the claimant for child care benefit—the individual’s partner;

                            under subsection 55AA(2) or 55AB(2) with a start day that has arrived or passed (or, if the Secretary has given more than one such notice—the notice with the most recent start day); or

                     (b)  if there is no such indexed estimate or indexed actual income—a reasonable estimate of the adjusted taxable income of the individual’s partner (disregarding the effect of clause 3 of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.

55A  Determination of rate under Subdivision F may be based on estimate

             (1)  If:

                     (a)  an individual’s rate of child care benefit for care provided by an approved child care service is required to be calculated for the purpose of making a determination under Subdivision F; and

                     (b)  the information about an amount needed by the Secretary to calculate the CCB % (CCB % is needed to calculate rate) applicable to the individual is not available; and

                     (c)  the claimant gives the Secretary an estimate of the amount needed; and

                     (d)  the Secretary considers the estimate to be reasonable;

the Secretary may determine the rate of child care benefit on the basis of the estimate.

             (2)  If the claimant does not give the Secretary an estimate of the amount needed that the Secretary considers reasonable, the CCB % is zero %.

55B  CCB % applicable to individual is zero % when certain other information not provided

             (1)  This subsection applies if:

                     (a)  an individual’s CCB % is required to be determined under section 50J; and

                     (b)  the care in the claim concerned is care provided by an approved child care service; and

                     (c)  either of the following situations arises:

                              (i)  the individual does not give the Secretary information needed to work out the number of children the individual has in care of a particular kind;

                             (ii)  the claimant opted to have a CCB % of zero % applicable to him or her.

Note:          This means the Secretary must determine the CCB % of the claimant to be zero % (see subsection 50J(2)).

             (2)  If:

                     (a)  the rate of child care benefit is required to be calculated for the purpose of making a determination of entitlement under Subdivision E or F; and

                     (b)  the care in the claim concerned is care provided by an approved child care service; and

                     (c)  either of the following situations arises:

                              (i)  the individual, or if the individual has died, another individual making a claim for child care benefit by single payment/in substitution because of the death of that individual, does not give the Secretary information needed to work out the number of children the individual has, or had, in care of a particular kind;

                             (ii)  the claimant opted to have a CCB % of zero % applicable to him or her;

the CCB % applicable to the claimant is zero %.

55C  CCB % applicable to individual when tax file number information not given

                   This section applies if:

                     (a)  either:

                              (i)  the Secretary makes a determination of conditional eligibility in respect of a claimant under section 50F in the situation referred to in subparagraph 50D(1)(d)(ii), (iii), (iv) or (v); or

                             (ii)  the Secretary makes a determination of conditional eligibility in respect of a claimant under section 50F in the situation referred to in subsection 50D(4); and

                     (b)  the claimant’s CCB % is required to be determined under section 50J.

Note:          This means the Secretary must determine the CCB % of the claimant to be zero % (see subsection 50J(2)).

55D  Schooling % applicable to individual when certain information not provided

                   If:

                     (a)  either:

                              (i)  an individual’s schooling % is required to be determined under section 50K; or

                             (ii)  an individual’s rate is required to be calculated for the purpose of making a determination of entitlement under Subdivision E or F for care provided by an approved child care service; and

                     (b)  the individual, or if the individual has died, another individual making a claim for child care benefit by single payment/in substitution because of the death of that individual, does not give the Secretary information about whether the child is a school child;

the Secretary must determine 85% as the schooling %.

Subdivision JPayment

56  Payment in respect of claim for child care benefit by fee reduction if claim by individual

             (1)  If:

                     (a)  a claimant who is an individual is entitled to be paid child care benefit by fee reduction for sessions of care provided by an approved child care service during an income year; and

                     (b)  the service is required, under section 219B, to pass on to the claimant a fee reduction for those sessions of care; and

                     (c)  the amount of the entitlement is greater than the total amount which the service is obliged to pass on to the claimant under that section for those sessions of care;

the Secretary must pay the amount of the difference to the claimant at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

Secretary may make direction as to the manner of making payments

             (3)  The Secretary may direct that the whole or a part of an amount which is to be paid under this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

             (4)  This section is subject to Part 4 and to Division 3 of Part 8B.

56A  Payment of child care benefit for a past period and by single payment/in substitution

             (1)  If a claimant who is an individual:

                     (a)  is entitled to be paid child care benefit for a past period for care provided by:

                              (i)  an approved child care service; or

                             (ii)  a registered carer; or

                     (b)  is entitled to be paid child care benefit by single payment/in substitution;

the Secretary must pay the amount of the entitlement to the claimant at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

Secretary may make direction as to the manner of making payments

             (3)  The Secretary may direct that the whole or a part of an amount that is to be paid under this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

             (4)  This section is subject to Part 4 and to Division 3 of Part 8B.

56B  Payment of child care benefit by fee reduction where claim by an approved child care service

             (1)  If:

                     (a)  a claimant that is an approved child care service is entitled to be paid child care benefit by fee reduction for sessions of care provided by the claimant to a child at risk during a financial year; and

                     (b)  the service is required, under section 219BA, to pass on to itself child care benefit by fee reduction for those sessions of care; and

                     (c)  the amount of the entitlement is greater than the total amount which the service is obliged to pass on to itself under that section for those sessions of care;

the Secretary must pay the amount of the difference to the claimant at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

             (2)  The Secretary may direct that the whole or a part of an amount which is to be paid under this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

             (3)  This section is subject to Part 4 (Overpayments and debt recovery).

Subdivision KObligations to notify change of circumstances

56C  Individual’s obligation to notify change of circumstances

Individual conditionally eligible and something happens to cause a loss of conditional eligibility

             (1)  If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual; and

                     (b)  either:

                              (i)  anything happens that causes the claimant to cease to be conditionally eligible; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the individual under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

          (1A)  Strict liability applies to the following elements of an offence against subsection (1):

                     (a)  the element that a determination is a determination under section 50F;

                     (b)  the element that a notice is a notice given under section 57.

Individual conditionally eligible and something happens to cause a reduction in the CCB %

             (2)  If:

                     (a)  determinations of conditional eligibility under section 50F and CCB % under section 50J are in force in respect of a claimant who is an individual; and

                     (b)  the CCB % is calculated using Schedule 2 to the Family Assistance Act; and

                     (c)  either:

                              (i)  anything happens that causes a reduction in the CCB %; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

          (2A)  Strict liability applies to the following elements of an offence against subsection (2):

                     (a)  the element that a determination is a determination under section 50F or 50J;

                     (b)  the element that Schedule 2 to the Family Assistance Act is used to calculate a CCB %;

                     (c)  the element that a notice is a notice given under section 57.

Individual conditionally eligible, has a weekly limit of hours for a reason other than child at risk and something happens to cause a reduction in the weekly limit of hours

             (3)  If:

                     (a)  determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and

                     (b)  the weekly limit of hours is more than 24 because a circumstance set out in subsection 54(2), (4), (6) or (8) of the Family Assistance Act or subsection 55(2) or (4) of that Act applies to the eligibility of the claimant; and

                     (c)  either:

                              (i)  anything happens that causes a reduction in the weekly limit of hours; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

          (3A)  Strict liability applies to the following elements of an offence against subsection (3):

                     (a)  the element that a determination is a determination under section 50F or 50H;

                     (b)  the element that a circumstance is a circumstance set out in subsection 54(2), (4), (6) or (8) of the Family Assistance Act or subsection 55(2) or (4) of that Act;

                     (c)  the element that a notice is a notice given under section 57.

Individual conditionally eligible, has a 24 hour care limit and the number of 24 hour care periods is reduced

             (4)  If:

                     (a)  determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and

                     (b)  the weekly limit of hours is a 24 hour care limit with one or more 24 hour care periods; and

                     (c)  either:

                              (i)  anything happens that causes a reduction in the number of 24 hour care periods in the week; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

          (4A)  Strict liability applies to the following elements of an offence against subsection (4):

                     (a)  the element that a determination is a determination under section 50F or 50H;

                     (b)  the element that a notice is a notice given under section 57.

Individual conditionally eligible and something happens to cause a reduction in schooling %

             (5)  If:

                     (a)  determinations of conditional eligibility under section 50F and schooling % under section 50K are in force in respect of a claimant who is an individual; and

                     (b)  the schooling % is 100%; and

                     (c)  either:

                              (i)  anything happens that causes a reduction in the schooling % to 85%; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

          (5A)  Strict liability applies to the following elements of an offence against subsection (5):

                     (a)  the element that a determination is a determination under section 50F or 50K;

                     (b)  the element that a notice is a notice given under section 57.

Individual conditionally eligible, has a rate determined because of hardship and something happens that affects the rate

             (6)  If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual and a child; and

                     (b)  the claimant’s rate of child care benefit for a session of care provided to the child is the rate determined by the Secretary under subsection 81(2) of the Family Assistance Act (hardship); and

                     (c)  either:

                              (i)  anything happens that affects the rate determined; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

          (6A)  Strict liability applies to the following elements of an offence against subsection (6):

                     (a)  the element that a determination is a determination under section 50F;

                     (b)  the element that the determination of a rate is a determination under subsection 81(2) of the Family Assistance Act;

                     (c)  the element that a notice is a notice given under section 57.

Individual eligible for special grandparent rate and something happens to cause a loss of eligibility for that rate

             (7)  If:

                     (a)  a determination is in force under subsection 50T(1) with the effect that a claimant who is an individual is eligible for the special grandparent rate for a child; and

                     (b)  either:

                              (i)  anything happens that causes the claimant to cease to be eligible for that rate for the child; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  Imprisonment for 6 months.

             (8)  Strict liability applies to the following elements of an offence against subsection (7):

                     (a)  the element that a determination is a determination under subsection 50T(1);

                     (b)  the element that a notice is a notice given under section 57.

56D  Approved child care service’s obligation to notify of change of circumstances

Service eligible for child care benefit in respect of a child at risk, a weekly limit of hours is determined and something happens to cause a reduction in weekly limit of hours

             (1)  If:

                     (a)  a claimant that is an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the claimant to a child at risk; and

                     (b)  a determination of a weekly limit of hours under section 54C in respect of the claimant and the child is in force; and

                     (c)  the weekly limit of hours is more than 24 because a circumstance under subsection 54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act applies; and

                     (d)  either:

                              (i)  anything happens that causes a reduction in the weekly limit of hours; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  60 penalty units.

          (1A)  Strict liability applies to the following elements of an offence against subsection (1):

                     (a)  the element that a child care service’s eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;

                     (b)  the element that a determination is a determination under section 54C;

                     (c)  the element that a circumstance is a circumstance under subsection 54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act;

                     (d)  the element that a notice is a notice given under section 57.

Service eligible for child care benefit in respect of a child at risk and something happens that affects the rate

             (2)  If:

                     (a)  a claimant that is an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction for care provided by the claimant to a child at risk; and

                     (b)  a rate, determined by the Secretary in respect of the claimant and the child under subsection 81(4) of the Family Assistance Act, is in force; and

                     (c)  either:

                              (i)  anything happens that would have the effect that the rate should not apply; or

                             (ii)  the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  60 penalty units.

          (2A)  Strict liability applies to the following elements of an offence against subsection (2):

                     (a)  the element that a child care service’s eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;

                     (b)  the element that a determination of a rate is a determination under subsection 81(4) of the Family Assistance Act;

                     (c)  the element that a notice is a notice given under section 57.

Individual conditionally eligible, individual’s rate is determined because child at risk and something happens that affects the rate

             (3)  If:

                     (a)  a claimant who is an individual has made a claim for child care benefit by fee reduction for care provided by an approved child care service to a child; and

                     (b)  a determination of conditional eligibility under section 50F is in force in respect of the claimant and the child; and

                     (c)  the rate applicable to the claimant is as determined by the Secretary under subsection 81(3) of the Family Assistance Act; and

                     (d)  either:

                              (i)  anything happens that would have the effect that the rate should no longer apply; or

                             (ii)  the service becomes aware that anything is likely to happen that will have that effect;

the service must, in the manner set out in a written notice given to the service under section 57, as soon as practicable after the service becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  60 penalty units.

          (3A)  Strict liability applies to the following elements of an offence against subsection (3):

                     (a)  the element that a determination is a determination under section 50F;

                     (b)  the element that a determination of a rate is a determination under subsection 81(3) of the Family Assistance Act;

                     (c)  the element that a notice is a notice given under section 57.

Individual conditionally eligible, individual’s weekly limit of hours is determined because Secretary considers the child is at risk and something happens to cause a reduction of the weekly limit of hours

             (4)  If:

                     (a)  a claimant who is an individual has made a claim for child care benefit by fee reduction for care provided by an approved child care service to a child; and

                     (b)  determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force in respect of the claimant and the child; and

                     (c)  the weekly limit of hours is such because a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act (child at risk) applies to the eligibility of the claimant; and

                     (d)  either:

                              (i)  anything happens that would have the effect that the weekly limit of hours should not be as high; or

                             (ii)  the service becomes aware that anything is likely to happen that will have that effect;

the service must, in the manner set out in a written notice given to the service under section 57, as soon as practicable after the service becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  60 penalty units.

          (4A)  Strict liability applies to the following elements of an offence against subsection (4):

                     (a)  the element that a determination is a determination under section 50F;

                     (b)  the element that a determination is a determination under section 50H;

                     (c)  the element that a circumstance is a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act;

                     (d)  the element that a notice is a notice given under section 57.

Service determined to be sole provider and ceases to be sole provider

             (5)  If:

                     (a)  a determination is in force under section 57 of the Family Assistance Act in respect of an approved child care service that the service is the sole provider in an area; and

                     (b)  either:

                              (i)  anything happens that would have the effect that the service would no longer be the sole provider in that area; or

                             (ii)  the service becomes aware that anything is likely to happen that will have that effect;

the service must, in the manner set out in a written notice given to the service under section 57, as soon as practicable after the service becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:  60 penalty units.

          (5A)  Strict liability applies to the following elements of an offence against subsection (5):

                     (a)  the element that a determination is a determination under section 57 of the Family Assistance Act;

                     (b)  the element that a notice is a notice given under section 57.

Subdivision LSecretary’s powers

57  Secretary’s power to approve a manner of notification for the purposes of sections 56C and 56D

             (1)  The Secretary must approve a manner of notification that a person is to use when notifying the Secretary of a thing under section 56C or 56D (change of circumstances).

