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Paid Parental Leave Act 2010

Authoritative Version
Act No. 104 of 2010 as amended, taking into account amendments up to Paid Parental Leave Amendment (Flexibility Measures) Act 2020
An Act to provide for a paid parental leave scheme, and for related purposes
Administered by: Social Services
Registered 18 Aug 2020
Start Date 01 Jul 2020

Commonwealth Coat of Arms of Australia

Paid Parental Leave Act 2010

No. 104, 2010

Compilation No. 36

Compilation date:                              1 July 2020

Includes amendments up to:            Act No. 53, 2020

Registered:                                         18 August 2020

About this compilation

This compilation

This is a compilation of the Paid Parental Leave Act 2010 that shows the text of the law as amended and in force on 1 July 2020 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Chapter 1—Introduction                                                                                       1

Part 1‑1—Introduction                                                                                                       1

Division 1—Preliminary                                                                                              1

1............................ Short title............................................................................ 1

2............................ Commencement.................................................................. 1

3............................ Act binds Crown................................................................ 1

3AA...................... Norfolk Island.................................................................... 1

Division 1A—Objects of this Act                                                                            2

3A......................... Objects of this Act.............................................................. 2

Division 2—Guide to this Act                                                                                   4

4............................ Guide to this Act................................................................. 4

Part 1‑2—Definitions                                                                                                         10

Division 1—Guide to this Part                                                                               10

5............................ Guide to this Part.............................................................. 10

Division 2—The Dictionary                                                                                     11

6............................ The Dictionary.................................................................. 11

6A......................... When a person has a continuous PPL period and the person’s continuous flexible period      25

Chapter 2—When parental leave pay is payable to a person             27

Part 2‑1—Key provisions                                                                                                27

Division 1—Guide to this Part                                                                               27

7............................ Guide to this Part.............................................................. 27

Division 2—When parental leave pay is payable to a person for the person’s PPL period       29

8............................ A determination must be made for parental leave pay to be payable to a person for the person’s PPL period.......................................................................................... 29

9............................ For the determination to be made, the person must be eligible 29

10.......................... For the determination to be made, the person must claim.. 29

11.......................... The determination must specify the person’s PPL period. 30

Division 3—When parental leave pay for a flexible PPL day for a child is payable to a person            32

11A....................... A determination must be made for parental leave pay for a flexible PPL day for a child to be payable to a person............................................................................... 32

11B........................ For a determination to be made, the person must be eligible 32

11C........................ For a determination to be made, the person must claim..... 32

11D....................... Flexible PPL day and flexible PPL period......................... 33

Part 2‑2—Determinations about whether parental leave pay is payable to a person       34

Division 1—Guide to this Part                                                                               34

12.......................... Guide to this Part.............................................................. 34

Division 2—Determinations about whether parental leave pay is payable to a person for a period    36

13.......................... Determination on a primary claim made alone.................. 36

14.......................... Determination on primary and secondary claims made jointly—claimants sharing parental leave pay     37

15.......................... Determination on primary and secondary claims made jointly—secondary claimant to get all the parental leave pay.................................................................................... 40

16.......................... Determination on a secondary claim made after the primary claim           43

17.......................... Determination on a tertiary claim...................................... 44

Division 2A—Determination about whether parental leave pay for a flexible PPL day is payable to a person                                                                                                       46

17A....................... Determination on a primary claim..................................... 46

17B........................ Determination on a secondary claim................................. 47

17C........................ Determination on a tertiary claim...................................... 49

17D....................... Permission to claim flexible PPL days for a child............. 51

Division 3—When the Secretary cannot make a determination that parental leave pay is payable     53

18.......................... The child’s birth has not been verified.............................. 53

19.......................... The child was born before 1 January 2011....................... 54

19A....................... Parental leave pay for flexible PPL days for a child not payable if child born before 1 July 2020           54

20.......................... Multiple births.................................................................. 54

21.......................... Parental leave pay is already payable to the person etc...... 54

Division 4—General provisions applying to determinations about whether parental leave pay is payable                                                                                                                      56

22.......................... Assumptions when making the determination.................. 56

23.......................... When the determination is in force.................................... 56

24.......................... Notice of the determination............................................... 56

25.......................... Revoking the determination on request............................. 57

Division 5—Initial eligibility determinations about parental leave pay 58

26.......................... Initial eligibility determinations in relation to the maximum PPL period for a child 58

26A....................... Initial eligibility determinations relating to flexible PPL days for a child  59

27.......................... Assumptions when making the initial eligibility determination                59

28.......................... When the initial eligibility determination comes into force 59

29.......................... Notice of the initial eligibility determination...................... 59

Part 2‑3—Eligibility for parental leave pay                                                         60

Division 1—Guide to this Part                                                                               60

30.......................... Guide to this Part.............................................................. 60

Division 2—When a person is eligible for parental leave pay              62

31.......................... When a person is eligible for parental leave pay on a day other than a flexible PPL day for a child         62

31AA.................... When a person is eligible for parental leave pay on a flexible PPL day for a child   63

31AB..................... When a person is not eligible for parental leave pay on a flexible PPL day for a child             65

31A....................... Newly arrived resident’s waiting period........................... 67

Division 3—The work test                                                                                        72

32.......................... When a person satisfies the work test............................... 72

33.......................... The work test period......................................................... 73

34.......................... When a person performs qualifying work......................... 75

35.......................... When a person performs paid work.................................. 75

35A....................... Hours of qualifying work on a day in a PPL or DAPP period                76

35B........................ Hours of qualifying work on a day in a jobkeeper payment period          77

36.......................... When there is a permissible break.................................... 78

36A....................... Premature birth or pregnancy‑related complications or illness 79

36B........................ Claimant for parental leave pay who is already eligible for dad and partner pay      79

Division 4—The income test                                                                                    80

Subdivision A—The income test                                                                           80

37.......................... When a person satisfies the income test............................ 80

38.......................... A person’s adjusted taxable income................................. 80

39.......................... The reference income year................................................ 80

40.......................... The relevant PPL income limit.......................................... 81

41.......................... The PPL income limit....................................................... 81

Subdivision B—Indexation of the PPL income limit                                      81

42.......................... Indexation of the PPL income limit................................... 81

43.......................... The indexation factor........................................................ 82

44.......................... Rounding off indexed amounts......................................... 83

Division 5—The Australian residency test                                                      84

45.......................... When a person satisfies the Australian residency test....... 84

46.......................... Effect of absence from Australia on Australian residency test 84

Division 6—Primary carer                                                                                      87

47.......................... When a person is the primary carer of a child................. 87

Division 7—Return to work                                                                                    88

48.......................... When a person returns to work........................................ 88

49.......................... When paid work is for a permissible purpose.................. 88

50.......................... Performing paid work on a keeping in touch day.............. 88

Part 2‑4—Claims for parental leave pay                                                               90

Division 1—Guide to this Part                                                                               90

51.......................... Guide to this Part.............................................................. 90

Division 2—Claims for parental leave pay                                                     91

52.......................... Who can claim.................................................................. 91

53.......................... Types of claims................................................................. 91

54.......................... Who can make a primary claim, secondary claim or tertiary claim           91

55.......................... When a claim is effective.................................................. 92

56.......................... Requirements of the claim................................................. 93

57.......................... Nominated start date......................................................... 93

57A....................... Specification in claim of flexible PPL days for a child etc. 94

58.......................... Expected date of birth and expected day of primary care.. 95

59.......................... Tax file number statement................................................. 95

60.......................... When to claim................................................................... 96

61.......................... Claim may be withdrawn or varied................................... 97

Chapter 3—Payment of parental leave pay                                    98

Part 3‑1—Instalments of parental leave pay                                                       98

Division 1—Guide to this Part                                                                               98