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

57A  Secretary’s power to require bank account details

                   If:

                     (a)  a determination under section 50F is in force under which a claimant who is an individual is conditionally eligible for child care benefit by fee reduction; or

                     (b)  the claimant has not nominated a bank account into which the amount of the difference referred to in subsection 56(1) is to be paid;

the Secretary may require the claimant to give the Secretary, within 28 days of the requirement being made, details of a bank account maintained by the claimant alone, or jointly or in common with someone else, into which the amount of the difference is to be paid.

57B  Secretary’s powers to request in claim form tax file number etc. of TFN claim persons

             (1)  The Secretary may request, in a claim form for child care benefit by fee reduction, that a statement of one of the kinds set out in subsections (2), (3) or (4) is made in relation to each TFN claim person.

Statement of tax file number

             (2)  The first kind of statement that can be made is a statement of the TFN claim person’s tax file number. Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.

Statement that TFN claim person does not know what his or her tax file number is etc.

             (3)  The second kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (4)  The third kind of statement that can be made is a statement by the TFN claim person that the person:

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

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

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

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

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

How statement to be given

             (5)  A statement made by the claimant must be in the claim. A statement made by any other TFN claim person must be in a document, in a form approved by the Secretary, that the claimant gives the Secretary together with the claim.

Exemption from tax file number requirement if Secretary determines

             (6)  The Secretary may determine that the request in subsection (1) does not apply to a TFN claim person if:

                     (a)  the person is, or was, the claimant’s partner; and

                     (b)  the claimant cannot obtain from the person:

                              (i)  the person’s tax file number; or

                             (ii)  a statement by the person under subsection (3) or (4).

Exemption from tax file number requirement if claimant opts for certain things in the claim form

             (7)  The request in subsection (1) does not apply to a TFN claim person if, in the claim, the person opted to have a CCB % of zero % applicable to him or her.

57C  Secretary’s power to request tax file numbers etc. of certain TFN claim persons

                   If:

                     (a)  an individual makes a claim for payment of child care benefit by fee reduction for care provided by an approved child care service; and

                     (b)  the claimant does not opt in the claim to have a CCB % of zero % applicable to him or her; and

                     (c)  the claimant does not give the Secretary in the claim the tax file number of a TFN claim person; and

                     (d)  the TFN claim person does not make a statement of a kind set out in subsection 57B(3) or (4); and

                     (e)  the Secretary has not exempted the TFN claim person under subsection 57B(6) from giving the person’s tax file number or making a statement of a kind referred to in subsection 57B(3) or (4);

the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, the tax file number of a TFN claim person.

57D  Secretary’s power to request tax file numbers of TFN determination persons

             (1)  If:

                     (a)  a determination under section 50F is in force under which a claimant who is an individual is conditionally eligible for child care benefit by fee reduction; or

                     (b)  a determination under section 52E is in force under which a claimant who is an individual is entitled to be paid child care benefit for a past period for care provided by an approved child care service;

the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, a statement, in relation to a specified TFN determination person, of whichever of the kinds set out in subsection (2), (3) or (4) the claimant chooses.

Statement of tax file number

             (2)  The first kind of statement that can be made is a statement of the TFN determination person’s tax file number. Regardless of who the TFN determination person is, this kind of statement can be made by the claimant only.

Statement that TFN determination person does not know what his or her tax file number is etc.

             (3)  The second kind of statement that can be made is a statement by the TFN determination person that the person:

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

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

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

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

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

Statement that an application for a tax file number is pending

             (4)  The third kind of statement that can be made is a statement by the TFN determination person that the person:

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

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

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

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

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

57E  Secretary’s power to require immunisation details

                   If a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual and a child with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child, the Secretary may, by written notice given to the claimant, require that the child meets the immunisation requirement set out in section 6 of the Family Assistance Act in respect of the child within 63 days of the notice.

57F  Secretary’s power to require data verification information

             (1)  If a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction, the Secretary may, by written notice given to the claimant, require the claimant to give the Secretary, within the time specified in the notice, the information specified in the data verification form accompanying the notice.

             (2)  To avoid doubt, the Secretary may, before the start of the first week commencing after 1 July 2006, give a notice under subsection (1) requiring the claimant to give the Secretary information about whether or not the claimant will satisfy the work/training/study test on or after the start of the first week commencing after 1 July 2006.

Note:          The Family and Community Services Legislation Amendment (Welfare to Work) Act 2005 amends the work/training/study test and applies from the start of the first week commencing after 1 July 2006.

57G  Secretary’s power to require further information about children enrolled in child care

             (1)  The Secretary may, by notice, require an approved child care service to give the Secretary further information in relation to any aspect of the care provided, or expected to be provided in the future, to all children:

                     (a)  in relation to whom:

                              (i)  the service has given the Secretary notice of enrolment under sections 219A and 219AB, or sections 219AA and 219AB;

                             (ii)  the Secretary has confirmed the enrolment in accordance with section 219AE; and

                     (b)  who remain enrolled for care by the service.

             (2)  The notice must specify either:

                     (a)  the period in relation to which the information must be provided; or

                     (b)  the intervals in which the information must be provided.

             (3)  The notice must be given in the form, and in the manner or way, approved by the Secretary.

             (4)  Without limiting subsection (3), the Secretary may approve notification of the information by making the notice available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which it is made available.

             (5)  The information must be given to the Secretary by the service in the form, and in the manner or way, approved by the Secretary.

Subdivision MVariations of determinations if failure to provide tax file numbers or bank account details or to meet the immunisation requirement

58  Variation where failure to provide tax file number

Non‑compliance with request

             (1)  If:

                     (a)  either:

                              (i)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; or

                             (ii)  a determination of entitlement under section 52E is in force in respect of a claimant who is an individual to be paid child care benefit for a past period for care provided by an approved child care service; and

                     (b)  the Secretary makes a request under subsection 57D(1) (request for tax file number) of the claimant concerned; and

                     (c)  the claimant does not comply with the request within 28 days of the request being made;

then, subject to subsection (2), the consequence in subsection (5) or (6) applies, as the case requires.

Exemption from request under subsection 57D(1)

             (2)  The Secretary may determine that the consequence in subsection (5) or (6) does not apply if:

                     (a)  the TFN determination person concerned is or was the claimant’s partner; and

                     (b)  the claimant cannot obtain from the person:

                              (i)  the person’s tax file number; or

                             (ii)  a statement by the person under subsection 57D(3) or (4).

Statement made by TFN determination person under subsection 57D(3)

             (3)  If:

                     (a)  the Secretary makes a request under subsection 57D(1); and

                     (b)  by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 57D(3); and

                     (c)  the Commissioner of Taxation tells the Secretary that the person has no tax file number;

the consequence in subsection (5) or (6) applies, as the case requires.

Statement made by TFN determination person under subsection 57D(4)

             (4)  If:

                     (a)  the Secretary makes a request under subsection 57D(1); and

                     (b)  by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 57D(4); and

                     (c)  the Commissioner of Taxation tells the Secretary that the person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (5) or (6) applies, as the case requires.

Variation of determination of CCB %

             (5)  For the purposes of subsection (1), (3) or (4), if the situation in subparagraph (1)(a)(i) applies, the Secretary may vary the determination of CCB % applicable to the claimant with the effect that the CCB % is zero %. The variation takes effect from the Monday after the day the variation is made.

Variation of determination of entitlement in respect of past period claim by individual

             (6)  For the purposes of subsection (1), (3) or (4), if the situation in subparagraph (1)(a)(ii) applies, the Secretary may vary the determination of entitlement in respect of the past period to which the claim relates.

             (7)  For the purposes of this Act and the Family Assistance Act, the variation referred to in subsection (6) has the effect:

                     (a)  that the claimant continues to be entitled under section 52E to be paid an amount of child care benefit in respect of the past period to which the claim relates; but

                     (b)  that the amount of the entitlement is a nil amount.

This subsection has effect despite section 52E.

Consequence of Secretary later becoming aware of tax file number

             (8)  If:

                     (a)  under subsection (5) or (6), the Secretary varies the determination; and

                     (b)  the Secretary finds out the tax file number of the TFN determination person concerned:

                              (i)  if subsection (5) applies—before the end of the income year following the one in which the variation took effect; or

                             (ii)  if subsection (6) applies—at any time after the variation took place;

the Secretary must vary the determination to undo the effect mentioned in subsection (5) or (6).

58A  Variation where failure to comply with request for bank account details

Non‑compliance with request

             (1)  If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual; and

                     (b)  the claimant is subject to a request under section 57A (bank account details); and

                     (c)  the claimant does not comply with the request within 28 days of the request being made;

then, subject to subsection (2), the consequence in subsection (3) applies.

Exemption from consequence in subsection (3)

             (2)  The Secretary may determine that the consequence in subsection (3) does not apply if the Secretary considers that it is appropriate to exempt the claimant from the consequence.

Variation of determination

             (3)  For the purposes of subsection (1), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not conditionally eligible from the Monday after the end of 28 days following the day the Secretary made the request under section 57A.

Consequence of Secretary later becoming aware of bank account details

             (4)  If:

                     (a)  under subsection (3), the Secretary varies the determination; and

                     (b)  the Secretary finds out the bank account details of the claimant concerned before the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (3).

58B  Variation where failure to comply with requirement to meet immunisation requirement

                   If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual and a child; and

                     (b)  the Secretary requires the child to meet the immunisation requirement under section 57E; and

                     (c)  the requirement is not met as provided for in that section;

the Secretary must vary the determination with the effect that the claimant is not conditionally eligible from the Monday after the day the variation is made.

Subdivision NVariations of determinations if failure to provide data verification

59  Variation for failure to return the data verification form

             (1)  If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the form is not returned in the time specified in the request;

the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from 1 July in the income year following the one in which the request was made.

             (2)  Without limiting subsection (1), if:

                     (a)  determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the request is a request for information of the kind described in subsection 57F(2); and

                     (d)  the form is not returned in the time specified in the request;

the Secretary may vary the determination of a weekly limit of hours with the effect that, on and from the start of the first week commencing after 1 July 2006, the limit is 24 hours.

Consequence of Secretary later becoming aware of the information

             (3)  If:

                     (a)  under subsection (2), the Secretary varies the determination; and

                     (b)  before the end of the income year following the one in which the variation took effect:

                              (i)  the claimant returns the data verification form specified in the request under section 57F and provides the information mentioned in paragraph (2)(c); or

                             (ii)  the Secretary finds out the information (whether from the claimant or someone else);

the Secretary must vary the determination to undo the effect mentioned in subsection (2).

59A  Variation for failure to provide information in the data verification form relating to the name and address of the approved child care service

                   If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the form is returned within the time specified in the request; and

                     (d)  the name and address of the approved child care service requested in the form is not provided;

the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from 1 July in the income year following the one in which the request was made.

59B  Variation for failure to provide information in the data verification form relating to conditional eligibility

                   If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the form is returned within the time specified in the request; and

                     (d)  any information requested in the form relevant to the claimant’s conditional eligibility is not provided;

the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from 1 July in the income year following the one in which the request was made.

59C  Variation for failure to provide information in the data verification form relating to schooling %

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of schooling % under section 50K are in force in respect of a claimant who is an individual with the effect, in respect of the latter determination, that the schooling % is 100%; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the form is returned within the time specified in the request; and

                     (d)  any information requested in the form relevant to the schooling % is not provided;

the Secretary may vary the determination with the effect that the schooling % is 85% from 1 July in the income year following the one in which the request was made.

Consequence of Secretary later becoming aware of information

             (2)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  before the end of the income year following the one in which the variation took effect the claimant gives the information mentioned in subsection (1) or the Secretary finds out the information;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

59D  Variation for failure to provide information in the data verification form relating to CCB %

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the form is returned within the time specified in the request; and

                     (d)  any information requested in the form relevant to the CCB %:

                              (i)  is not provided; or

                             (ii)  if the information is provided, and it is an estimate of an amount needed by the Secretary to calculate the CCB %, the Secretary considers that the estimate is not reasonable;

the Secretary may vary the determination with the effect that the CCB % is zero % from 1 July in the income year following the one in which the request was made.

Consequence of Secretary later becoming aware of the information

             (2)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  before the end of the income year following the one in which the variation took effect:

                              (i)  if a situation referred to in subparagraph (1)(d)(i) applies—the claimant provides the information mentioned in that subparagraph; or

                             (ii)  if a situation referred to in subparagraph (1)(d)(ii) applies—the claimant provides a reasonable estimate of the amount mentioned in that subparagraph; or

                            (iii)  the Secretary finds out the actual amount needed to calculate the CCB % (whether from the claimant or someone else);

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

59E  Variation where information in the data verification form relating to CCB % affects the CCB %

                   If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the form is returned within the time specified in the request; and

                     (d)  the information requested in the form relevant to the CCB % is provided; and

                     (e)  the information provided affects the CCB %;

the Secretary must vary the determination of CCB % with the effect that the CCB % is recalculated under Schedule 2 to the Family Assistance Act, using the information provided, from 1 July in the income year following the one in which the request was made.

59F  Variation for failure to provide information in the data verification form relating to weekly limit of hours

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and

                     (b)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (c)  the form is returned within the time specified in the request; and

                     (d)  the information requested in the form relevant to the weekly limit is not provided;

the Secretary may vary the determination of a weekly limit of hours with the effect that the limit is 24 hours from 1 July in the income year following the one in which the request was made.

Consequence of Secretary later becoming aware of the information

             (2)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  before the end of the income year following the one in which the variation took effect:

                              (i)  the claimant provides the information mentioned in paragraph (1)(d); or

                             (ii)  the Secretary finds out the information (whether from the claimant or someone else);

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

59G  Variation for failure to provide information in the data verification form relating to special grandparent rate

             (1)  If:

                     (a)  a determination is in force under section 50F with the effect that a claimant who is an individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and

                     (b)  a determination is in force under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and

                     (c)  the Secretary makes a request under section 57F in respect of a data verification form referred to in that section; and

                     (d)  the form is returned within the time specified in the request; and

                     (e)  any information requested in the form relevant to the claimant’s eligibility for the special grandparent rate for the child is not provided;

the Secretary may vary the determination under subsection 50T(1) with the effect that the claimant is, from 1 July in the income year following the one in which the request was made, not eligible for the special grandparent rate for the child.

Consequence of Secretary later becoming aware of information

             (2)  If:

                     (a)  under subsection (1), the Secretary varies the determination under subsection 50T(1); and

                     (b)  before the end of the income year following the one in which the variation took effect, the claimant gives the information mentioned in subsection (1) or the Secretary finds out the information;

the Secretary must vary the determination under subsection 50T(1) to undo the effect mentioned in subsection (1).

Subdivision POther variations of determinations relating to
CCB %

60  Variation where no entitlement for child care benefit for a past period because CCB % is zero %, and claimant gives information so that CCB % can be recalculated

Variations

             (1)  If:

                     (a)  a determination is made under subsection 52G(1) in response to a claim by an individual for child care benefit for a past period for care provided to a child by an approved child care service; and

                     (b)  when making the determination, subsection 55B(2) caused the Secretary not to be satisfied that, if the claimant were to be entitled to be paid child care benefit, the entitlement would be more than a nil amount; and

                     (c)  the claimant complies with:

                              (i)  if subparagraph 55B(2)(c)(i) applies to the claimant—subsection (3); and

                             (ii)  if subparagraph 55B(2)(c)(ii) applies to the claimant—subsection (4);

                            for the purposes of having the Secretary reconsider the claim; and

                     (d)  the Secretary is satisfied that, if the claimant were to be entitled to be paid child care benefit in respect of the period, the amount of the entitlement would be more than a nil amount;

the Secretary must vary the determination.

             (2)  For the purposes of the family assistance law, the variation has the effect that the determination is taken:

                     (a)  to cease to be a determination made under subsection 52G(1); and

                     (b)  to be a determination made under section 52E, at the time of the variation, in relation to the claim.

Section 52J does not apply in relation to paragraph (b).

Condition for variations

             (3)  The claimant complies with this subsection if the claimant gives the Secretary:

                     (a)  the information needed to work out the number of children in care of a particular kind; and

                     (b)  the tax file number of each of the TFN determination persons;

within 2 years after the end of the income year during which the determination was made under subsection 52G(1).

             (4)  The claimant complies with this subsection if the claimant:

                     (a)  informs the Secretary that the claimant no longer opts to have a CCB % of zero % applicable to him or her, and wants his or her claim reconsidered on the basis of the CCB % worked out under Schedule 2 to the Family Assistance Act; and

                     (b)  gives the Secretary the tax file number of each of the TFN determination persons;

within 2 years after the end of the income year during which the determination was made under subsection 52G(1).

60A  Variation where no entitlement for child care benefit by single payment/in substitution because CCB % is zero %, and claimant gives information so that CCB % can be recalculated

Variations

             (1)  If:

                     (a)  a determination is made under subsection 53E(1) in response to a claim by an individual, in respect of a child, for child care benefit by single payment/in substitution because of the death of another individual; and

                     (b)  when making the determination, subsection 55A(2) or 55B(2) caused the Secretary not to be satisfied that, if the claimant were to be entitled to be paid child care benefit, the entitlement would be more than a nil amount; and

                     (c)  the claimant complies with:

                              (i)  if subsection 55A(2) applies to the claimant—subsection (3); and

                             (ii)  if subparagraph 55B(2)(c)(i) applies to the claimant—subsection (4); and

                            (iii)  if subparagraph 55B(2)(c)(ii) applies to the claimant—subsection (5);

                            for the purposes of having the Secretary reconsider the claim; and

                     (d)  the Secretary is satisfied that, if the claimant were to be entitled to be paid child care benefit in respect of the claim, the amount of the entitlement would be more than a nil amount;

the Secretary must vary the determination.

             (2)  For the purposes of the family assistance law, the variation has the effect that the determination is taken:

                     (a)  to cease to be a determination made under subsection 53E(1); and

                     (b)  to be a determination made under section 53D, at the time of the variation, in relation to the claim.

Section 53G does not apply in relation to paragraph (b).

Condition for variations

             (3)  The claimant complies with this subsection if:

                     (a)  the claimant gives the Secretary an estimate of the amount needed to calculate the CCB % used in calculating the amount of the benefit; and

                     (b)  the estimate is so given within 2 years after the end of the income year during which the determination was made under subsection 52G(1); and

                     (c)  the Secretary considers the estimate reasonable.

             (4)  The claimant complies with this subsection if the claimant gives the Secretary:

                     (a)  the information needed to work out the number of children in care of a particular kind; and

                     (b)  the tax file number of each of the TFN determination persons;

within 2 years after the end of the income year during which the determination was made under subsection 53E(1).

             (5)  The claimant complies with this subsection if the claimant:

                     (a)  informs the Secretary that the claimant no longer opts to have a CCB % of zero % applicable to him or her, and wants his or her claim reconsidered on the basis of the CCB % worked out under Schedule 2 to the Family Assistance Act; and

                     (b)  gives the Secretary the tax file number of each of the TFN determination persons;

within 2 years after the end of the income year during which the determination was made under subsection 53E(1).

60B  Variation where CCB % is zero % because of subsection 55(2) or 55B(1), or section 55C, and claimant gives certain information so that CCB % is recalculated

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the CCB % is zero % because any or all of the following provisions apply:

                              (i)  subsection 55(2);

                             (ii)  subparagraph 55B(1)(c)(i) or (ii);

                            (iii)  section 55C; and

                     (c)  later, the claimant:

                              (i)  if subsection 55(2) applies—gives the Secretary an estimate of the amount needed to calculate the CCB %, which the Secretary considers reasonable; and

                             (ii)  if subparagraph 55B(1)(c)(i) applies—gives the Secretary the information needed to work out the number of children the individual has in care of a particular kind; and

                            (iii)  if subparagraph 55B(1)(c)(ii) applies—informs the Secretary that he or she wants the CCB % to be worked out under Schedule 2 to the Family Assistance Act, gives the Secretary the tax file number of each TFN determination person and an estimate of the amount needed to have the CCB % recalculated under that Act, which the Secretary considers reasonable; and

                            (iv)  if section 55C applies—gives the Secretary the tax file number of each TFN determination person;

the Secretary must vary the determination of CCB % with the effect that the CCB % is recalculated under Schedule 2 to the Family Assistance Act.

             (2)  The variation takes effect from the Monday after the day the variation is made.

             (3)  After the Secretary makes the variation under subsection (1), the amount of the claimant’s entitlement determined under section 51B in respect of the income year:

                     (a)  in which the variation took effect; and

                     (b)  preceding the income year in which the variation took effect;

is calculated, or recalculated, as the case may be, using the CCB % worked out under Schedule 2 to the Family Assistance Act.

60C  Variation where CCB % calculated under Schedule 2 to Family Assistance Act and Secretary receives information from Commissioner of Taxation

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J in force in respect of a claimant who is an individual were made after the period referred to in paragraph 50D(1)(e); and

                     (b)  later, the Commissioner of Taxation tells the Secretary one of the following things:

                              (i)  the TFN determination person has not applied for a tax file number;

                             (ii)  an application by the TFN determination person for a tax file number has been refused;

                            (iii)  the TFN determination person has withdrawn an application for a tax file number;

the Secretary must vary the determination of CCB % with the effect that the CCB % is zero %.

             (2)  The variation takes effect from the Monday after the day the variation is made.

Consequence of Secretary later becoming aware of tax file number

             (3)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  the Secretary finds out the tax file number of the TFN determination person before the end of the income year following the one in which the variation took effect, the Secretary must vary the determination to undo the effect mentioned in subsection (1).

60D  Variation where income tax return not lodged

             (1)  If:

                     (a)  a determination of entitlement under section 51B is in force in respect of a claimant who is an individual and a particular income year; and

                     (b)  any of the following people:

                              (i)  the claimant;

                             (ii)  the claimant’s partner at the end of the second income year (the later income year) following the particular income year (if he or she was also the claimant’s partner in the particular income year);

                            (iii)  both the claimant and the claimant’s partner (as described in subparagraph (ii));

                            are required to lodge an income tax return for the particular income year but have not done so by the end of the later income year; and

                     (c)  by the end of the later income year, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income for the particular income year for everyone to whom paragraph (b) applies;

the Secretary may vary the determination.

             (2)  For the purposes of this Act and the Family Assistance Act, the variation has the effect:

                     (a)  that the claimant continues to be entitled under section 51B to be paid an amount of child care benefit for the particular income year; but

                     (b)  that the amount of the entitlement is a nil amount.

This subsection has effect despite subsection 51B(1).

Consequence of later lodgement of income tax return

             (3)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  an assessment has been made under the Income Tax Assessment Act 1936 for the particular income year for everyone:

                              (i)  who was required to lodge an income tax return as mentioned in subsection (1); and

                             (ii)  in respect of whom an assessment had not been made before the determination was varied;

the Secretary must again vary the determination so that it has the effect that the amount of the entitlement for which the Secretary considers the claimant to be eligible is the amount recalculated under Schedule 2 to the Family Assistance Act and, for that particular income year, the claimant is only entitled to the amount as recalculated.

60E  Variation where estimate of an amount given other than in response to a request by the Secretary is not reasonable

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of the claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the claimant gives the Secretary, other than in response to a request by the Secretary under section 57F, an estimate of an amount needed by the Secretary to calculate CCB %; and

                     (c)  the Secretary does not consider the estimate to be reasonable;

the Secretary may vary the determination so that it has the effect that the CCB % is zero %.

             (2)  The variation takes effect from the Monday after the day the variation is made.

Consequence of later provision of reasonable estimate or Secretary finding out the actual amount

             (3)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  either:

                              (i)  a variation under section 65B is made in respect of the claimant, by the end of the income year following the one in which the variation took effect; or

                             (ii)  the Secretary finds out the actual amount needed to calculate the CCB % (whether from the claimant or someone else) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

Subdivision QVariation of determinations relating to conditional eligibility and schooling %

61  Variation where schooling % is 85% under section 55D and information about whether the child is a school child provided

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of schooling % under section 50K are in force in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the schooling % is determined to be 85% under section 55D; and

                     (c)  later, the claimant provides the information, or the Secretary finds out, that the child is not a school child;

the Secretary must vary the determination of schooling % with the effect that the schooling % is 100%.

             (2)  The variation takes effect from the Monday after the day the variation is made.

61A  Variation where failure to notify that the service has ceased to provide care to child

             (1)  If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the individual is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the Secretary has reason to believe that care has ceased to be provided to the child the subject of the claim by the approved child care service last indicated by the claimant to the Secretary;

the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from the Monday after the day the variation is made.

Consequence of Secretary later finding out that child is receiving care from the service

             (2)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  before the end of the income year following the one in which the variation took effect, the Secretary finds out that the child is receiving care from the service;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

Subdivision RVariations of determinations because of failure to meet requirements arising under Division 1 of
Part 6

62  Variation where failure to provide information relevant to conditional eligibility etc.

             (1)  If:

                     (a)  a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the Secretary:

                              (i)  in order to make a decision about the conditional eligibility at any time; or

                             (ii)  in order to make a decision about the claimant’s eligibility for child care benefit by fee reduction under section 43 of the Family Assistance Act at any time; or

                            (iii)  in relation to a matter referred to in subsection 154(5) of this Act;

                            requires the claimant, or the claimant’s partner, under Division 1 of Part 6 of this Act, to give information or produce documents; and

                     (c)  the claimant or the claimant’s partner refuses or fails to comply with the requirements;

the Secretary may vary the determination with the effect that the claimant is not conditionally eligible from the Monday after the day the variation is made.

Consequence of later provision of information or documents

             (2)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

62A  Variation where failure to provide information relevant to CCB %

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual; and

                     (b)  the Secretary, in order to make a decision about the CCB % applicable at any time, requires the claimant, or the claimant’s partner, under Division 1 of Part 6, to give information or produce documents; and

                     (c)  the claimant or the claimant’s partner refuses or fails to comply with the requirements;

the Secretary may vary the determination of the CCB % with the effect that the CCB % is zero %.

             (2)  The variation has effect from the Monday after the day the variation is made.

Consequence of later provision of information or documents

             (3)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

62B  Variation where failure to provide information relevant to schooling %

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of schooling % under section 50K are in force in respect of a claimant who is an individual with the effect, in respect of the latter determination, that the schooling % is 100%; and

                     (b)  the Secretary, in order to make a decision about the schooling % applicable at any time, requires the claimant, or the claimant’s partner, under Division 1 of Part 6, to give information or produce documents; and

                     (c)  the claimant or the claimant’s partner refuses or fails to comply with the requirements;

the Secretary may vary the determination of the schooling % with the effect that the schooling % is 85%.

             (2)  The variation has effect from the Monday after the day the variation is made.

Consequence of later provision of information or documents

             (3)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

62C  Variation where failure to provide information relevant to a weekly limit of hours

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are in force in respect of a claimant who is an individual; and

                     (b)  the Secretary, in order to make a decision about the weekly limit of hours applicable at any time, requires the claimant, or the claimant’s partner, under Division 1 of Part 6, to give information or produce documents; and

                     (c)  the claimant or the claimant’s partner refuses or fails to comply with the requirements;

the Secretary may vary the determination of the weekly limit of hours with the effect that the limit is reduced to a limit specified by the Secretary.

             (2)  The variation has effect from the Monday after the day the variation is made.

Consequence of later provision of information or documents

             (3)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

62CA  Variation where failure to provide information relevant to eligibility for special grandparent rate

             (1)  If:

                     (a)  a determination is in force under subsection 50T(1) with the effect that a claimant who is an individual is eligible for the special grandparent rate for a child; and

                     (b)  the Secretary, in order to make a decision about whether the claimant is eligible for that rate for the child at any time, requires the claimant, or the claimant’s partner, under Division 1 of Part 6, to give information or produce documents; and

                     (c)  the claimant or the claimant’s partner refuses or fails to comply with the requirements;

the Secretary may vary the determination with the effect that the individual is not eligible for that rate for the child.

             (2)  The variation has effect from the Monday after the day the variation is made.

Consequence of later provision of information or documents

             (3)  If:

                     (a)  under subsection (1), the Secretary varies the determination; and

                     (b)  the claimant, or the claimant’s partner, gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (1).

Subdivision SFurther variations after certain variations that can be undone

62D  Secretary finds out information after undoing period is over

                   If:

                     (a)  the Secretary makes a variation (the first variation) of a determination under sections 58, 59C, 59D, 59F, 59G, 60C, 60E, 62A, 62B, 62C and 62CA or under subsection 59(2); and

                     (b)  the period specified under the particular section passes during which the Secretary is required to vary again the determination to undo the effect of the first variation; and

                     (c)  after the period the Secretary is provided with the information, or finds out the information, the lack of which caused the Secretary to make the first variation;

the Secretary must again vary the determination using the information provided or found out with effect from the Monday after this variation.

Subdivision TNotice requirement for variations under Subdivision M, N, P, Q, R or S

63  Notice of variation of determinations under Subdivision M, N, P, Q, R or S

             (1)  The Secretary must give notice of a variation of a determination under Subdivision M, N, P, Q, R or S to the claimant stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.