62.......................... Guide to this Part.............................................................. 98

Division 2—Instalments of parental leave pay                                             99

63.......................... Instalments of parental leave pay...................................... 99

64.......................... A person’s instalment period and the payday for an instalment               99

65.......................... The amount of an instalment........................................... 100

66.......................... Protection of instalment.................................................. 102

67.......................... Deductions authorised by person.................................... 102

68.......................... Deductions for PAYG withholding................................ 103

69.......................... Deductions relating to child support............................... 103

69A....................... Deductions to avoid overpayment of income support payment                103

69B........................ Deductions relating to debt owed to the Commonwealth 104

70.......................... No other deductions........................................................ 104

Part 3‑2—Payment of instalments by employer                                              105

Division 1—Guide to this Part                                                                             105

71.......................... Guide to this Part............................................................ 105

Division 2—Payment of instalments by employer                                     106

72.......................... When an employer pays instalments............................... 106

73.......................... When an employer has been paid enough to fund an instalment              108

74.......................... Method of payment of instalment payable by employer.. 108

Division 3—PPL funding amounts                                                                     109

75.......................... Payment of PPL funding amounts.................................. 109

76.......................... Rules affecting the amount of a PPL funding amount..... 109

77.......................... Notice requirements relating to PPL funding amounts.... 110

79.......................... Protection of PPL funding amounts................................ 111

Division 4—Obligations of employer relating to paying instalments 112

80.......................... Giving person record of payment................................... 112

81.......................... Keeping records.............................................................. 112

82.......................... Notifying Secretary if certain events happen................... 112

Part 3‑3—Payment of instalments by Secretary                                             115

Division 1—Guide to this Part                                                                             115

83.......................... Guide to this Part............................................................ 115

Division 2—Payment of instalments by Secretary                                    116

84.......................... When the Secretary pays instalments.............................. 116

85.......................... Payment of arrears—employer determination reviewed or revoked before coming into force 118

86.......................... Payment of arrears—employer determination revoked after coming into force        119

87.......................... Payment of arrears—extending PPL period or continuous flexible period after review           120

88.......................... Method of payment of instalment payable by Secretary.. 120

89.......................... Giving person record of payment................................... 120

Part 3‑4—General rules relevant to paying instalments                             122

Division 1—Guide to this Part                                                                             122

90.......................... Guide to this Part............................................................ 122

Division 2—General rules relevant to paying instalments                   123

91.......................... Effect of the Secretary or employer becoming required to pay instalments after start of PPL period       123

92.......................... Effect of extending PPL period after review................... 123

92A....................... Effect of extending a person’s continuous flexible period after review    124

93.......................... Effect on instalment periods of employer determination coming into force after review          124

94.......................... Effect on instalment periods of revocation etc................. 125

95.......................... Paying instalment on payday for later instalment—no later instalment     125

96.......................... Paying instalment on particular day—complying with obligation            126

97.......................... Effect of garnishee etc. order.......................................... 126

98.......................... Exemption from operation of workers’ compensation and accident compensation laws          127

99.......................... Period receiving parental leave pay is not a period of paid leave              127

99A....................... Payment of paid parental leave does not affect other employer obligations              127

Part 3‑5—Employer determinations                                                                       128

Division 1—Guide to this Part                                                                             128

100........................ Guide to this Part............................................................ 128

Division 2—Making employer determinations                                            129

101........................ Making employer determinations.................................... 129

102........................ Secretary must give notice of employer determination.... 132

103........................ Employer must respond to notice of employer determination.. 133

104........................ Requirements for an acceptance notice............................ 134

105........................ Giving bank account and pay cycle information etc. after review             135

106........................ Effect of decision on review that parental leave pay is payable                136

Division 3—When an employer determination is in force                    137

107........................ When an employer determination comes into force......... 137

108........................ Revocation of an employer determination....................... 138

Division 4—Election by employer to pay instalments                             141

109........................ Election by employer to pay instalments......................... 141

110........................ Employer may withdraw an election............................... 141

111........................ Secretary may cancel an election..................................... 141

112........................ When an election is in force............................................ 142

Division 5—Notice of decisions                                                                           143

113........................ Notice of outcome of a payability determination............. 143

114........................ Notice of varying, setting aside etc. payability determination 143

115........................ Notice of other decisions................................................ 144

Chapter 3A—Dad and partner pay                                                       145

Part 3A‑1—Key provisions                                                                                          145

Division 1—Guide to this Part                                                                             145

115AA.................. Guide to this Part............................................................ 145

Division 2—When dad and partner pay is payable to a person        146

115AB................... A determination must be made for dad and partner pay to be payable to a person   146

115AC................... For the determination to be made, the person must be eligible 146

115AD.................. For the determination to be made, the person must claim 146

115AE................... The determination must specify the person’s DAPP period 146

Part 3A‑2—Determinations about whether dad and partner pay is payable to a person             148

Division 1—Guide to this Part                                                                             148

115BA................... Guide to this Part............................................................ 148

Division 2—Determinations about whether dad and partner pay is payable to a person           149

115BB................... Determination on a claim for dad and partner pay........... 149

Division 3—When the Secretary cannot make a determination that dad and partner pay is payable 151

115BC................... The child’s birth has not been verified............................ 151

115BD................... The child was born before 1 January 2013..................... 151

115BE................... Multiple births................................................................ 151

115BF................... Dad and partner pay is already payable to the person etc. 151

Division 4—General provisions applying to determinations about whether dad and partner pay is payable                                                                                                   153

115BG................... Assumptions when making the determination................ 153

115BH................... When the determination is in force.................................. 153

115BJ.................... Notice of the determination............................................. 153

115BK................... Revoking the determination on request........................... 153

Division 5—Initial eligibility determinations about dad and partner pay            155

115BL................... Initial eligibility determinations....................................... 155

115BM.................. Assumptions when making the initial eligibility determination                155

115BN................... When the initial eligibility determination comes into force 155

115BP................... Notice of the initial eligibility determination.................... 155

Part 3A‑3—Eligibility for dad and partner pay                                              156

Division 1—Guide to this Part                                                                             156

115CA................... Guide to this Part............................................................ 156

Division 2—When a DAPP claimant is eligible for dad and partner pay             158

115CB................... When a DAPP claimant is eligible for dad and partner pay 158

115CBA................ Newly arrived resident’s waiting period......................... 160

Division 3—Applying the work test to claimants for dad and partner pay         164

115CC................... When a DAPP claimant satisfies the work test............... 164

115CD................... The work test period....................................................... 164

115CE................... Premature birth............................................................... 164

115CF................... DAPP claimant who is already eligible for parental leave pay 164

Division 4—Applying the income test to claimants for dad and partner pay     165

115CG................... When a DAPP claimant satisfies the income test............ 165

115CH................... The reference income year.............................................. 165

115CJ.................... The relevant PPL income limit........................................ 165

Division 5—Applying the Australian residency test to claimants for dad and partner pay       166

115CK................... When a DAPP claimant satisfies the Australian residency test                166

Division 6—Caring for a child                                                                             167

115CL................... When a DAPP claimant is caring for a child.................. 167

Division 7—Not working                                                                                        168

115CM.................. When a DAPP claimant is not working.......................... 168

Part 3A‑4—Claims for dad and partner pay                                                    169

Division 1—Guide to this Part                                                                             169

115DA.................. Guide to this Part............................................................ 169

Division 2—Claims for dad and partner pay                                               170

115DB................... Who can claim................................................................ 170

115DC................... Form of claim................................................................. 170

115DD.................. Who can make a claim for dad and partner pay............... 170

115DE................... When a claim is effective................................................ 170

115DF................... Requirements of the claim............................................... 171

115DG.................. Nominated start date....................................................... 171