             (3)  The variation is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

             (4)  The Secretary may make notice of a variation of:

                     (a)  a determination of conditional eligibility; or

                     (b)  a determination of CCB%; or

                     (c)  a determination of a weekly limit of hours; or

                     (d)  a determination of schooling %; or

                     (e)  a determination under subsection 50T(1);

available to the approved child care service providing care to the child, including by making the notice available to the service using an electronic interface.

Subdivision UVariations of determinations of weekly limit of hours because of a circumstance in section 54, 55 or 56 of the Family Assistance Act

64  Determination of weekly limit of hours may be varied

             (1)  After a determination of a weekly limit of hours has:

                     (a)  been made under section 50H in respect of an individual (a claimant); or

                     (b)  been taken to have been made under section 54C in respect of an approved child care service (a claimant);

it may be varied as provided for in this Subdivision.

             (2)  Whether a variation of a determination occurs depends on whether a circumstance listed in section 54, 55 or 56 of the Family Assistance Act applies in a week in respect of a claimant.

64A  Varying determination so that a limit of 50 hours in a week applies

Determination to which this section applies

             (1)  This section applies to a determination of a weekly limit of hours:

                     (a)  in force under section 50H in respect of a claimant who is an individual and a child; or

                     (b)  in force under section 54C, in respect of a claimant that is an approved child care service and a child.

Variation by Secretary on application

             (2)  A determination to which this section applies may be varied by the Secretary on application so that a limit of 50 hours in a week applies if:

                     (a)  a circumstance listed in subsection 54(2), (3), (4), (5), (6), (7), (8), (9), (12), (13) or (14) of the Family Assistance Act applies in the week; and

                     (b)  a limit of more than 50 hours does not apply in the week; and

                     (c)  a 24 hour care limit does not apply in the week.

Who may apply

             (3)  An application under subsection (2) must be made by:

                     (a)  the claimant, if a circumstance listed in subsection 54(2), (3), (4), (5), (6), (7), (8), (9), (13) or (14) of the Family Assistance Act applies in the week; or

                     (b)  the approved child care service providing care to the child, if a circumstance listed in subsection 54(12) of that Act applies in the week.

Variation is taken to have been made if an approved child care service gives certificate

             (4)  A determination to which this section applies is taken to have been varied so that a limit of 50 hours in a week applies if the approved child care service providing the care to the child gives a certificate under subsection 54(10) of the Family Assistance Act in respect of the week.

Variations under subsection 59(2), section 59F and section 62C prevail

             (5)  If:

                     (a)  when a variation under subsection (2) takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and

                     (b)  the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;

the variation under subsection 59(2) or under section 59F or 62C prevails over the variation under this section unless the variation under this section takes place because a circumstance listed in subsection 54(12) of the Family Assistance Act applies in a week.

64B  Varying determination so that a limit of more than 50 hours in a week applies

Determination to which this section applies

             (1)  This section applies to a determination of a weekly limit of hours:

                     (a)  in force under section 50H in respect of a claimant who is an individual and a child; or

                     (b)  in force under section 54C in respect of a claimant that is an approved child care service and a child.

Variation by Secretary on application

             (2)  A determination to which this section applies may be varied by the Secretary on application so that a limit of more than 50 hours in a week applies if:

                     (a)  a circumstance listed in subsection 55(2), (3), (4), (5) or (8) of the Family Assistance Act applies in the week; and

                     (b)  a 24 hour care limit does not apply in the week.

Amount of limit

             (3)  If the Secretary varies the determination because a circumstance listed in the section referred to in paragraph (2)(a) applies, the amount of the limit of hours more than 50 is the particular number of hours worked out using the relevant subsection.

Who may apply

             (4)  An application under subsection (2) must be made by:

                     (a)  the claimant, if a circumstance listed in subsection 55(2), (3), (4) or (5) of the Family Assistance Act applies in the week; or

                     (b)  the approved child care service providing the care to the child, if a circumstance listed in subsection 55(8) of the Family Assistance Act applies in the week.

Variation if an approved child care service gives certificate

             (5)  A determination to which this section applies is taken to have been varied so that a limit of more than 50 hours in a week applies if the approved child care service providing the care to the child gives a certificate under subsection 55(6) of the Family Assistance Act in respect of the week. The amount of the limit of hours more than 50 is the particular number of hours worked out by the service using that subsection.

Variations under subsection 59(2), section 59F and section 62C prevail

             (6)  If:

                     (a)  when a variation under subsection (2) takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and

                     (b)  the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;

the variation under subsection 59(2) or under section 59F or 62C prevails over the variation under this section unless the variation under this section takes place because a circumstance listed in subsection 55(8) of the Family Assistance Act applies in a week.

64C  Varying determination so that a 24 hour care limit in a week applies

Determination to which this section applies

             (1)  This section applies to a determination of a weekly limit of hours:

                     (a)  in force under section 50H in respect of a claimant who is an individual and a child; or

                     (b)  in force under section 54C in respect of a claimant that is an approved child care service and a child.

Variations by Secretary on application

             (2)  A determination to which this section applies may be varied by the Secretary on application so that a 24 hour care limit in a week applies if the circumstances listed in subsection 56(6) or (8) of the Family Assistance Act apply in the week.

Who may apply

             (3)  An application under subsection (2) must be made by the claimant.

Variation if an approved child care service gives certificate

             (4)  A determination to which this section applies is taken to have been varied so that a 24 hour care limit in a week applies if the approved child care service providing the care to the child gives a certificate under subsection 56(3) or (4) of the Family Assistance Act in respect of the week.

Variations under subsection 59(2), section 59F and section 62C prevail

             (5)  If:

                     (a)  when a variation under this section takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and

                     (b)  the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;

the variation under subsection 59(2) or under section 59F or 62C prevails over the variation under this section.

64D  Varying determination so that a limit of 24 hours in a week applies

Determination to which this section applies

             (1)  This section applies to a determination of a weekly limit of hours:

                     (a)  in force under section 50H in respect of a claimant who is an individual and a child; or

                     (b)  in force under section 54C, in respect of a claimant that is an approved child care service and a child.

Variation by Secretary to 24 hour limit

             (2)  A determination to which this section applies may be varied by the Secretary so that a limit of 24 hours applies in a week if a limit of 50 hours, more than 50 hours or a 24 hour care limit does not apply in the week.

64DA  When variations must not be made

                   The Secretary must not vary a determination of a weekly limit of hours under this Subdivision if:

                     (a)  the application for variation was not made until after the end of the income year following the one in which the relevant circumstance listed in section 54, 55 or 56 of the Family Assistance Act first applies; and

                     (b)  but for this section:

                              (i)  the effect of making the variation would be to increase the weekly limit of hours under the determination; and

                             (ii)  making the variation would have that effect for a period that ended before the start of the income year that precedes the one in which the application was made.

64E  Notice of variation of determination under this Subdivision

             (1)  If a determination of a weekly limit of hours is varied by the Secretary under this Subdivision, the notice of variation must:

                     (a)  be given to the claimant, unless the claimant is an individual and the variation is made because a circumstance listed in subsection 54(12) or 55(8) of the Family Assistance Act applies in the week; and

                     (c)  state the effect of the variation, including in particular:

                              (i)  the day from which the variation has effect (see section 64EA); and

                             (ii)  if the variation is to have effect for a period of one or more weeks—the period of one or more weeks that the variation is to have the effect; and

                            (iii)  if the variation is to have the effect that the weekly limit of hours is to be more than 50 hours—the particular number of hours more than 50; and

                            (iv)  if the variation is to have the effect that the weekly limit of hours is a 24 hour care limit—the number of 24 hour care periods in each week during which the variation has the effect; and

                     (d)  state that the claimant may apply for review of the decision involved in the manner set out in Part 5.

             (2)  The variation is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

             (3)  If the claimant is an individual, the Secretary may make a notice of variation of a determination of weekly limit of hours available to the approved child care service providing care to the child, including by making the notice available to the service using an electronic interface.

64EA  When variations take effect

             (1)  If a determination of a weekly limit of hours is varied by the Secretary under this Subdivision, the variation has effect from the start of the week in which the circumstance:

                     (a)  listed in section 54, 55 or 56 of the Family Assistance Act; and

                     (b)  in relation to which the variation is made;

first applies.

             (2)  However, if:

                     (a)  the variation was made on application; and

                     (b)  the application was not made until after the end of the income year following the one in which the circumstance first applies; and

                     (c)  the effect of the variation is to increase the weekly limit of hours under the determination;

then the variation has effect only from the start of the income year that precedes the one in which the application was made.

64F  Form of application

                   An application under this Subdivision must:

                     (a)  be made in the form and manner; and

                     (b)  contain any information; and

                     (c)  be accompanied by any documents;

required by the Secretary.

Subdivision VVariations of determinations for changes in circumstances

65  Variation of determination of conditional eligibility to reflect changes in conditional eligibility

             (1)  If:

                     (a)  a determination of conditional eligibility under section 50F is made in respect of a claimant who is an individual with the effect that the claimant is conditionally eligible; and

                     (b)  after the determination is made, an event occurs; and

                     (c)  the determination has the effect as set out in paragraph (a) at some time after the occurrence; and

                     (d)  when the Secretary becomes aware of the occurrence of the event, the Secretary considers that, if he or she were making the determination immediately after the occurrence, he or she would not have made the determination but instead would have made a determination of no entitlement in respect of the claimant;

the Secretary must vary the determination of conditional eligibility so that the claimant is not conditionally eligible with effect from the date of the occurrence.

             (2)  For the purpose of subsection (1), the occurrence includes the expiration of a period of time if the expiration is relevant to the operation of this Act.

65A  Variation of determination of CCB % to reflect changes in CCB %

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are made in respect of a claimant who is an individual; and

                     (b)  after the determinations are made, an event occurs; and

                     (c)  the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and

                     (d)  when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination of CCB % immediately after the occurrence, the CCB % would be different to the CCB % previously determined;

the Secretary must, subject to subsection (4), vary the determination of CCB % with effect from the date of the occurrence.

             (2)  For the purpose of subsection (1), the occurrence of an event includes the expiration of a period of time if the expiration is relevant to the operation of this Act.

             (3)  The reference in subsection (1) to the occurrence does not include the occurrence of any event that causes the claimant to provide a revised estimate of the claimant’s adjusted taxable income to the Secretary unless:

                     (a)  the event also affects the claimant’s CCB % for a reason other than the amount of the claimant’s adjusted taxable income; or

                     (b)  the event is the claimant’s becoming, or ceasing to be, a member of a couple.

Beneficial variations only to have limited effect

             (4)  If:

                     (a)  the Secretary does not become aware of the occurrence until after the end of the income year (the second income year) following the one in which the event occurred; and

                     (b)  the claimant did not notify the Secretary of the event before the end of the second income year; and

                     (c)  apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant’s CCB % under the determination;

the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.

Section 58, 59D, 60C, 60D, 60E and 62A variations prevail

             (5)  If:

                     (a)  when a variation under this section takes place, a variation is in force under section 58, 59D, 60C, 60D, 60E or 62A; and

                     (b)  the variation under section 58, 59D, 60C, 60D, 60E or 62A has effect for any period when the variation under this section would have effect;

the variation under section 58, 59D, 60C, 60D, 60E or 62A prevails over the variation under this section.

65B  Variation of determination of CCB % to reflect revised adjusted taxable income estimates

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are made in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the CCB %:

                              (i)  is worked out on the basis of an estimate of the claimant’s adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant; or

                             (ii)  is varied under section 60E; and

                     (c)  the claimant provides the Secretary with a revised estimate of the claimant’s adjusted taxable income for the current income year or the next income year that is not attributable to an event mentioned in paragraph 65A(3)(a) or (b); and

                     (d)  the Secretary considers the revised estimate to be reasonable; and

                     (e)  if the claimant’s CCB % were calculated using the revised estimate—a new CCB % would be required;

the Secretary must vary the determination of CCB % so that it is determined on the basis of that revised estimate.

Note:          Section 55AC affects the meaning of subparagraph (1)(b)(i) for members of couples.

             (2)  A variation of a determination under subsection (1) has effect:

                     (a)  if it results in an increase in the claimant’s CCB %:

                              (i)  unless subparagraph (ii) applies—from the Monday after the day the variation is made; or

                             (ii)  if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i)—from that first day; and

                     (b)  if it results in a decrease in the claimant’s CCB %:

                              (i)  unless subparagraph (ii) applies—from the Monday after the day the variation is made; or

                             (ii)  if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i)—from that first day.

Section 58, 59D, 60C, 60D, 60E and 62A variations prevail

             (3)  If:

                     (a)  when a variation under this section takes place, a variation is in force under section 58, 59D, 60C, 60D, 60E or 62A; and

                     (b)  the variation under section 58, 59D, 60C, 60D, 60E or 62A has effect for any period when the variation under this section would have effect;

the variation under section 58, 59D, 60C, 60D, 60E or 62A prevails over the variation under this section.

65BA  Variation of determination of CCB % to reflect indexation of estimate of adjusted taxable income

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the Secretary gives the claimant a notice under subsection 55AA(2); and

                     (c)  the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

                     (d)  if the claimant’s CCB % were calculated using the indexed estimate stated in the notice—a new CCB % would be required;

the Secretary must vary the determination of CCB % so that it is determined on the basis of the indexed estimate stated in the notice.

Note:          Section 55AC affects the meaning of this provision for members of couples.

             (2)  The variation has effect:

                     (a)  from the start day specified in the notice; or

                     (b)  if the variation is made after that start day—from the Monday after the variation is made.

65BB  Variation of determination of CCB % to reflect indexation of adjusted taxable income

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of CCB % under section 50J are in force in respect of a claimant who is an individual and the effect of the former determination is that the individual is conditionally eligible for child care benefit by fee reduction; and

                     (b)  the Secretary gives the claimant a notice under subsection 55AB(2); and

                     (c)  the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

                     (d)  if the claimant’s CCB % were calculated using the indexed actual income stated in the notice—a new CCB % would be required;

the Secretary must vary the determination of CCB % so that it is determined on the basis of the indexed actual income stated in the notice.

Note:          Section 55AC affects the meaning of this provision for members of couples.

             (2)  The variation has effect:

                     (a)  from the start day specified in the notice; or

                     (b)  if the variation is made after that start day—from the Monday after the variation is made.

65C  Variation of determination of schooling % to reflect changes in schooling %

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of schooling % under section 50K are made in respect of a claimant who is an individual; and

                     (b)  after the determinations are made, an event occurs; and

                     (c)  the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and

                     (d)  when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination of schooling % immediately after the occurrence, the schooling % would be different to the schooling % previously determined;

the Secretary must, subject to subsection (2), vary the determination of schooling % with effect from the date of the occurrence.