115DH.................. Expected or actual date of birth....................................... 171

115DJ.................... Tax file number statement............................................... 172

115DK................... When to claim................................................................. 172

115DL................... Claim may be withdrawn or varied................................. 172

Part 3A‑5—Payment of dad and partner pay                                                  173

Division 1—Guide to this Part                                                                             173

115EA................... Guide to this Part............................................................ 173

Division 2—Payment of dad and partner pay                                             174

115EB................... Payment of dad and partner pay...................................... 174

115EC................... Amount of dad and partner pay...................................... 174

115ED................... Method of payment of dad and partner pay.................... 174

115EE.................... Giving person record of payment................................... 174

115EF.................... Effect of extending DAPP period after review............... 175

115EG................... Protection of payment..................................................... 175

115EH................... Deductions for PAYG withholding................................ 175

115EI..................... Deductions to avoid overpayment of income support payment                175

115EJ.................... No other deductions........................................................ 176

115EK................... Effect of garnishee etc. order.......................................... 176

115EL.................... Exemption from operation of workers’ compensation and accident compensation laws          177

115EM.................. DAPP period is not a period of paid leave...................... 177

Chapter 4—Compliance and enforcement                                     179

Part 4‑1—Information gathering                                                                             179

Division 1—Guide to this Part                                                                             179

116........................ Guide to this Part............................................................ 179

Division 2—Information gathering                                                                   180

Subdivision A—Gathering information from any person                           180

116A..................... Reasonable belief needed to require information or documents                180

117........................ General power to obtain information.............................. 180

118........................ Power to obtain information from a person who owes a debt to the Commonwealth              181

119........................ Obtaining information about a person who owes a debt to the Commonwealth       182

120........................ Written notice of requirement.......................................... 182

121........................ Relationship with other laws........................................... 183

122........................ Offence—failure to comply with requirement................. 184

122A..................... Self‑incrimination........................................................... 184

122B...................... Use of information in investigations etc.......................... 185

Subdivision B—Gathering information relating to tax file numbers       185

123........................ Secretary may require Commissioner of Taxation to provide tax file numbers etc.  185

124........................ Purposes for which tax file numbers may be used.......... 185

Subdivision C—Obligation to notify of change of circumstances             186

125........................ Obligation to notify of change of circumstances............. 186

Division 3—Confidentiality                                                                                   188

126........................ Operation of Division..................................................... 188

127........................ Obtaining and using protected information..................... 188

128........................ Disclosing personal information..................................... 189

129........................ Offence—unauthorised access to protected information. 190

130........................ Offence—unauthorised use of protected information..... 190

130A..................... Disclosure of information by AAT members—threat to life, health or welfare        191

131........................ Offence—soliciting disclosure of protected information. 191

132........................ Offence—offering to supply protected information........ 192

Division 4—Offences against Parts 7.3 and 7.4 of the Criminal Code   193

133........................ Repayment of instalment of parental leave pay, PPL funding amount or dad and partner pay 193

134........................ Penalty where person convicted of more than one offence 193

135........................ Joining of charges........................................................... 194

136........................ Particulars of each offence.............................................. 194

137........................ Trial of joined charges.................................................... 194

138........................ Evidentiary effect of Secretary’s certificate..................... 194

139........................ Enforcement of court certificate as judgment.................. 195

Part 4‑2—Compliance                                                                                                     196

Division 1—Guide to this Part                                                                             196

140........................ Guide to this Part............................................................ 196

Division 2—Referring matters to the Fair Work Ombudsman         197

141........................ Functions of the Fair Work Ombudsman....................... 197

142........................ Exercise of compliance powers....................................... 197

143........................ Referring matters to the Fair Work Ombudsman............ 198

144........................ Fair Work Ombudsman to notify of outcome of investigation 198

Division 3—Civil penalty orders                                                                        199

146........................ Civil penalty provisions.................................................. 199

147........................ Civil penalty orders......................................................... 200

156........................ Requirement for person to assist in applications for civil penalty orders  201

Division 4—Compliance notices                                                                          203

157........................ Giving a compliance notice............................................. 203

158........................ Fair Work Ombudsman to notify of outcome of compliance notice         204

Division 5—Infringement notices                                                                       205

159........................ Infringement notices....................................................... 205

Part 4‑3—Debt recovery                                                                                                209

Division 1—Guide to this Part                                                                             209

164........................ Guide to this Part............................................................ 209

Division 2—Main debts recoverable under this Act                                211

165........................ Debts due to the Commonwealth.................................... 211

166........................ Parental leave pay instalment debts—instalments paid by employer        211

167........................ Parental leave pay instalment debts—instalments paid by the Secretary   212

168........................ PPL funding amount debts—amounts not paid as parental leave pay instalments    213

168A..................... Dad and partner pay debts.............................................. 214

169........................ Wrong person receives parental leave pay instalment, PPL funding amount or dad and partner pay       215

170........................ Joint and several liability for debts arising because of false and misleading statements           215

171........................ Debts under the Data‑matching Program (Assistance and Tax) Act 1990              216

Division 3—Parental leave pay recoverable by employees from employers      217

172........................ PPL funding amount debts—debts owing by employers to employees   217

Division 4—Debt notices and interest on debts                                           218

173........................ Notices in respect of debt................................................ 218

174........................ Interest charge—no debt payment arrangement in effect. 219

175........................ Interest charge—failure to comply with or termination of debt payment arrangement              220

176........................ Other rules for interest charge......................................... 222

177........................ What is the interest charge rate?.................................... 222

178........................ Exemption from interest charge—general....................... 223

179........................ Exemption from interest charge—Secretary’s determination 224

180........................ Guidelines on interest charge provisions........................ 225

Division 5—How the Commonwealth can recover debts                      226

181........................ Debts to which Division 5 applies.................................. 226

182........................ How to recover debts...................................................... 226

183........................ Legal proceedings........................................................... 227

184........................ Garnishee notices—general............................................ 227

185........................ Garnishee notices—amounts paid in compliance............ 228

186........................ Garnishee notices—debt for failure to comply with notice 229

187........................ Garnishee notices—offence for non‑compliance............ 229

188........................ Garnishee notices—relationship with other laws............ 230

190........................ Payment of debts by arrangement................................... 230

190A..................... Secretary may determine amounts to be deducted from instalments payable to debtor             231

191........................ Deductions from instalments payable to another person. 231

192........................ Recovery from an ADI................................................... 232

192A..................... No time limit on debt recovery action............................. 233

Division 6—Writing off debts                                                                               234

193........................ When debts can be written off........................................ 234

Division 7—Waiver of debts                                                                                 236

194........................ Waiver of debts—general............................................... 236

195........................ Waiver of debts—administrative error............................ 236

196........................ Waiver of debts—arising from offence........................... 237

197........................ Waiver of debts—small debts......................................... 237

198........................ Waiver of debts—settlement of civil actions................... 237

199........................ Waiver of debts—special circumstances......................... 239

200........................ Waiver of debts—determined classes............................. 239

Division 7A—Departure prohibition orders                                                241

Subdivision A—Secretary may make departure prohibition orders        241

200A..................... Secretary may make departure prohibition orders........... 241

Subdivision B—Departure from Australia of debtors prohibited             242

200B...................... Departure from Australia of debtors prohibited.............. 242

Subdivision C—Other rules for departure prohibition orders                   242

200C...................... Notification requirements for departure prohibition orders 242

200D..................... Operation of departure prohibition order........................ 243

200E...................... Revocation and variation of departure prohibition orders 243

200F...................... Notification requirements for revocations and variations 244

Subdivision D—Departure authorisation certificates                                   245

200G..................... Application for departure authorisation certificate........... 245

200H..................... When Secretary must issue departure authorisation certificate 245

200J....................... Security for person’s return to Australia......................... 246

200K...................... What departure authorisation certificate must authorise.. 246

200L...................... Notification requirements for departure authorisation certificates             247

200M..................... Notification requirements for substituted days................ 247

Subdivision E—Appeals and review in relation to departure prohibition orders and departure authorisation certificates                                                                                  248

200N..................... Appeals to courts against making of departure prohibition orders           248

200P...................... Jurisdiction of courts...................................................... 248

200Q..................... Orders of court on appeal............................................... 248

200R...................... Review of decisions........................................................ 248

Subdivision F—Enforcement                                                                              249

200S...................... Powers of officers of Customs and members of the Australian Federal Police        249

200T...................... Privilege against self‑incrimination................................. 250

200U..................... Production of authority to depart.................................... 250

Subdivision G—Interpretation                                                                           251

200V..................... Interpretation—departure from Australia for foreign country  251

200W..................... Meaning of Australia...................................................... 251

Division 8—Miscellaneous                                                                                     252

201........................ Overseas application of debts......................................... 252

201A..................... Debts arising from civil penalty orders........................... 252

Chapter 5—Review of decisions                                                                 253

Part 5‑1—Internal review of decisions                                                                  253

Division 1—Guide to this Part                                                                             253

202........................ Guide to this Part............................................................ 253

Division 2—Internal review of decisions                                                        254

203........................ Internal review—own‑initiative review by Secretary...... 254

204........................ Internal review—own‑initiative review and tribunal review 254

205........................ Internal review—review following application............... 255

206........................ Internal review—application for review of claimant decision.. 255

207........................ Internal review—application for review of employer determination decision           256

208........................ Internal review—application for review of employer funding amount decision       258

209........................ Internal review—withdrawal of application.................... 259

210........................ Internal review—when decision made on review comes into force          259

211........................ Internal review—notice of decision on review of claimant decision         259

212........................ Internal review—notice of decision relating to employer 261

Part 5‑2—AAT first review of certain decisions                                             262

Division 1—Guide to this Part                                                                             262

213........................ Guide to this Part............................................................ 262

Division 2—AAT first review of claimant decisions                                263

215........................ Application of this Division............................................ 263

216........................ AAT first review of claimant decision—application for review               264

Division 3—AAT first review of employer decisions                               265

223........................ Application of this Division............................................ 265

224........................ AAT first review of employer decision—application for review             265

Division 4—Other matters relating to AAT first reviews                    267

224A..................... Person who made the decision........................................ 267

225........................ Operation and implementation of decision under AAT first review         267

226........................ Variation of original decision after application is made for AAT first review          267

227........................ Procedure on receipt of application for AAT first review 268

228........................ AAT summons power for AAT first review.................. 268

229........................ Secretary to provide further information for AAT first review                268

230........................ AAT’s power to obtain information for AAT first review 268

231........................ AAT may require Secretary to obtain information for AAT first review 269

232........................ Hearing of AAT first review in private........................... 269

233........................ Costs of AAT first review.............................................. 270

234........................ When AAT decision on AAT first review comes into force 270

235........................ Notification of decisions and reasons for AAT first review 271

Part 5‑3—AAT second review of claimant decisions                                   273

Division 1—Guide to this Part                                                                             273

236........................ Guide to this Part............................................................ 273

Division 2—Applications for AAT second review                                     274

237........................ Applications for AAT second review............................. 274

Division 3—Matters relating to AAT second review                              275

238........................ Application of this Division............................................ 275

240........................ Parties to an AAT second review................................... 275

241........................ Operation and implementation of the AAT decision on AAT second review          275

242........................ Variation of original decision after application is made for AAT second review     276

243........................ Failure of party to appear................................................ 276

Part 5‑4—Other matters relating to review                                                        277

Division 1—Guide to this Part                                                                             277

270........................ Guide to this Part............................................................ 277

Division 2—Other matters relating to review                                             278

271........................ Authorised review officers............................................. 278

272........................ Review body may determine events to have happened, or not to have happened     278

273........................ Certain income test determinations not to be changed on review              278

273A..................... Settlement of proceedings before the AAT..................... 279

Chapter 6—Miscellaneous                                                                                280

Part 6‑1—How this Act applies in particular circumstances                   280

Division 1—Guide to this Part                                                                             280

274........................ Guide to this Part............................................................ 280

Division 2—How this Act applies to an adopted child                            281

275........................ How this Act applies to an adopted child........................ 281

Division 3—How this Act applies to claims made in exceptional circumstances and other cases           283

276........................ How this Act applies to claims made in exceptional circumstances          283

277........................ Primary carers when a child is stillborn or dies.............. 283

Division 3A—How this Act applies to claims for dad and partner pay made in prescribed circumstances                                                                                                                    285

277A..................... How this Act applies to claims for dad and partner pay made in prescribed circumstances     285

Division 4—How this Act applies to Commonwealth employment  287

278........................ How this Act applies to Commonwealth employment.... 287

Division 5—Loss of parental leave pay or dad and partner pay for persons on security grounds        288

278A..................... Simplified outline of this Division.................................. 288

278B...................... Loss of parental leave pay or dad and partner pay for persons on security grounds                288

278C...................... Security notice from Home Affairs Minister.................. 289

278D..................... Notice from Foreign Affairs Minister............................. 290

278F...................... Copy of security notice to be given to Secretaries........... 291

278G..................... Period security notice is in force..................................... 291

278GA.................. Annual review of security notice.................................... 291

278H..................... Revoking a security notice.............................................. 291

278J....................... Notices may contain personal information...................... 292

278K...................... Decisions under Division not decisions of officers........ 292

278L...................... Notices not legislative instruments.................................. 292

Part 6‑2—Nominees                                                                                                          293

Division 1—Guide to this Part                                                                             293

279........................ Guide to this Part............................................................ 293

Division 2—Appointment of nominees                                                             294

280........................ Appointment of payment nominee.................................. 294

281........................ Appointment of correspondence nominee....................... 294

282........................ Provisions relating to appointments................................ 294

283........................ Suspension and cancellation of nominee appointments... 295

Division 3—Payment to payment nominee                                                    297

284........................ Payment of instalments to payment nominee.................. 297

284A..................... Payment of dad and partner pay to payment nominee..... 297

Division 4—Functions and responsibilities of nominees                         299

285........................ Actions of correspondence nominee on behalf of principal 299

286........................ Giving of notices to correspondence nominee................ 300

287........................ Compliance by correspondence nominee........................ 301

288........................ Nominee to inform Department of matters affecting ability to act as nominee          303

289........................ Statement by payment nominee regarding disposal of money  304

Division 5—Other matters relating to nominees                                       306

290........................ Protection of principal against liability for actions of nominee 306

291........................ Protection of nominee against criminal liability............... 306

292........................ Duty of nominee to principal.......................................... 306

293........................ Saving of Secretary’s powers of revocation................... 307

294........................ Saving of Secretary’s powers to give notices to principal 307

295........................ Notification of nominee where notice given to principal. 307

296........................ Right of nominee to attend with principal....................... 307

Part 6‑3—Other matters                                                                                                308

Division 1—Guide to this Part                                                                             308

297........................ Guide to this Part............................................................ 308

Division 2—The Paid Parental Leave Rules                                                309

298........................ The PPL rules................................................................. 309

299........................ Extension of Act to persons who are not employees and employers        309

Division 3—Jurisdiction of courts                                                                     310

300........................ Jurisdiction of Federal Court.......................................... 310

301........................ Jurisdiction of Federal Circuit Court............................... 310

Division 4—Other matters                                                                                     311

302........................ General administration.................................................... 311

303........................ Delegation....................................................................... 311

304........................ Decisions to be in writing............................................... 312

305........................ Secretary may arrange for use of computer programs to make decisions 312

306........................ Notice of decisions......................................................... 312

307........................ Appropriation................................................................. 313

307A..................... Review of the operation of this Act................................ 313

308........................ Regulations..................................................................... 314

Endnotes                                                                                                                                  315

Endnote 1—About the endnotes                                                                          315

Endnote 2—Abbreviation key                                                                              317

Endnote 3—Legislation history                                                                           318

Endnote 4—Amendment history                                                                         324


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

Chapter 1Introduction

Part 1‑1Introduction

Division 1Preliminary

1  Short title

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

2  Commencement

                   This Act commences on 1 October 2010.