Beneficial variations only to have limited effect

             (2)  If:

                     (a)  the Secretary does not become aware of the event until after the end of the income year (the second income year) following the one in which the event occurred; and

                     (b)  the claimant did not notify the Secretary of the event before the end of the second income year; and

                     (c)  apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant’s schooling % under the determination;

the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.

Section 59C and 62B variations prevail

             (3)  If:

                     (a)  when a variation under this section takes place, a variation is in force under section 59C or 62B; and

                     (b)  the variation under section 59C or 62B has effect for any period when the variation under this section would have effect;

the variation under section 59C or 62B prevails over the variation under this section.

65D  Variation of determination of a weekly limit of hours to reflect changes in weekly limit of hours

             (1)  If:

                     (a)  determinations of conditional eligibility under section 50F and of a weekly limit of hours under section 50H are made in respect of a claimant who is an individual; and

                     (b)  after the determination is made, an event occurs; and

                     (c)  the determination of conditional eligibility has, at some time after the event, the effect that the claimant is conditionally eligible; and

                     (d)  when the Secretary becomes aware of the change, the Secretary considers that, if he or she were making the determination of a weekly limit of hours immediately after the event, the weekly limit of hours would be different to the weekly limit of hours previously determined;

the Secretary must, subject to subsection (3), vary the determination of a weekly limit of hours so as to determine the weekly limit of hours with the effect from the day of the occurrence.

             (2)  For the purpose of subsection (1), the occurrence includes the expiration of a period of time if the expiration is relevant to the operation of this Act.

Beneficial variations only to have limited effect

             (3)  If:

                     (a)  the Secretary does not become aware of the occurrence in the claimant’s circumstances until after the end of the income year (the second income year) following the one in which the event occurred; and

                     (b)  the claimant did not notify the Secretary of the event before the end of the second income year; and

                     (c)  apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant’s weekly limit of hours under the determination;

the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.

Variations under subsection 59(2), section 59F and section 62C prevail

             (4)  If:

                     (a)  when a variation under this section takes place, a variation is in force under subsection 59(2) or under section 59F or 62C; and

                     (b)  the variation under subsection 59(2) or under section 59F or 62C has effect for any period when the variation under this section would have effect;

the variation under subsection 59(2) or under section 59F or 62C prevails over the variation under this section.

65DA  Variation of determination of eligibility for special grandparent rate

Variation with effect that individual is not eligible for special grandparent rate

             (1)  If:

                     (a)  a determination of conditional eligibility under section 50F is made in respect of a claimant who is an individual and in respect of a child; and

                     (b)  a determination is in force under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and

                     (c)  after the determinations are made, an event occurs; and

                     (d)  the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and

                     (e)  when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination under subsection 50T(1) immediately after the occurrence, the claimant would not be eligible for the special grandparent rate for the child;

the Secretary must vary the determination under subsection 50T(1) with effect that the claimant is not eligible for that rate for the child.

             (2)  The variation under subsection (1) has effect from the date of the occurrence.

Variation with effect that individual is again eligible for special grandparent rate

             (3)  If:

                     (a)  a determination of conditional eligibility under section 50F is made in respect of a claimant who is an individual and in respect of a child; and

                     (b)  a determination is made under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and

                     (c)  the determination referred to in paragraph (b) is varied with the effect that the claimant is not eligible for the special grandparent rate for the child; and

                     (d)  an event occurs while the variation referred to in paragraph (c) is in force; and

                     (e)  the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and

                      (f)  when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination under subsection 50T(1) immediately after the occurrence, the claimant would be eligible for the special grandparent rate for the child;

the Secretary must vary the determination under subsection 50T(1) with effect that the claimant is eligible for that rate for the child.

             (4)  The variation under subsection (3) has effect from:

                     (a)  if no day is specified in the notice of determination—the day the variation is made; or

                     (b)  on the day specified in the notice of variation.

             (5)  The Secretary may specify a day, not more than 4 weeks before:

                     (a)  if the Secretary becomes aware of the occurrence because the claimant notifies the Secretary of the occurrence—the day on which the claimant notifies the Secretary of the occurrence; or

                     (b)  in any other case—the day on which the Secretary makes the variation;

as the day from which the variation is to have effect.

             (6)  The Secretary may only specify a day under subsection (5) if the Secretary is satisfied that, the individual was eligible for the special grandparent rate for the child on and since that specified earlier day.

Section 59G and 62CA variations prevail

             (7)  If:

                     (a)  when a variation under this section takes place, a variation is in force under section 59G or 62CA; and

                     (b)  the variation under section 59G or 62CA has effect for any period when the variation under this section would have effect;

the variation under section 59G or 62CA prevails over the variation under this section.

65E  Notice of variation under this Subdivision

             (1)  The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.

             (2)  The variation is not ineffective by reason only that any or all the requirements of subsection (1) are not complied with.

             (3)  The Secretary may make notice of any variation of a determination under this Subdivision available to the approved child care service providing care to the child of the claimant, including by making the notice available to the service using an electronic interface.


 

Division 4AAChild care rebate

Subdivision AAQuarterly payments of child care rebate

65EAA  Quarterly payments of child care rebate

When Secretary calculates and pays quarterly payments

             (1)  If:

                     (a)  the Secretary is satisfied that an individual is eligible under subsection 57EA(1) of the Family Assistance Act for child care rebate for a quarter in respect of a child; and

                     (b)  the quarter has passed;

the Secretary must calculate the amount of the rebate which the Secretary considers is applicable in respect of the individual and the child for the quarter.

Note:          The calculation is made in accordance with section 84AA of the Family Assistance Act.

          (1A)  However, the Secretary may decide not to calculate an amount of rebate for the quarter if the quarter is the last quarter of the income year.

Note:          The Secretary may prefer to pay rebate for the last quarter as part of the individual’s entitlement to rebate for the entire income year (see Subdivision A).

             (2)  The Secretary must pay the amount of child care rebate calculated under subsection (1) to the individual at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the individual.

Secretary may make direction as to the manner of making payments

             (3)  The Secretary may direct that the whole or a part of an amount that is to be paid under this section is to be paid in a different way from that provided for by subsection (2). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

             (4)  This section is subject to Part 4 and to Division 3 of Part 8B.

65EAB  Revising a calculation of quarterly child care rebate

             (1)  The Secretary may recalculate an amount of child care rebate which the Secretary considers applicable:

                     (a)  under subsection 65EAA(1); or

                     (b)  under a previous application of this subsection;

in respect of an individual and a child for a quarter, so long as a determination of entitlement has not been made under Subdivision A in respect of the individual and child for the income year that includes the quarter.

             (2)  If:

                     (a)  an amount of child care rebate applicable under this Subdivision in respect of an individual and a child for a quarter has been paid to the individual; and

                     (b)  a recalculation under subsection (1) increases the amount of child care rebate applicable in respect of the individual and the child for the quarter;

then subsections 65EAA(2) to (4) apply to the increase as if the increase were the amount applicable under subsection 65EAA(1).

             (3)  If:

                     (a)  an amount of child care rebate applicable under this Subdivision in respect of an individual and a child for a quarter has been paid to the individual; and

                     (b)  a recalculation under subsection (1) decreases the amount of child care rebate applicable in respect of the individual and the child for the quarter;

the Secretary may set off all or a part of the decrease against an amount of child care rebate applicable under this Subdivision in respect of the individual and the child for a later quarter in the same income year.

65EAC  Notices relating to quarterly payments of child care rebate

             (1)  The Secretary must give notice of an amount of child care rebate (the rebate amount) applicable under this Subdivision to the individual, stating:

                     (a)  the child’s name and the quarter in respect of which the rebate amount is applicable; and

                     (b)  the rebate amount; and

                     (c)  the total amount of the individual’s approved child care fees for the child worked out under step 1 of the method statement in section 84AA of the Family Assistance Act when calculating the rebate amount; and

                     (d)  the total amount (if any) of fee reductions worked out under step 2 of the method statement in section 84AA of the Family Assistance Act when calculating the rebate amount; and

                     (e)  if the rebate amount is the result of a recalculation covered by subsection 65EAB(2)—the amount of the increase in rebate as a result of the recalculation; and

                      (f)  if the rebate amount is the result of a recalculation covered by subsection 65EAB(3)—the amount of the decrease in rebate as a result of the recalculation, and whether an amount will be set off as described in that subsection.

             (2)  The calculation and payment of an amount of child care rebate applicable under this Subdivision is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

Subdivision ADetermination of entitlement to child care rebate

65EA  Determining entitlement, or no entitlement, to child care rebate—eligibility for child care benefit by fee reduction

             (1)  This section applies in respect of an individual and a child for a period in an income year if:

                     (a)  the Secretary has determined under section 51B that the individual is entitled to be paid child care benefit by fee reduction for one or more sessions of care provided by an approved child care service to the child during the period; or

                     (b)  the Secretary has determined under subsection 51C(1) or (2) that the individual is not entitled to be paid child care benefit by fee reduction for one or more sessions of care provided by an approved child care service to the child during the period.

Determining entitlement to child care rebate

             (2)  If the Secretary is satisfied:

                     (a)  that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:

                              (i)  the child for the income year; and

                             (ii)  the care provided during the period; and

                     (b)  that, if the individual were to be entitled under this subsection to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount; and

                     (c)  that a determination under this subsection, or subsection 65EB(2), has not already been made in respect of the individual and the child for the income year;

the Secretary must determine that the individual is entitled to be paid child care rebate in respect of the child for the income year. The determination must include the amount of rebate to which the Secretary considers the individual to be entitled.

Note:          A determination may be made under section 65EC if a determination under this subsection, or subsection 65EB(2), has already been made in respect of the individual and the child for a period in the income year.

Determining no entitlement to child care rebate

             (3)  If:

                     (a)  the Secretary is not satisfied that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:

                              (i)  the child for the income year; and

                             (ii)  the care provided during the period; or

                     (b)  the Secretary is satisfied that the individual is so eligible, but is not satisfied that, if the individual were to be entitled to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;

the Secretary must determine that the individual is not entitled to be paid child care rebate in respect of the child for the care provided during the period.

65EB  Determining entitlement, or no entitlement, to child care rebate—eligibility for child care benefit for past period

             (1)  This section applies in respect of an individual, a child and care provided to the child during a period in an income year if:

                     (a)  the Secretary has determined under section 52E that the individual is entitled to be paid child care benefit for the period in respect of the child; or

                     (b)  the Secretary has determined under subsection 52G(1) or (2) that the individual is not entitled to be paid child care benefit for the period in respect of the child.

Determining entitlement to child care rebate

             (2)  If the Secretary is satisfied:

                     (a)  that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:

                              (i)  the child for the income year; and

                             (ii)  the care provided during the period; and

                     (b)  that, if the individual were to be entitled under this subsection to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount; and

                     (c)  that a determination under this subsection, or subsection 65EA(2), has not already been made in respect of the individual and the child for the income year;

the Secretary must determine that the individual is entitled to be paid child care rebate in respect of the child for the income year. The determination must include the amount of rebate to which the Secretary considers the individual to be entitled.

Note:          A determination may be made under section 65EC if a determination under this subsection, or subsection 65EA(2), has already been made in respect of the individual and the child for a period in the income year.

Determining no entitlement to child care rebate

             (3)  If:

                     (a)  the Secretary is not satisfied that the individual is eligible under subsection 57F(1) of the Family Assistance Act for child care rebate in respect of:

                              (i)  the child for the income year; and

                             (ii)  the care provided during the period; or

                     (b)  the Secretary is satisfied that the individual is so eligible, but is not satisfied that, if the individual were to be entitled to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;

the Secretary must determine that the individual is not entitled to be paid child care rebate in respect of the child for the care provided during the period.

65EC  Later determinations of entitlement to child care rebate

             (1)  If:

                     (a)  a determination is made under subsection 65EA(2) or 65EB(2), or this subsection because of a previous application of this subsection, in respect of an individual and a child for an income year (the earlier rebate determination); and

                     (b)  a determination is later made under section 51B or 52E or subsection 51C(1) or 52G(1) in respect of the individual and the child and one or more sessions of care provided by an approved child care service during a period in the income year (the later CCB determination); and

                     (c)  the later CCB determination is not the result of a review of an earlier determination under the relevant section; and

                     (d)  as a result of the later CCB determination, the Secretary considers the individual is entitled to be paid an increased amount of child care rebate;

the Secretary must determine that the individual is entitled to be paid the increased amount of child care rebate in respect of the child for the year (the later rebate determination).

             (2)  The earlier rebate determination ceases to be in force when the later rebate determination is made.

65ECA  Determining entitlement, or no entitlement, to child care rebate—eligibility for child care benefit in substitution

             (1)  This section applies in respect of an individual and a child for a period if:

                     (a)  the Secretary has determined under section 53D that the individual is entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child and the period; or

                     (b)  the Secretary has determined under subsection 53E(1) or (2) that the individual is not entitled to be paid child care benefit by single payment/in substitution because of the death of another individual in respect of the child and the period.

Determining entitlement to child care rebate

             (2)  If the Secretary is satisfied:

                     (a)  that the individual is eligible under subsection 57F(1A) of the Family Assistance Act for child care rebate in respect of the child and the period; and

                     (b)  that, if the individual were to be entitled under this subsection to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;

the Secretary must determine that the individual is entitled to be paid child care rebate because of the death of another individual in respect of the child and the period. The determination must include the amount of rebate to which the Secretary considers the individual to be entitled.

             (3)  Subsections 65EA(3) and 65EB(3) do not limit subsection (2).

Determining no entitlement to child care rebate

             (4)  If:

                     (a)  the Secretary is not satisfied that the individual is eligible under subsection 57F(1A) of the Family Assistance Act for child care rebate in respect of the child and the period; or

                     (b)  the Secretary is satisfied that the individual is so eligible, but is not satisfied that, if the individual were to be entitled to child care rebate in respect of that eligibility, the amount of rebate would be more than a nil amount;

the Secretary must determine that the individual is not entitled to be paid child care rebate because of the death of the other individual in respect of the child and the period.

65ED  When determination is in force

                   Subject to subsection 65EC(2), a determination under this Subdivision comes into force when it is made and remains in force at all times afterwards.

65EE  Notice of determination

             (1)  The Secretary must give notice of a determination under this Subdivision to the individual, stating:

                     (a)  for a determination under a provision other than section 65ECA:

                              (i)  the income year in respect of which the determination is made; and

                             (ii)  whether, under the determination, the individual is entitled to be paid child care rebate in respect of the income year; and

                     (b)  for a determination under section 65ECA:

                              (i)  the period in respect of which the determination is made; and

                             (ii)  whether, under the determination, the individual is entitled to be paid child care rebate in respect of the period; and

                     (c)  if the individual is so entitled, the amount of the entitlement; and

                     (d)  that the individual may apply for review of the determination in the manner set out in Part 5.