3  Act binds Crown

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

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

3AA  Norfolk Island

                   This Act extends to Norfolk Island.

Division 1AObjects of this Act

3A  Objects of this Act

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

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

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

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

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

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

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

                     (c)  encourage women to continue to participate in the workforce; and

                     (d)  provide those carers with greater flexibility to balance work and family life.

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

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

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

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

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

Division 2Guide to this Act

4  Guide to this Act

Overview

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

Parental leave pay is payable to a person for a child for a particular period, which is called the person’s PPL period for the child. That period may be a maximum of 12 weeks long. Parental leave pay is also payable to the person for a flexible PPL day for the child. The number of flexible PPL days for the child for which parental leave pay can be paid cannot exceed 30.

Parental leave pay is paid in instalments at the daily national minimum wage amount for the following days:

       (a)     a week day that falls within the person’s PPL period for the child;

      (b)     a day that is a flexible PPL day for the child and for which parental leave pay is payable to the person.

Parental leave pay is paid by either the person’s employer or the Secretary.

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

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

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

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

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

The Secretary cannot make that determination if the person is not eligible for parental leave pay. Part 2‑3 has the rules about eligibility.

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

There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one. The primary claim will often be the only claim that is made.

Chapter 3—Payment of parental leave pay

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

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

Part 3‑2 sets out when a person’s employer must pay instalments to the person. An employer is required to pay an instalment to a person in relation to a child if:

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

      (b)     the instalment is payable in relation to either a day that falls within the person’s PPL period for the child or a flexible PPL day for the child that falls within the person’s continuous flexible period for the child; and

       (c)     the employer has been paid enough by the Secretary to fund the instalment.

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

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

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

Chapter 3A—Dad and partner pay

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

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

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

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

(b)   be caring for the child; and

(c)   not be working.

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

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

Chapter 4—Compliance and enforcement

Chapter 4 deals with compliance and enforcement.

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

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

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

Chapter 5—Administrative review of decisions

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

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

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

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

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

Chapter 6—Miscellaneous

Chapter 6 has miscellaneous provisions.

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

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

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

Part 1‑2Definitions

Division 1Guide to this Part

5  Guide to this Part

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

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

Division 2The Dictionary

6  The Dictionary

                   In this Act:

AAT means the Administrative Appeals Tribunal.

AAT Act means the Administrative Appeals Tribunal Act 1975.

AAT first review:

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

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

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

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

AAT second review: see subsection 237(1).

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

acceptance notice: see section 103.

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

adjusted taxable income: see section 38.

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

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

Australian‑based employee means an employee:

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

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

Australian government employer means:

                     (a)  the Commonwealth; or

                     (b)  a State; or

                     (c)  a Territory; or

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

                     (e)  a body corporate:

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

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

Australian residency test: see sections 45 and 46.

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

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

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

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

bank account includes an account held with an ADI.

bank account information: see subsection 104(2).

birth verification form: see subsection 18(4).

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

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

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

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

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

civil penalty provision has the same meaning as in the Regulatory Powers Act.

claim means:

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

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

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

claimant decision: see section 206.

claimant’s work cessation day: see paragraph 33(2A)(c).

Commonwealth agency means any of the following:

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

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

compliance notice: see subsection 157(3).

conditional eligibility determination means a determination of a kind mentioned in paragraph 13(4)(b), 14(4)(b), 14(7)(b), 15(2)(b), 15(6)(b), 16(5)(b), 17A(4)(b) or 17B(5)(b).

continuous flexible period: see subsections 6A(2) and (4).

controls an entity: see subsection 35(4).

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

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

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

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

DAPP period: see subsection 115AE(1).

debt payment arrangement: see section 190.

decision has the same meaning as in the AAT Act.

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

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

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

effective claim means:

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

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

eligible:

                     (a)  for parental leave pay in relation to the maximum PPL period for a child—see section 31; or

                    (aa)  for parental leave pay on a flexible PPL day for a child—see section 31AA; or

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

employee has its ordinary meaning and:

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

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

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

employer determination: see section 101.

employer determination decision: see section 207.

employer funding amount decision: see section 208.

employer notice means the later of any one or more of the following notices given to an employer:

                     (a)  a notice under section 102;

                     (b)  a notice under section 113;

                     (c)  a notice under section 114.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

entity means any of the following:

                     (a)  a natural person;

                     (b)  a body corporate;

                     (c)  a body politic;

                     (d)  a partnership;

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

                      (f)  a trust.

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

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

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

                     (c)  subsection 54(3) (which deals with tertiary claims).

expected PPL period of a person for a child means the period the Secretary expects to specify as the person’s PPL period for the child if the Secretary were to make a payability determination under section 13, 14, 15 or 16 that parental leave pay is payable to the person in relation to the child.

Fair Work Act means the Fair Work Act 2009.

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

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

farm household allowance has the same meaning as in the Farm Household Support Act 2014.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

financial institution means:

                     (a)  an ADI; or

                     (b)  the Reserve Bank of Australia; or

                     (c)  a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

flexible PPL day: see subsection 11D(1).

flexible PPL period: see subsection 11D(2).

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

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

garnishee notice: see section 184.

has a continuous PPL period: see subsections 6A(1) and (3).

has not previously satisfied the work and income tests: a person has not previously satisfied the work and income tests in relation to a child if both of the following apply:

                     (a)  no payability determination is in force that parental leave pay is payable to the person in relation to the child;

                     (b)  no conditional eligibility determination is in force that relates to the person and child.

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

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

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

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

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

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

income test: see sections 37 and 115CG.

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

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

indexation day: see subsection 42(1).

indexation factor: see subsection 43(1).

indexed amount: see subsection 42(2).

initial eligibility determination:

                     (a)  for parental leave pay in relation to the maximum PPL period for a child—see section 26; or

                    (aa)  for parental leave pay for a flexible PPL day for a child—see section 26A; or

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

insolvent: a person is insolvent if:

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

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

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

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

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

instalment means an instalment of parental leave pay.

instalment period for a person: see section 64.

interest charge rate: see section 177.

jobkeeper payment: see subsection 34(4).

jobkeeper payment period: see subsection 34(3).

keeping in touch day: see section 50.

law enforcement officer means:

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

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

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

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

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

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

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

maximum PPL period: see subsection 11(3).

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

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

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

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

nominated start date:

                     (a)  for parental leave pay in relation to the maximum PPL period for a child—see subsection 57(1); or

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

nominee means a correspondence nominee or a payment nominee.

not working: see section 115CM.

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

original debt: see section 184.

original debtor: see section 184.

paid enough to fund an instalment: see section 73.

paid work: see section 35.

parent:

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

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

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

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

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

payability determination means:

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

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

pay cycle information: see subsection 104(3).

payday for an instalment: see section 64.

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

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

permanent visa has the same meaning as in the Migration Act 1958.

permissible break: see subsection 36(1).

permissible purpose: see section 49.

PPL is short for paid parental leave.

PPL agency means:

                     (a)  the Department; or

                     (b)  the Human Services Department.

PPL agency representative means:

                     (a)  for the Department—the Secretary; or

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

PPL day: see paragraph 63(3)(a).