             (2)  The determination is not ineffective by reason only that any, or all, of the requirements of subsection (1) are not complied with.

Subdivision BPayment

65EF  Payment of child care rebate

Rebate because of eligibility for child care benefit by fee reduction or for past period

             (1)  If a determination is made under section 65EA, 65EB or 65EC that an individual is entitled to be paid child care rebate in respect of a child for an income year, the Secretary must pay the amount to which the individual is determined to be entitled, at such time as the Secretary considers appropriate, to the credit of a bank account nominated and maintained by the individual.

             (2)  Subsection (1) has effect subject to subsections (2A), (2B) and (2C).

          (2A)  If the determination of entitlement is made under section 65EA, the Secretary must reduce the amount to be paid under subsection (1) by the amount of any child care rebate already paid under Subdivision AA in respect of the individual and the child for a quarter included in the income year.

          (2B)  If:

                     (a)  the determination of entitlement is made under section 65EC; and

                     (b)  when working out the amount of the entitlement under section 84A of the Family Assistance Act, the base weeks included one or more base weeks for which a determination under section 51B, or subsection 51C(1), was applicable;

the Secretary must reduce the amount to be paid under subsection (1) by the amount of any child care rebate already paid:

                     (c)  under Subdivision AA in respect of the individual and the child for a quarter included in the income year; and

                     (d)  under subsection (1) in respect of the individual and the child for the income year.

          (2C)  If the determination of entitlement is made under section 65EC in a case not covered by subsection (2B), the Secretary must reduce the amount to be paid under subsection (1) by the amount of any child care rebate already paid under subsection (1) in respect of the individual and the child for the income year.

Rebate because of eligibility for child care benefit in substitution

          (2D)  If a determination is made under section 65ECA that an individual is entitled to be paid child care rebate:

                     (a)  because of the death of another individual; and

                     (b)  in respect of a child and a period;

the Secretary must pay the amount to which the individual is determined to be entitled, at such time as the Secretary considers appropriate, to the credit of a bank account nominated and maintained by the individual.

           (2E)  However, the Secretary must reduce the amount to be paid under subsection (2D) by the amount of any child care rebate already paid under Subdivision AA in respect of the deceased individual and the child for a quarter wholly or partly included in the period.

Secretary may direct payment in a different way

             (3)  The Secretary may direct that the whole or a part of an amount which is to be paid under this section is to be paid in a different way from that provided for by subsection (1) or (2D). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

Payment is subject to other provisions

             (4)  This section is subject to Part 4 and to Division 3 of Part 8B.


 

Division 4AOne‑off payment to families

65F  Payment of one‑off payment to families

                   If an individual is entitled to a one‑off payment to families, the Secretary must pay the payment to the individual in a single lump sum:

                     (a)  on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and

                     (b)  in such manner as the Secretary considers appropriate.

Note:          The individual does not have to make a claim for the payment.


 

Division 4BEconomic security strategy payment to families

65G  Payment of economic security strategy payment to families

                   If an individual is entitled to an economic security strategy payment to families, the Secretary must pay the payment to the individual in a single lump sum:

                     (a)  on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and

                     (b)  in such manner as the Secretary considers appropriate.

Note:          The individual does not have to make a claim for the payment.


 

Division 4CBack to school bonus and single income family bonus

65H  Payment of back to school bonus and single income family bonus

                   If an individual is entitled to a back to school bonus or a single income family bonus, the Secretary must pay the bonus to the individual in a single lump sum:

                     (a)  on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the bonus to be made; and

                     (b)  in such manner as the Secretary considers appropriate.

Note:          The individual does not have to make a claim for the bonus.


 

Division 5Payment protection and garnishee orders

66  Protection of payments under this Part

             (1)  Payments of the following are absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise:

                     (a)  family tax benefit;

                     (b)  family tax benefit advances;

                     (c)  baby bonus;

                     (d)  maternity immunisation allowance;

                     (e)  child care benefit;

                    (ea)  child care rebate;

                      (f)  payments under section 219Q or subsection 219QA(2) in respect of fee reduction;

                    (fa)  payments of enrolment advances under section 219RA;

                    (fb)  payments under section 219RD (business continuity payments);

                     (g)  one‑off payment to families;

                     (h)  economic security strategy payment to families;

                      (i)  back to school bonus or single income family bonus.

             (2)  Subsection (1) has effect subject to:

                     (a)  subsections 23(4), 56(3) and 56A(3) (about payment of a person’s family assistance to someone else on behalf of the person); and

                    (aa)  subsections 65EAA(3) and 65EF(3) (about payment of child care rebate in a different way); and

                    (ab)  subsection 65EAB(3) (about setting off a decrease in a quarterly amount of child care rebate against rebate for a later quarter); and

                     (b)  section 84 (about deductions from a person’s family tax benefit to repay a debt of the person); and

                    (ba)  section 84A (about setting off a person’s entitlement to family assistance against a debt of the person); and

                    (bb)  section 87A (setting off debts against the payment of enrolment advances under section 219RA);

                    (bc)  section 87B (setting off debts against payments under section 219Q or subsection 219QA(2) in respect of fee reduction);

                     (c)  section 92 (about a person consenting to deductions from the person’s family tax benefit to repay the debt of someone else); and

                    (ca)  section 92A (about setting off family assistance of a person to repay the debt of another person); and

                    (cb)  section 219QA (setting off a recalculated fee reduction against payments under section 219Q or subsection 219QA(2) in respect of fee reduction or payments of enrolment advances under section 219RA);

                    (cc)  section 219RC (setting off an enrolment advance against payments under section 219Q or subsection 219QA(2) in respect of fee reduction or payments of enrolment advances under section 219RA);

                     (d)  section 225 (about making of deductions from family assistance for payment to the Commissioner of Taxation); and

                     (e)  section 226 (about setting off a family assistance entitlement against a tax liability); and

                      (f)  section 227 (about deductions from family tax benefit to repay certain child support debts); and

                     (g)  Part 3B of the Social Security (Administration) Act 1999.

67  Effect of garnishee etc. order

             (1)  If:

                     (a)  a person has an account with a financial institution; and

                     (b)  payments of any of the kinds mentioned in subsection 66(1) are being paid, or have been paid, to the credit of the account; and

                     (c)  a court order in the nature of a garnishee order comes into force in respect of the account;

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

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

Method statement

Step 1.    Work out the total amount of the payments mentioned in subsection (1) that have been paid to the credit of the account during the 4 week period immediately before the court order came into force.

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


 

Part 4Overpayments and debt recovery

Division 1Preliminary

68  Meaning of amount paid to person

             (1)  For the purposes of this Part, amount paid to person in respect of whom a determination of entitlement to be paid child care benefit has been made—means the amount of the entitlement (see subsection 3(1)) paid to the person.

          (1A)  In the case of a person in respect of whom a determination of entitlement to be paid child care benefit by fee reduction has been made under section 51B (individual) or 54B (approved child care service), the amount of the entitlement paid to the person consists of:

                     (a)  the amount:

                              (i)  in the case of an individual—that the service that provided care in respect of which the determination under section 51B was made is required, under section 219B, to pass on to the individual as a fee reduction for that care; or

                             (ii)  in the case of a service that provided care in respect of which a determination under section 54B was made—that the service is required, under section 219BA, to pass on to itself as a fee reduction for that care; and

                     (b)  the amount, as paid to the person, of the difference (if any) referred to in:

                              (i)  in the case of an individual—subsection 56(1); and

                             (ii)  in the case of an approved child care service—subsection 56B(1).

             (2)  For the purposes of this Part, an amount of family assistance is taken to be paid to a person if that amount is applied against a liability of that person or another person for:

                     (a)  a primary tax; or

                     (b)  a debt under this Act or the Social Security Act 1991.

68A  Recovery from approved child care service

                   The amount of a debt due under this Part by an approved child care service is payable by the operator of the service.

69  Special provisions relating to approved child care services

                   For the purposes of this Part, a reference to an amount being paid to a person when the person is an approved child care service includes a reference to an amount that, at the time when it was paid, was paid to an approved child care service even if:

                     (a)  the service is no longer approved; or

                     (b)  the service operator no longer operates the service concerned.


 

Division 2Amounts recoverable under this Act

70  Debts due to the Commonwealth

                   If an amount has been paid by way of family assistance, one‑off payment to families, a payment under section 219Q or subsection 219QA(2), a payment of an enrolment advance under section 219RA, a payment under section 219RD, economic security strategy payment to families, back to school bonus or single income family bonus, the amount is a debt due to the Commonwealth only to the extent to which a provision of:

                     (a)  this Act; or

                     (b)  the Data‑matching Program (Assistance and Tax) Act 1990;

expressly provides that it is.

71  Debts arising in respect of family assistance other than child care benefit and family tax benefit advance

No entitlement to amount

             (1)  If:

                     (a)  an amount has been paid to a person by way of family tax benefit, baby bonus or maternity immunisation allowance (the assistance) in respect of a period or event; and

                     (b)  the person was not entitled to the assistance in respect of that period or event;

the amount so paid is a debt due to the Commonwealth by the person.

Overpayment

             (2)  If:

                     (a)  an amount (the received amount) has been paid to a person by way of assistance; and

                     (b)  the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.

71A  Debts arising in respect of family tax benefit advances

             (1)  If:

                     (a)  an individual receives an amount by way of family tax benefit advance; and

                     (b)  on a particular day, before the end of the family tax benefit advance period worked out in accordance with section 34:

                              (i)  the individual ceases to be entitled to be paid family tax benefit by instalment; or

                             (ii)  by virtue of the operation of subclause 5(2) or 25A(2) of Schedule 1 to the Family Assistance Act, the individual’s Part A rate is no longer to be reduced by the FTB advance rate;

the amount by which the family tax benefit advance exceeds the reduction amount calculated in accordance with subsection (2) becomes a debt due to the Commonwealth by the person.

             (2)  For the purposes of subsection (1), the reduction amount in relation to an individual is an amount calculated in accordance with the formula:

where:

number of reduction days means the number of days in the individual’s family tax benefit advance period worked out under section 34 during which the individual’s Part A rate was reduced under subclause 5(1) or 25A(1) of Schedule 1 to the Family Assistance Act.

71B  Debts where no entitlement or where enrolment advance wrongly paid

             (1)  If:

                     (a)  an approved child care service is required under section 219B to pass an amount on to an individual (the recipient) in respect of one or more sessions of child care provided by the service to a child, but the recipient was not entitled to child care benefit in respect of the session or sessions of care; or

                     (b)  an approved child care service is required under section 219BA to pass an amount on to itself (the recipient) in respect of one or more sessions of child care provided by the service to a child at risk, but the recipient was not entitled to child care benefit in respect of the session or sessions of care; or

                     (c)  an amount has been paid to a person (the recipient) by way of child care benefit in respect of a period, but the recipient was not entitled to child care benefit in respect of that period;

the amount so paid is, subject to section 71F, a debt due to the Commonwealth by the recipient.

             (2)  If:

                     (a)  an enrolment advance was paid to a child care service under section 219RA; and

                     (b)  the service was not entitled to be paid the advance;

the amount of the advance becomes a debt due to the Commonwealth by the service.

             (3)  If:

                     (a)  a payment under section 219Q or subsection 219QA(2) in respect of fee reduction, or a payment under section 219RA of an enrolment advance, is made to a financial institution for the credit of an account kept with the institution (the incorrect account); and

                     (b)  the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of someone who was not the person, or one of the persons, in whose name the incorrect account was kept;

an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, as the case requires, in whose name the incorrect account was kept.

71C  Debts arising in respect of child care benefit where overpayment

                   If:

                     (a)  an amount (the received amount) has been paid to a person by way of child care benefit in respect of a period; and

                     (b)  the received amount is greater than the amount (the correct amount) of benefit that should have been paid to the person under the family assistance law in respect of that period;

the difference between the received amount and the correct amount is, subject to section 71F, a debt due to the Commonwealth by the person.

71CAA  Debts arising in respect of child care rebate where no entitlement

No entitlement to rebate arising from CCB by fee reduction

             (1)  If:

                     (a)  an amount has been paid to an individual by way of child care rebate for a quarter under Subdivision AA of Division 4AA of Part 3 in respect of a period during which the individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and

                     (b)  the individual is not entitled to rebate in respect of the child and that period;

the amount is a debt due to the Commonwealth by the individual.

Note 1:       For paragraph (b), the individual will not be entitled to rebate if a determination of no entitlement has been made under subsection 65EA(3) in respect of the child and the period.

Note 2:       A determination of no entitlement under subsection 65EA(3) could arise as a decision substituted on review under Part 5.

             (2)  If:

                     (a)  an amount has been paid to an individual by way of child care rebate in respect of a child for an income year as a result of:

                              (i)  a determination under subsection 65EA(2) in respect of a period of care covered by a determination made under section 51B or subsection 51C(1); or

                             (ii)  a determination under subsection 65EC(1) in respect of a period of care covered by a determination made under section 51B or subsection 51C(1); and

                     (b)  the individual is not entitled to rebate in respect of the child and that period;

the amount is a debt due to the Commonwealth by the individual.

No entitlement to rebate arising from CCB for past period

             (3)  If:

                     (a)  an amount has been paid to an individual by way of child care rebate in respect of a child for an income year as a result of:

                              (i)  a determination under subsection 65EB(2) in respect of a period of care covered by a determination made under section 52E or subsection 52G(1); or

                             (ii)  a determination under subsection 65EC(1) in respect of a period of care covered by a determination made under section 52E or subsection 52G(1); and

                     (b)  the individual is not entitled to rebate in respect of the child and that period;

the amount is a debt due to the Commonwealth by the individual.

No entitlement to rebate arising from CCB by fee reduction or for past period—other situations

             (4)  If:

                     (a)  an amount has been paid to an individual by way of child care rebate:

                              (i)  for an income year, or for a quarter in an income year, in respect of a child; and

                             (ii)  in circumstances other than those mentioned in subsection (1), (2), (3) or (5); and

                     (b)  the individual is not entitled to rebate for that year in respect of the child;

the amount is a debt due to the Commonwealth by the individual.

No entitlement to rebate arising from CCB by single payment/in substitution

             (5)  If:

                     (a)  an amount has been paid to an individual by way of child care rebate in respect of a child for a period:

                              (i)  as a result of a determination under subsection 65ECA(2) in respect of a period of care covered by a determination made under section 53D or subsection 53E(1); or

                             (ii)  in other circumstances because of the death of another individual; and

                     (b)  the individual is not entitled to rebate in respect of the child and that period;

the amount is a debt due to the Commonwealth by the individual.

71CAB  Debts arising in respect of child care rebate where overpayment

Overpayment of rebate arising from CCB by fee reduction—for a quarter

             (1)  If:

                     (a)  an amount (the received amount) has been paid to an individual by way of child care rebate for a quarter:

                              (i)  under Subdivision AA of Division 4AA of Part 3; and

                             (ii)  in respect of a period during which the individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and

                     (b)  the received amount is greater than the amount (the correct amount) of rebate to which the individual is entitled under subsection 65EA(2) or 65EC(1) in respect of the child and that period;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.

Note:          A determination of entitlement under subsection 65EA(2) or 65EC(1) could arise as a decision substituted on review under Part 5.

Overpayment of rebate arising from CCB by fee reduction—for an income year

             (2)  If:

                     (a)  an amount (the received amount) has been paid to an individual by way of child care rebate in respect of a child for an income year in respect of a period of care covered by a determination made under section 51B or subsection 51C(1); and

                     (b)  the received amount is greater than the amount (the correct amount) of rebate to which the individual is entitled under subsection 65EA(2) or 65EC(1) in respect of the child and that period;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.

Note:          A determination of entitlement under subsection 65EA(2) or 65EC(1) could arise as a decision substituted on review under Part 5.

Overpayment of rebate arising from CCB for past period

             (3)  If:

                     (a)  an amount (the received amount) has been paid to an individual by way of child care rebate in respect of a child for an income year in respect of a period of care covered by a determination made under section 52E or subsection 52G(1); and

                     (b)  the received amount is greater than the amount (the correct amount) of rebate to which the individual is entitled under subsection 65EB(2) or 65EC(1) in respect of the child and that period;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.

Note:          A determination of entitlement under subsection 65EB(2) or 65EC(1) could arise as a decision substituted on review under Part 5.

Overpayment of rebate arising from CCB in substitution

             (4)  If:

                     (a)  an amount (the received amount) has been paid to an individual by way of child care rebate in respect of a child for a period of care covered by a determination made under section 53D or subsection 53E(1); and

                     (b)  the received amount is greater than the amount (the correct amount) of rebate to which the individual is entitled under subsection 65ECA(2) in respect of the child and that period;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.

Note:          A determination of entitlement under subsection 65ECA(2) could arise as a decision substituted on review under Part 5.

71CAC  Debts arising in respect of child care rebate paid to wrong account

                   Subject to subsection 93A(5), if:

                     (a)  a payment by way of child care rebate is made to a financial institution for the credit of an account kept with the institution (the incorrect account); and

                     (b)  the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of someone who was not the person or one of the persons in whose name or names the incorrect account was kept;

an amount equal to the amount of the payment made to the institution is a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name or names the incorrect account was kept.

71CA  Debts arising in respect of fee reduction payments not remitted—debt owed by service

                   If an approved child care service does not remit to the Secretary an amount that the service is required to remit under section 219QB (fee reductions that it is not reasonably practicable for the service to pass on), the amount is a debt due to the Commonwealth by the service.

71D  Debt arising in respect of child care benefit where false or misleading statement by individual—debt owed by individual

Child care benefit paid to service because of false or misleading statement by individual

             (1)  If:

                     (a)  an individual knowingly makes a false or misleading statement to:

                              (i)  an approved child care service; or

                             (ii)  an officer; and

                     (b)  because of the false or misleading statement, the service is:

                              (i)  eligible under section 47 of the Family Assistance Act in respect of the child and the session; or

                             (ii)  being so eligible, is entitled to an amount of child care benefit in respect of the child and the session; and

                     (c)  an amount of child care benefit is paid to the service for a session of care provided by the service to a child who was in the care of the individual immediately before the session was provided;

the difference between the amount paid to the service and the amount that would have been paid if the individual had not made the statement is a debt due to the Commonwealth by the individual.

             (2)  For the purposes of subsection (1), the amount that would have been paid if the individual had not made the statement may be nil.

Child care benefit, paid to individual who is conditionally eligible, following service’s certificate because of false or misleading statement by individual

             (3)  If:

                     (a)  an individual knowingly makes a false or misleading statement to an approved child care service; and

                     (b)  the service, in reliance on the statement:

                              (i)  certifies a rate under subsection 76(1) of the Family Assistance Act; or

                             (ii)  gives a certificate relating to a weekly limit of hours under subsection 54(10), 55(6) or 56(3) of that Act; and

                     (c)  an amount of child care benefit is paid to the individual because of the certificate;

the difference between the amount paid to the individual and the amount that would have been paid if the individual had not made the statement is a debt due to the Commonwealth by the individual.

71E  Debt arising in respect of child care benefit when false or misleading statement etc. by service—debt owed by service

Child care benefit paid at rate certified by service because of false or misleading statement by service in certificate

             (1)  If:

                     (a)  an approved child care service certifies a rate under section 76 of the Family Assistance Act in relation to a session of care provided by the service to:

                              (i)  an FTB child, or a regular care child, of an individual, or the individual’s partner; or

                             (ii)  a child who was in the care of an individual immediately before the session was provided; and

                     (b)  the service certifies the rate knowing that the reason for certifying the rate does not apply in respect of the child or the individual; and

                     (c)  an amount of child care benefit is paid because of the certificate;

the difference between the amount paid and the amount that would have been paid if the service had not certified the rate is a debt due to the Commonwealth by the service.

Child care benefit paid following service’s certificate relating to weekly limit of hours made because of false or misleading statement by service in certificate

             (2)  If:

                     (a)  an approved child care service gives a certificate under subsection 54(10), 55(6) or 56(3) or (4) of the Family Assistance Act relating to a weekly limit of hours in sessions of care provided by the service to:

                              (i)  an FTB child, or a regular care child, of an individual, or the individual’s partner; or

                             (ii)  a child who was in the care of an individual immediately before the first session of care was provided; and

                     (b)  the service gives the certificate knowing that the reason for giving the certificate does not apply in respect of the child or the individual; and

                     (c)  an amount of child care benefit is paid because of the certificate;

the difference between the amount paid and the amount that would have been paid if the service had not given the certificate is a debt due to the Commonwealth by the service.

Child care benefit paid at rate determined by Secretary because of false or misleading statement by service

             (3)  If:

                     (a)  an approved child care service knowingly makes a false or misleading statement to an officer; and

                     (b)  a determination of rate is made by the Secretary under subsection 81(2) or (3) of the Family Assistance Act in reliance on the statement; and

                     (c)  an amount of child care benefit is paid because of the determination;

the difference between the amount paid because of the determination and the amount that would have been paid if the service had not made the statement is a debt due to the Commonwealth by the service.

Child care benefit paid following variation of determination of weekly limit of hours made because of service’s false or misleading statement by service

             (4)  If:

                     (a)  an approved child care service knowingly makes a false or misleading statement to an officer; and

                     (b)  a variation of a determination of a weekly limit of hours is made by the Secretary under subsection 64A(2), 64B(2) or 64C(2), in reliance on the statement; and

                     (c)  an amount of child care benefit is paid because of the variation;

the difference between the amount paid and the amount that would have been paid if the service had not made the statement is a debt due to the Commonwealth by the service.

Service eligible for child care benefit and service makes false or misleading statement as to eligibility

             (5)  If:

                     (a)  an approved child care service is eligible for child care benefit under section 47 of the Family Assistance Act for care provided by the service to a child at risk; and

                     (b)  the service is so eligible knowing that it does not, at the time the care is provided, believe the child to be at risk of serious abuse or neglect; and

                     (c)  a determination of entitlement to be paid child care benefit by fee reduction for care provided to the child has been made under section 54B in respect of the service; and

                     (d)  an amount of child care benefit is paid because of the determination;

the difference between the amount paid and the amount that would have been paid if the service was not so eligible, is a debt due to the Commonwealth by the service.

71F  Debts arising under more than one provision

             (1)  If:

                     (a)  a debt is due to the Commonwealth by an individual under subsection 71B(1) or section 71C; and

                     (b)  part or all of the amount of the debt is attributable to a false or misleading statement etc. made by an approved child care service as referred to in section 71E; and

                     (c)  a debt is due by the service to the Commonwealth under section 71E in respect of the false or misleading statement etc.;

the amount of the debt due by the individual under subsection 71B(1) or section 71C that is also a debt owed by the service under section 71E is, despite the operation of subsection 71B(1) or section 71C, not an amount of the debt owed by the individual.

             (2)  If:

                     (a)  a debt is due to the Commonwealth by an approved child care service under subsection 71B(1) or section 71C; and

                     (b)  part or all of the amount of the debt is attributable to a false or misleading statement by an individual as referred to in section 71D; and

                     (c)  a debt is due by the individual to the Commonwealth under section 71D in respect of the false or misleading statement;

the amount of the debt due by the service under subsection 71B(1) or section 71C that is also a debt owed by the individual under section 71D is, despite the operation of subsection 71B(1) or section 71C, not an amount of the debt owed by the service.

71G  Debts arising in respect of child care benefit where fee reduction or enrolment advance paid to service—debt owed by service

             (1)  If:

                     (a)  either:

                              (i)  an amount is paid under section 219Q to a person that is an approved child care service (weekly fee reduction payments); or

                             (ii)  such an amount would be paid, but for a set off under subsection 82(2) or section 219QA, 219RC or 219RE; and

                     (b)  the service’s approval is suspended or cancelled under this Act before a session of care in respect of which the payment was made;

so much of the amount of the fee reduction paid as relates to that session of care is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.

             (2)  If:

                     (a)  an amount is required to be set off under subsection 219QA(3) against the payment of another amount to a person that is an approved child care service (payment where recalculation reduces the amount of a fee reduction); and

                     (b)  the service’s approval is suspended or cancelled under this Act; and

                     (c)  the amount has not already been set off against another amount under subsection 219QA(3) by the day the service’s approval is suspended or cancelled;

the amount is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.

             (3)  If:

                     (a)  either:

                              (i)  an amount is paid under section 219RA to an approved child care service (payment of enrolment advances); or

                             (ii)  such an amount would be paid, but for a set off under subsection 82(2) or section 219QA, 219RC or 219RE; and

                     (b)  the service’s approval is suspended or cancelled under this Act; and

                     (c)  the amount has not already been set off against another amount under section 219RC by the day the service’s approval is suspended or cancelled;

the amount is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.

71GA  Debt arising in respect of remittal of enrolment advances under paragraph 200(1)(g)

                   If, under paragraph 200(1)(g), the Secretary requires an approved child care service to remit enrolment advances paid to the service under section 219RA, an amount equal to the advances that the service is required to remit is a debt due to the Commonwealth by the service.

71GB  Debts arising in respect of business continuity payments paid to service—debt owed by service

             (1)  If:

                     (a)  an amount is paid to an approved child care service under section 219RD (business continuity payments); and

                     (b)  the service’s approval is suspended or cancelled under this Act; and

                     (c)  the whole or a part of the amount has not already been set off against another amount under section 219RE by the day the service’s approval is suspended or cancelled;

then that whole or part is a debt due to the Commonwealth by the service immediately before its approval was suspended or cancelled.

             (2)  Subject to subsection 93A(5), if:

                     (a)  a payment under section 219RD is made to a financial institution for the credit of an account kept with the institution (the incorrect account); and

                     (b)  the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of a person who was not the person or one of the persons in whose name or names the incorrect account was kept;

an amount equal to the amount of the payment made to the institution is a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name or names the incorrect account was kept.

71H  Debts arising where reporting period limit is exceeded—debt owed by service

             (1)  If:

                     (a)  an approved child care service has, by certificates given under section 76 of the Family Assistance Act, committed amounts of child care benefit in a reporting period; and

                     (b)  the total amount of child care benefit so committed by the service exceeds the reporting period limit for that reporting period (see section 79 of the Family Assistance Act); and

                     (c)  the service gives, during that reporting period, a further certificate under section 76 of the Family Assistance Act; and

                     (d)  an amount of child care benefit is paid because of that further certificate;

the difference between the amount paid and the amount that would have been paid if the service had not given the further certificate is a debt due to the Commonwealth by the service.

71I  Debts arising in respect of one‑off payment to families

             (1)  This section applies in relation to an individual (the recipient) who has been paid a one‑off payment to families (the relevant payment).

What determinations are relevant?

             (2)  Each of the following is a relevant determination in relation to the recipient:

                     (a)  if the relevant payment was made because, at that time, subsection 86(2) of the Family Assistance Act applied to the recipient (whether or not it was also made because subsection 86(3) of that Act also applied)—the determination referred to in paragraph 86(2)(a) of the Family Assistance Act;

                     (b)  if the relevant payment was made because, at that time, subsection 86(3) of the Family Assistance Act applied to the recipient (whether or not it was also made because subsection 86(2) also applied)—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the, or an, instalment that satisfied paragraphs 86(3)(a), (b) and (c) of the Family Assistance Act was paid;

                     (c)  if the relevant payment was made because, at that time, subsection 86(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 86(4)(b) of the Family Assistance Act.

Situation in which whole amount is a debt

             (3)  If:

                     (a)  after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to:

                              (i)  11 May 2004 (if the relevant determination is covered by paragraph (2)(a) or (b)); or

                             (ii)  all or part of the 2002‑03 income year (if the relevant determination is covered by paragraph (2)(c));

                            is or was (however described) changed, revoked, set aside, or superseded by another determination; and

                     (b)  the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

                              (i)  unless subparagraph (ii) applies—the recipient; or

                             (ii)  if the relevant determination is covered by paragraph (2)(b)—the other individual, or one of the other individuals, referred to in paragraph 86(3)(b) of the Family Assistance Act; and

                     (c)  had the change, revocation, setting aside or superseding occurred on or before 11 May 2004, the relevant payment would not have been made;

the amount of the relevant payment is a debt due to the Commonwealth by the recipient.

Situation in which part of amount is a debt

             (4)  If:

                     (a)  after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to:

                              (i)  11 May 2004 (if the relevant determination is covered by paragraph (2)(a) or (b)); or

                             (ii)  all or part of the 2002‑03 income year (if the relevant determination was covered by paragraph (2)(c));

                            is or was (however described) changed, revoked, set aside, or superseded by another determination; and

                     (b)  the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

                              (i)  unless subparagraph (ii) applies—the recipient; or

                             (ii)  if the relevant determination is covered by paragraph (2)(b)—the other individual, or one of the other individuals, referred to in paragraph 86(3)(b) of the Family Assistance Act; and

                     (c)  had the change, revocation, setting aside or superseding occurred on or before 11 May 2004, the amount of the relevant payment would have been reduced;

the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.