PPL funding amount: see subsection 75(1).

PPL income limit: see section 41.

PPL period: see subsection 11(1).

PPL requirement: see subsection 287(6).

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

primary carer: see section 47.

primary claim: see subsection 53(2).

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

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

protected information means:

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

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

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

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

provisional indexed amount: see section 42.

qualifying period: see section 32.

qualifying work: see section 34.

reference income year:

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

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

reference period:

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

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

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

relevant PPL income limit:

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

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

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

returns to work: see section 48.

saved amount:

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

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

secondary claim: see subsection 53(3).

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

Secretary means the Secretary of the Department.

security notice means a notice under section 278C.

Social Security Act means the Social Security Act 1991.

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

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

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

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

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

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

                     (b)  who has not breathed since delivery; and

                     (c)  whose heart has not beaten since delivery.

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

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

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

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

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

tertiary claim: see subsection 53(4).

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

this Act includes the PPL rules and the regulations.

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

verifies a child’s birth: see section 18.

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

vocational placement means a placement that is:

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

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

                     (c)  authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.

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

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

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

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

work test period:

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

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

6A  When a person has a continuous PPL period and the person’s continuous flexible period

Payability determination in force under section 17A, 17B or 17C

             (1)  A person has a continuous PPL period for a child if:

                     (a)  one or more payability determinations that parental leave pay is payable to the person for a period (the relevant period) of one or more flexible PPL days for the child are in force under section 17A, 17B or 17C; and

                     (b)  the relevant period starts on the first week day that occurs after the person’s PPL period for the child ends; and

                     (c)  the relevant period only consists of consecutive flexible PPL days for the child that are week days.

             (2)  If a person has a continuous PPL period for a child under subsection (1), the person’s continuous flexible period is the period that:

                     (a)  starts on the first day of the relevant period referred to in that subsection; and

                     (b)  ends on the earlier of the following days:

                              (i)  the last day of that relevant period;

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

Initial eligibility determination in force under section 26A

             (3)  A person has a continuous PPL period for a child if:

                     (a)  one or more initial eligibility determinations for the person for a period (the relevant period) of one or more flexible PPL days for the child are in force under section 26A; and

                     (b)  the relevant period starts on the first week day that occurs after the person’s expected PPL period for the child ends; and

                     (c)  the relevant period only consists of consecutive flexible PPL days for the child that are week days.

             (4)  If a person has a continuous PPL period for a child under subsection (3), the person’s continuous flexible period is the period that:

                     (a)  starts on the first day of the relevant period referred to in that subsection; and

                     (b)  ends on the earlier of the following days:

                              (i)  the last day of that relevant period;

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

Chapter 2When parental leave pay is payable to a person

Part 2‑1Key provisions

Division 1Guide to this Part

7  Guide to this Part

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

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

The Secretary cannot make that determination if the person has not made a claim for parental leave pay. Part 2‑4 has the rules about claims. There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one. The primary claim will often be the only claim that is made.

If the Secretary makes a determination that parental leave pay is payable to a person for a child in relation to the maximum PPL period for the child, parental leave pay is payable to the person for the particular period specified in the determination. This period is the person’s PPL period for the child which may be a maximum of 12 weeks long. A person’s PPL period for a child may be the full 12 weeks or a lesser period (e.g. where the person is not eligible for parental leave pay for that full period).

If a secondary or tertiary claim is made in relation to the maximum PPL period for the child, that claim will be for the part of the maximum 12 week period (or lesser period) in which parental leave pay was not payable to the primary claimant for the child.

If the Secretary makes a determination that parental leave pay is payable to a person for one or more flexible PPL days for a child of the person, parental leave pay is payable for the particular days specified in the determination. The number of flexible PPL days for the child for which parental leave pay is payable cannot exceed 30.

The Secretary may only make a determination that parental leave pay is payable to a secondary claimant for one or more flexible PPL days for a child if the primary claimant for the child has given permission for secondary claims to be made.

The person’s employer or the Secretary will pay instalments of parental leave pay that are payable to a person (see Chapter 3 for the rules about the payment of parental leave pay).

Division 2When parental leave pay is payable to a person for the person’s PPL period

8  A determination must be made for parental leave pay to be payable to a person for the person’s PPL period

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

Note:          See Division 2 of Part 2‑2 for the rules about when the Secretary can make such a determination.

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

                   The Secretary cannot make a determination under section 13, 14, 15, 16 or 17 that parental leave pay is payable to a person for a child for a period unless the person was or will be eligible for parental leave pay during the period.

Note:          See Part 2‑3 for the rules about when a person is eligible for parental leave pay for a child on a day that is not a flexible PPL day for the child.

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

                   The Secretary cannot make a determination under section 13, 14, 15, 16 or 17 that parental leave pay is payable to a person for a child for a period unless the person has made:

                     (a)  an effective primary claim for parental leave pay in relation to the maximum PPL period for the child (in which case the person is the primary claimant); or

                     (b)  an effective secondary claim for parental leave pay in relation to the maximum PPL period for the child (in which case the person is the secondary claimant); or

                     (c)  an effective tertiary claim for parental leave pay in relation to the maximum PPL period for the child (in which case the person is the tertiary claimant).

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

11  The determination must specify the person’s PPL period

             (1)  If the Secretary makes a determination under section 13, 14, 15, 16 or 17 that parental leave pay is payable to a person for a child, the Secretary must specify, in the determination, the period for which parental leave pay is payable to the person. That period is the person’s PPL period for the child.

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

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

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

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

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

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

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

                              (i)  the day the child was born;

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

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

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

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

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

                              (i)  the day the claim is made;

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

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

                     (a)  the day that is 83 days after the maximum PPL period start day (which is 12 weeks from (and including) that start day);

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

Division 3When parental leave pay for a flexible PPL day for a child is payable to a person

11A  A determination must be made for parental leave pay for a flexible PPL day for a child to be payable to a person

                   Parental leave pay is payable to a person for a flexible PPL day for a child if a determination of the Secretary that parental leave pay is payable to the person for that day is in force under section 17A, 17B or 17C.

Note:          See Division 2A of Part 2‑2 for the rules about when the Secretary can make such a determination.

11B  For a determination to be made, the person must be eligible

                   The Secretary cannot make a determination under section 17A, 17B or 17C that parental leave pay is payable to a person for a flexible PPL day for a child unless the person was or will be eligible for parental leave pay on that day.

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

11C  For a determination to be made, the person must claim

                   The Secretary cannot make a determination under section 17A, 17B or 17C that parental leave pay is payable to a person for a flexible PPL day for a child unless the person has made:

                     (a)  an effective primary claim for parental leave pay for that day (in which case the person is the primary claimant); or

                     (b)  an effective secondary claim for parental leave pay for that day (in which case the person is the secondary claimant); or

                     (c)  an effective tertiary claim for parental leave pay for that day (in which case the person is the tertiary claimant).

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

11D  Flexible PPL day and flexible PPL period

             (1)  A day is a flexible PPL day for a child if the day occurs in the flexible PPL period for the child.

             (2)  The flexible PPL period for a child is the period that:

                     (a)  starts on:

                              (i)  if the only payability determination that is in force for a claimant for the child is a payability determination under section 13 or 15—the first day after the PPL period specified in that determination ends; or

                             (ii)  if 2 or more payability determinations under section 13, 14, 15, 16 or 17 are in force for 2 or more claimants for the child—the first day after whichever PPL period specified in those determinations ends the latest; or

                            (iii)  if neither subparagraph (i) nor (ii) of this paragraph applies and only one initial eligibility determination under section 26 is in force for a claimant for the child—the first day after the claimant’s expected PPL period for the child ends; or

                            (iv)  if neither subparagraphs (i) nor (ii) of this paragraph applies and 2 initial eligibility determinations under section 26 are in force for 2 claimants for the child—the first day after whichever of those claimants’ expected PPL period for the child ends the latest; or

                             (v)  otherwise—the day the child is born; and

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

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

Division 1Guide to this Part

12  Guide to this Part

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

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

Division 2A has the rules that apply to the Secretary when making a payability determination in relation to whether parental leave pay is payable to a person for a flexible PPL day for a child of the person. Different rules apply depending on the type of claim. For a secondary claim, the primary claimant for the child must have given permission for such claims to be made.