71J  Debts arising in respect of economic security strategy payment to families

             (1)  This section applies in relation to an individual (the recipient) who has been paid an economic security strategy payment to families (the relevant payment).

What determinations are relevant?

             (2)  Each of the following is a relevant determination in relation to the recipient:

                     (a)  if the relevant payment was made because, at that time, subsection 89(2) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 89(2)(a) of that Act;

                     (b)  if the relevant payment was made because, at that time, subsection 89(3) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 89(3)(a) of that Act;

                     (c)  if the relevant payment was made because, at that time, subsection 89(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 89(4)(a) of that Act;

                     (d)  if the relevant payment was made because, at that time, subsection 89(5) of the Family Assistance Act applied to the recipient—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs 89(5)(a), (b) and (c) of the Family Assistance Act was paid;

                     (e)  if the relevant payment was made because, at that time, subsection 89(6) of the Family Assistance Act applied to the recipient—a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;

                      (f)  if the relevant payment was made because, at that time, subsection 89(7) of the Family Assistance Act applied to the recipient—a determination under the Veterans’ Children Education Scheme because of which the whole or part of the allowance was paid in the circumstances described in that subsection;

                     (g)  if the relevant payment was made because, at that time, subsection 89(8) of the Family Assistance Act applied to the recipient—a determination under the Military Rehabilitation and Compensation Act Education and Training Scheme because of which the whole or part of the allowance was paid in the circumstances described in that subsection;

                     (h)  if the relevant payment was made because, at that time, subsection 93(2) of the Family Assistance Act applied to the recipient—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs 93(2)(a) and (b) of the Family Assistance Act was paid;

                      (i)  if the relevant payment was made because, at that time, subsection 93(3) of the Family Assistance Act applied to the recipient—a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;

                      (j)  if the relevant payment was made because, at that time, subsection 93(4) of the Family Assistance Act applied to the recipient—a determination under the Veterans’ Children Education Scheme because of which the allowance was paid in the circumstances described in that subsection;

                     (k)  if the relevant payment was made because, at that time, subsection 93(5) of the Family Assistance Act applied to the recipient—a determination under the Military Rehabilitation and Compensation Act Education and Training Scheme because of which the allowance was paid in the circumstances described in that subsection.

Situation in which whole amount is a debt

             (3)  If:

                     (a)  after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 14 October 2008, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

                     (b)  the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

                              (i)  unless subparagraph (ii) or (iii) applies—the recipient;

                             (ii)  if the relevant determination is covered by paragraph (2)(d)—the recipient or the other individual, or one of the other individuals, covered by paragraph 89(5)(b) of the Family Assistance Act;

                            (iii)  if the relevant determination is covered by paragraph (2)(e), (f) or (g)—the recipient or the student, or one of the students, covered by paragraph 89(6)(a), (7)(a) or (8)(a) of the Family Assistance Act; and

                     (c)  had the change, revocation, setting aside or superseding occurred on or before 14 October 2008, the relevant payment would not have been made;

the amount of the relevant payment is a debt due to the Commonwealth by the recipient.

Situation in which part of amount is a debt

             (4)  If:

                     (a)  after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 14 October 2008, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

                     (b)  the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

                              (i)  unless subparagraph (ii) or (iii) applies—the recipient;

                             (ii)  if the relevant determination is covered by paragraph (2)(d)—the recipient or the other individual, or one of the other individuals, covered by paragraph 89(5)(b) of the Family Assistance Act;

                            (iii)  if the relevant determination is covered by paragraph (2)(e), (f) or (g)—the recipient or the student, or one of the students, covered by paragraph 89(6)(a), (7)(a) or (8)(a) of the Family Assistance Act; and

                     (c)  had the change, revocation, setting aside or superseding occurred on or before 14 October 2008, the amount of the relevant payment would have been reduced;

the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.

71K  Debts arising in respect of back to school bonus or single income family bonus

             (1)  This section applies in relation to an individual (the recipient) who has been paid a back to school bonus or a single income family bonus (the relevant payment).

What determinations are relevant?

             (2)  Each of the following is a relevant determination in relation to the recipient:

                     (a)  if the relevant payment was made because, at that time, subsection 95(2) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 95(2)(a) of that Act;

                     (b)  if the relevant payment was made because, at that time, subsection 95(3) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 95(3)(a) of that Act;

                     (c)  if the relevant payment was made because, at that time, subsection 95(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 95(4)(a) of that Act;

                     (d)  if the relevant payment was made because, at that time, section 98 of the Family Assistance Act applied to the recipient—the determination made under Part 3 of the Social Security (Administration) Act 1999 that resulted in the recipient receiving the carer payment or disability support pension;

                     (e)  if the relevant payment was made because, at that time, subsection 101(2) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 101(2)(a) of that Act;

                      (f)  if the relevant payment was made because, at that time, subsection 101(3) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 101(3)(a) of that Act;

                     (g)  if the relevant payment was made because, at that time, subsection 101(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 101(4)(a) of that Act.

Situation in which whole amount is a debt

             (3)  If:

                     (a)  after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 3 February 2009, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

                     (b)  the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the recipient knowingly made a false or misleading statement, or knowingly provided false information; and

                     (c)  had the change, revocation, setting aside or superseding occurred on or before 3 February 2009, the relevant payment would not have been made;

the amount of the relevant payment is a debt due to the Commonwealth by the recipient.

Situation in which part of amount is a debt

             (4)  If:

                     (a)  after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 3 February 2009, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

                     (b)  the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the recipient knowingly made a false or misleading statement, or knowingly provided false information; and

                     (c)  had the change, revocation, setting aside or superseding occurred on or before 3 February 2009, the amount of the relevant payment would have been reduced;

the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.

73  Debts arising from AAT stay orders

                   If:

                     (a)  a person applies to the AAT under section 142 for review of a decision; and

                     (b)  the AAT makes an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975; and

                     (c)  as a result of the order, the amount that has in fact been paid to the person by way of family assistance is greater than the amount that should have been paid to the person under the family assistance law;

the difference between the amount that was in fact paid to the person and the amount that should have been paid is a debt due to the Commonwealth.

74  Person other than payee obtaining payment of a cheque

                   If:

                     (a)  an amount of family assistance, one‑off payment to families, economic security strategy payment to families, back to school bonus or single income family bonus is paid by cheque; and

                     (b)  a person other than the payee obtains possession of the cheque from the payee; and

                     (c)  the cheque is not endorsed by the payee to the person; and

                     (d)  the person obtains value for the cheque;

the amount of the cheque is a debt due by the person to the Commonwealth.

75  Debts arising from conviction of person for involvement in contravention of family assistance law by debtor

                   If:

                     (a)  a person (the recipient) is liable to repay an amount paid to the recipient under the family assistance law; and

                     (b)  the amount was paid to the recipient because the recipient contravened a provision of the family assistance law; and

                     (c)  another person is convicted of an offence:

                              (i)  that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code; or

                             (ii)  against section 11.4 or 11.5 of the Criminal Code;

                            in relation to that contravention;

the recipient and the other person are jointly and severally liable to pay the debt.

76  Data‑matching Program (Assistance and Tax) Act debts

                   If:

                     (a)  an amount has been paid to a person by way of family assistance; and

                     (b)  the amount is a debt due to the Commonwealth under subsection 11(6) of the Data‑matching Program (Assistance and Tax) Act 1990;

the amount so paid is recoverable by the Commonwealth.

77  Notices in respect of debt

             (1)  If a debt by a person to the Commonwealth under a provision of this Part has not been wholly paid, the Secretary must give the person a notice specifying:

                     (a)  the date on which it was issued (the date of the notice); and

                     (b)  the reason the debt was incurred, including a brief explanation of the circumstances that led to the debt being incurred; and

                     (c)  the period to which the debt relates; and

                     (d)  the outstanding amount of the debt at the date of the notice; and

                     (e)  the day on which the outstanding amount is due and payable; and

                      (f)  that a range of options is available for repayment of the debt; and

                     (g)  the contact details for inquiries concerning the debt.

             (2)  The outstanding amount of the debt is due and payable on the 28th day after the date of the notice.

             (3)  If the debt has not been wholly paid and:

                     (a)  the person has failed to enter into an arrangement under section 91 to pay the outstanding amount of the debt; or

                     (b)  the person has entered into an arrangement under that section but has failed to make a payment in accordance with the arrangement or, if the arrangement has been amended, in accordance with the arrangement as amended;

the Secretary may give to the person a further notice specifying:

                     (c)  the date on which it was issued (the date of the further notice); and

                     (d)  the matters mentioned in paragraphs (1)(b) to (g); and

                     (e)  the effect of sections 78 and 78B; and

                      (f)  how the interest under section 78 is to be calculated.

             (4)  A notice given under subsection (1) may also specify the matters mentioned in paragraphs (3)(e) and (f) and, if it does so, it is taken also to be a further notice given under subsection (3).

78  Interest on debt

             (1)  This section applies to a person who:

                     (a)  receives a further notice given under subsection 77(3); and

                     (b)  is not receiving instalments of family tax benefit.

             (2)  If:

                     (a)  the person has not entered into an arrangement, on or before the final payment day, to pay the outstanding amount of the debt; and

                     (b)  the Secretary has notified the person in writing that the person will be required to pay interest under this subsection;

the person is liable to pay interest:

                     (c)  from and including the first day after the final payment day until the debt is wholly paid; and

                     (d)  at the penalty interest rate;

on the outstanding amount from time to time.

          (2A)  Under this section, a person is not liable to pay interest on a debt, or the proportion of a debt, that was incurred because of an administrative error made by the Commonwealth or an agent of the Commonwealth.

             (3)  If:

                     (a)  the person has entered into an arrangement to pay the outstanding amount of the debt; and

                     (b)  the person has failed to make a particular payment in accordance with the arrangement; and

                     (c)  the Secretary has notified the person in writing that the person will be required to pay interest under this subsection;

the person is liable to pay interest:

                     (d)  if the failure occurs on or before the final payment day—from and including the first day after the final payment day until the debt is wholly paid; or

                     (e)  if the failure occurs after the final payment day—from and including the day after the day in respect of which the last payment in respect of the debt was made until the debt is wholly paid;

at the penalty interest rate, on the outstanding amount from time to time.

             (4)  For the purposes of subsections (2) and (3), the final payment day is the latest of the following days:

                     (a)  the 90th day after the day on which the outstanding amount of the debt was due and payable;

                     (b)  the 28th day after the date of the further notice given under subsection 77(3);

                     (c)  if a request for review has been made within 90 days after the receipt of a notice issued under subsection 77(1)—90 days after the day on which an authorised review officer makes a decision in respect of the request.

             (5)  The interest payable on the outstanding amount of a debt is a debt due to the Commonwealth.

             (6)  If:

                     (a)  interest is payable on the debt; and

                     (b)  an amount is paid for the purpose of paying the debt and the interest;

the amount so paid is to be applied as follows:

                     (c)  until the debt (excluding interest) is fully paid—in satisfaction of the amount of the debt that is due when the payment is made;

                     (d)  after the debt (excluding interest) is fully paid—in satisfaction of the interest that had become payable on the debt before the debt was fully paid.

             (7)  In this section:

arrangement means:

                     (a)  an arrangement entered into with the Secretary under section 91; or

                     (b)  if such an arrangement has been amended—the arrangement as amended.

78A  Determination that interest not to be payable

             (1)  The Secretary may determine that interest is not payable, or is not payable in respect of a particular period, by a person on the outstanding amount of a debt.

          (1A)  The Secretary may make a determination under this section in circumstances that include (but are not limited to) the Secretary being satisfied that the person has a reasonable excuse for:

                     (a)  failing to enter into an arrangement under section 91 to pay the outstanding amount of the debt; or

                     (b)  having entered an arrangement, failing to make a payment in accordance with that arrangement.

             (2)  The determination may relate to a period before, or to a period that includes a period before, the making of a determination.

             (3)  The determination may be expressed to be subject to the person complying with one or more specified conditions.

             (4)  If the person has been notified under subsection 78(2) or (3) that he or she will be required to pay interest under that subsection, the Secretary must give written notice of the determination to the person as soon as practicable after the determination is made.

             (5)  Contravention of subsection (4) does not invalidate a determination.

             (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.

78B  Administrative charge

             (1)  When a person first becomes liable to pay interest under section 78 in respect of the outstanding amount of a particular debt, the person is liable to pay an administrative charge of $50 in respect of the outstanding amount of that debt.

             (2)  An administrative charge payable by a person is a debt due to the Commonwealth.

79  Penalty interest rate

             (1)  The penalty interest rate is:

                     (a)  20% per year; or

                     (b)  if a lower rate is determined under subsection (2)—that lower rate.

             (2)  The Minister may, by legislative instrument, determine a rate of less than 20% per year that is to be the penalty interest rate.

79A  Guidelines on the penalty interest provisions

                   The Minister must, not later than one month after:

                     (a)  the day on which the Family and Community Services and Veterans’ Affairs Legislation Amendment (Debt Recovery) Act 2001 receives the Royal Assent; or

                     (b)  1 July 2001;

whichever is the later, and thereafter from time to time, by legislative instrument, determine guidelines for the operation of the provisions of this Act dealing with penalty interest.

80  Debt from failure to comply with garnishee notice

             (1)  If:

                     (a)  a person (the garnishee debtor) is given a notice under section 89 in respect of a debt due by another person (the original debtor) under this Act; and

                     (b)  the garnishee debtor fails to comply with the notice to the extent that he or she is capable of complying with it;

then the amount of the debt outstanding (worked out under subsection (2)) is recoverable from the garnishee debtor by the Commonwealth by means of:

                     (c)  legal proceedings; or

                     (d)  garnishee notice.

             (2)  The amount of the debt outstanding is the amount equal to:

                     (a)  as much of the amount required by the notice under section 89 to be paid by the garnishee debtor as the garnishee debtor was able to pay; or

                     (b)  as much of the debt due by the original debtor at the time when the notice was given as remains due from time to time;

whichever is the lesser.

             (3)  If the Commonwealth recovers:

                     (a)  the whole or part of the debt due by the garnishee debtor under subsection (1); or

                     (b)  the whole or part of the debt due by the original debtor;

then:

                     (c)  both debts are reduced by the amount that the Commonwealth has so recovered; and

                     (d)  the amount specified in the notice under section 89 is to be taken to be reduced by the amount so recovered.

             (4)  This section applies to an amount in spite of any law of a State or Territory (however expressed) under which the amount is inalienable.

             (5)  This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.