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

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

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

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

13  Determination on a primary claim made alone

When a claim is to be determined under this section

             (1)  If:

                     (a)  a primary claimant has made an effective primary claim for parental leave pay in relation to the maximum PPL period for a child; and

                     (b)  another person has not made an effective secondary claim for parental leave pay in relation to that period at the same time;

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

When parental leave pay is payable to primary claimant

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

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

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

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

Primary claimant’s PPL period for the child

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

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

                     (b)  ends on:

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

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

When parental leave pay is not payable to primary claimant

             (4)  If the Secretary is not satisfied of the matter in subsection (2), the Secretary must:

                     (a)  determine that parental leave pay in relation to the maximum PPL period for the child is not payable to the primary claimant; and

                     (b)  if the Secretary is satisfied that the primary claimant satisfies the work test and income test on the day the determination is made—determine that the primary claimant is conditionally eligible for parental leave pay for a flexible PPL day for the child.

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

When a claim is to be determined under this section

             (1)  If:

                     (a)  a primary claimant has made an effective primary claim for parental leave pay in relation to the maximum PPL period for a child; and

                     (b)  a secondary claimant has made an effective secondary claim for parental leave pay in relation to that period at the same time; and

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

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

When parental leave pay is payable to primary claimant

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

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

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

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

Primary claimant’s PPL period for the child

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

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

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

When parental leave pay is not payable to primary claimant

             (4)  If the Secretary is not satisfied of the matter in subsection (2), the Secretary must:

                     (a)  determine that parental leave pay in relation to the maximum PPL period for the child is not payable to the primary claimant; and

                     (b)  if the Secretary is satisfied that the primary claimant satisfies the work test and income test on the day the determination is made—determine that the primary claimant is conditionally eligible for parental leave pay for a flexible PPL day for the child.

When parental leave pay is payable to secondary claimant

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

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

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

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

Secondary claimant’s PPL period for the child

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

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

                     (b)  ends on:

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

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

When parental leave pay is not payable to secondary claimant

             (7)  If the Secretary is not satisfied of the matters in subsection (5), the Secretary must:

                     (a)  determine that parental leave pay in relation to the maximum PPL period for the child is not payable to the secondary claimant; and

                     (b)  if the Secretary is satisfied that the secondary claimant satisfies the work test and income test on the day the determination is made—determine that the secondary claimant is conditionally eligible for parental leave pay for a flexible PPL day for the child.

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

When a claim is to be determined under this section

             (1)  If:

                     (a)  a primary claimant has made an effective primary claim for parental leave pay in relation to the maximum PPL period for a child; and

                     (b)  a secondary claimant has made an effective secondary claim for parental leave pay in relation to that period at the same time; and

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

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

When parental leave pay is not payable to primary claimant

             (2)  The Secretary must:

                     (a)  determine that parental leave pay in relation to the maximum PPL period for the child is not payable to the primary claimant; and

                     (b)  if the Secretary is satisfied that the primary claimant satisfies the work test and income test on the day the determination is made—determine that the primary claimant is conditionally eligible for parental leave pay for a flexible PPL day for the child.

When parental leave pay is payable to secondary claimant

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

                     (a)  the primary claimant:

                              (i)  satisfies the work test and income test on the day the determination is made; and

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

                            (iii)  is, if the day the child was born is in a newly arrived resident’s waiting period the primary claimant is subject to under section 31A, a person to whom subsection 31A(7) or (7A) applies on the day the child was born; and

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

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

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

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

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

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

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

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

                     (c)  both of the following are satisfied:

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

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

Secondary claimant’s PPL period

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

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

                     (b)  ends on:

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

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

When parental leave pay is not payable to secondary claimant

             (6)  If the Secretary is not satisfied of the matters in subsection (3), the Secretary must:

                     (a)  determine that parental leave pay in relation to the maximum PPL period for the child is not payable to the secondary claimant; and

                     (b)  if the Secretary is satisfied that the secondary claimant satisfies the work test and income test on the day the determination is made—determine that the secondary claimant is conditionally eligible for parental leave pay for a flexible PPL day for the child.

16  Determination on a secondary claim made after the primary claim

When a claim is to be determined under this section

             (1)  If:

                     (a)  a primary claimant makes an effective primary claim for parental leave pay in relation to the maximum PPL period for a child; and

                     (b)  a secondary claimant makes an effective secondary claim for parental leave pay in relation to that period at a later time;

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

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

When parental leave pay is payable to secondary claimant

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

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

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

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

Secondary claimant’s PPL period for the child

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

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

                     (b)  ends on:

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

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

When parental leave pay is not payable to secondary claimant

             (5)  If the Secretary is not satisfied of the matters in subsection (3), the Secretary must:

                     (a)  determine that parental leave pay in relation to the maximum PPL period for the child is not payable to the secondary claimant; and

                     (b)  if the Secretary is satisfied that the secondary claimant satisfies the work test and income test on the day the determination is made—determine that the secondary claimant is conditionally eligible for parental leave pay for a flexible PPL day for the child.

17  Determination on a tertiary claim

When a tertiary claim is to be determined under this section

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

When parental leave pay is payable to tertiary claimant

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

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

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

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

Tertiary claimant’s PPL period for the child

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

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

                     (b)  ends on:

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

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

When parental leave pay is not payable to tertiary claimant

             (4)  If the Secretary is not satisfied of the matters in subsection (2), the Secretary must determine that parental leave pay in relation to the maximum PPL period for the child is not payable to the tertiary claimant.

Division 2ADetermination about whether parental leave pay for a flexible PPL day is payable to a person

17A  Determination on a primary claim

When a claim is to be determined under this section

             (1)  If:

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

                     (b)  one or more flexible PPL days for the child (the claimed days) have been specified in the claim;

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

When parental leave pay is payable to the primary claimant for one or more claimed days

             (2)  The Secretary must determine that parental leave pay is payable to the primary claimant for one or more of the claimed days if, when making the determination, the Secretary is satisfied that the primary claimant was or will be eligible for parental leave pay on those days.

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

             (3)  The Secretary must specify in the determination made under subsection (2) the claimed days for which parental leave pay is payable to the primary claimant.

When parental leave pay is not payable to the primary claimant for one or more claimed days

             (4)  If the Secretary is not satisfied of the matter in subsection (2) for one or more of the claimed days, the Secretary must:

                     (a)  determine that parental leave pay is not payable to the primary claimant for those days; and

                     (b)  if:

                              (i)  the primary claimant has not previously satisfied the work and income tests in relation to the child; and

                             (ii)  the Secretary is satisfied that the primary claimant satisfies the work test and income test on the day the determination is made;

                            determine that the primary claimant is conditionally eligible for parental leave pay for other flexible PPL days for the child.

             (5)  The Secretary must specify in the determination made under subsection (4) the claimed days for which parental leave pay is not payable to the primary claimant.

17B  Determination on a secondary claim

When a claim is to be determined under this section

             (1)  If:

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

                     (b)  one or more flexible PPL days for the child (the claimed days) have been specified in the claim;

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

When parental leave pay is payable to a secondary claimant for one or more claimed days

             (2)  The Secretary must determine that parental leave pay is payable to the secondary claimant for one or more of the claimed days if, when making the determination, the Secretary is satisfied that:

                     (a)  the primary claimant for the child has given a permission under section 17D in relation to the child; and

                     (b)  the permission has not been revoked; and

                     (c)  if the determination were made, the number of flexible PPL days for the child for which parental leave pay would be payable to a person other than the primary claimant would not exceed the number of flexible PPL days specified in the permission; and

                     (d)  the primary claimant:

                              (i)  if the primary claimant has not previously satisfied the work and income tests in relation to the child—satisfies the work test and the income test on the day the determination is made; and

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

                            (iii)  is, if the day the child was born is in a newly arrived resident’s waiting period the primary claimant is subject to under section 31A, a person to whom subsection 31A(7) or (7A) applies on that day; and

                     (e)  the secondary claimant was or will be eligible for parental leave pay on those claimed days.

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

             (3)  The Secretary must determine that parental leave pay is payable to the secondary claimant for one or more of the claimed days if, when making the determination, the Secretary is satisfied that:

                     (a)  the primary claimant for the child:

                              (i)  if the primary claimant has not previously satisfied the work and income tests in relation to the child—satisfies the work test and the income test on the day the determination is made; and

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

                            (iii)  is, if the day the child was born is in a newly arrived resident’s waiting period the primary claimant is subject to under section 31A, a person to whom subsection 31A(7) or (7A) applies on that day; and

                     (b)  the secondary claimant:

                              (i)  made the secondary claim in exceptional circumstances; and

                             (ii)  was or will be eligible for parental leave pay on those claimed days.

             (4)  The Secretary must specify in the determination made under subsection (2) or (3) the claimed days for which parental leave pay is payable to the secondary claimant.

When parental leave pay is not payable to secondary claimant for the claimed days

             (5)  If the Secretary is not satisfied of the matters in subsection (2) or (3) for one or more of the claimed days, the Secretary must:

                     (a)  determine that parental leave pay is not payable to the secondary claimant for those days; and

                     (b)  if:

                              (i)  the secondary claimant has not previously satisfied the work and income tests in relation to the child; and

                             (ii)  the Secretary is satisfied that the secondary claimant satisfies the work test and income test on the day the determination is made;

                            determine that the secondary claimant is conditionally eligible for parental leave pay for other flexible PPL days for the child.

             (6)  The Secretary must specify in the determination made under subsection (5) the claimed days for which parental leave pay is not payable to the secondary claimant.

17C  Determination on a tertiary claim

When a claim is to be determined under this section

             (1)  If:

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

                     (b)  one or more flexible PPL days for the child (the claimed days) have been specified in the claim;

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

When parental leave pay is payable to tertiary claimant for the claimed days

             (2)  The Secretary must determine that parental leave pay is payable to the tertiary claimant for one or more of the claimed days if, when making the determination, the Secretary is satisfied that:

                     (a)  a payability determination under subsection 14(5), 15(3), 16(3) or 17B(2) or (3) that parental leave pay for the child is payable to a secondary claimant is in force; and

                     (b)  the tertiary claimant was or will be eligible for parental leave pay on those days.

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

             (3)  The Secretary must specify in the determination made under subsection (2) the claimed days for which parental leave pay is payable to the tertiary claimant.

When parental leave pay is not payable to the tertiary claimant for the claimed days

             (4)  If the Secretary is not satisfied of the matters in subsection (2) for one or more of the claimed days, the Secretary must determine that parental leave pay is not payable to the tertiary claimant for those days.

             (5)  The Secretary must specify in the determination made under subsection (4) the claimed days for which parental leave pay is not payable to the tertiary claimant.

17D  Permission to claim flexible PPL days for a child

Primary claimant may give permission

             (1)  A primary claimant for a child may give permission for persons to make secondary claims for parental leave pay for flexible PPL days for the child.

             (2)  The permission must:

                     (a)  be given to the Secretary in the form approved by the Secretary; and

                     (b)  specify the number of flexible PPL days for the child in relation to which a secondary claim may be made.

Note 1:       The permission does not need to specify the persons who may make a secondary claim.

Note 2:       The permission does not preclude the primary claimant from making a claim for parental leave pay for some or all of the specified number of flexible PPL days for the child.

             (3)  The number of flexible PPL days for the child specified in the permission must not exceed 30.

Revocation of permission

             (4)  If a primary claimant has given a permission under subsection (1), the primary claimant may revoke the permission.

             (5)  The revocation must be given to the Secretary in the form approved by the Secretary.

             (6)  If:

                     (a)  a payability determination that parental leave pay is payable to a person for one or more flexible PPL days for a child is in force; and

                     (b)  the payability determination was made under subsection 17B(2); and

                     (c)  the permission referred to in that subsection is revoked under subsection (4) of this section;

the revocation of the permission does not affect the operation of the payability determination.

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

18  The child’s birth has not been verified

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

Verifying a child’s birth

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

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

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

             (3)  If:

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

                     (b)  the child is not stillborn; and

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

then the person must give the Secretary information showing that:

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

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

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

19  The child was born before 1 January 2011

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

19A  Parental leave pay for flexible PPL days for a child not payable if child born before 1 July 2020

                   The Secretary must not make a payability determination under section 17A, 17B or 17C that parental leave pay is payable to a person for one or more flexible PPL days for a child of the person if the child was born before 1 July 2020.

20  Multiple births

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

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

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

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

             (1)  The Secretary must not make a payability determination under section 13, 14, 15, 16 or 17 that parental leave pay is payable to a person for a child if:

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

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

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

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

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

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

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

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

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

22  Assumptions when making the determination

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

23  When the determination is in force

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

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

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

24  Notice of the determination

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

                     (a)  whether parental leave pay is payable; and

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

                     (c)  if parental leave pay is payable for one or more flexible PPL days for the child—those days; and

                     (d)  if parental leave pay is not payable—whether a conditional eligibility determination has been made; and

                     (e)  that the claimant may apply for review of the determination in the manner set out in Chapter 5.

25  Revoking the determination on request

             (1)  If:

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

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

                     (c)  the request is made:

                              (i)  if the determination relates to parental leave pay payable for the person’s PPL period for the child—before the start of that period; or

                             (ii)  if the determination relates to parental leave pay payable for a flexible PPL day for the child—before the last day of the instalment period for the instalment that relates to that day; and

                     (d)  the request is made in a manner approved by the Secretary;

then the Secretary must revoke the determination.

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

Division 5Initial eligibility determinations about parental leave pay

26  Initial eligibility determinations in relation to the maximum PPL period for a child

Primary claimants

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

                     (a)  the work test; and

                     (b)  the income test; and

                     (c)  the Australian residency test.

Secondary claimants

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

                     (a)  satisfies:

                              (i)  the work test; and

                             (ii)  the income test; and

                            (iii)  the Australian residency test; or

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

26A  Initial eligibility determinations relating to flexible PPL days for a child

                   The Secretary may make a determination (the initial eligibility determination) that a person is initially eligible for parental leave pay for one or more flexible PPL days for a child if:

                     (a)  the flexible PPL days for the child are specified in an effective primary claim or effective secondary claim made by the person; and

                     (b)  if no other initial eligibility determination under this section or section 26 is in force in relation to the person and child—the Secretary is satisfied that the person satisfies the work test and income test when making the determination; and

                     (c)  if the person is a primary claimant—the Secretary is satisfied that the person satisfies the Australian residency test when making the determination.

27  Assumptions when making the initial eligibility determination

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

28  When the initial eligibility determination comes into force

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

29  Notice of the initial eligibility determination

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

Part 2‑3Eligibility for parental leave pay

Division 1Guide to this Part

30  Guide to this Part

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

Division 2 sets out when a person is eligible for parental leave pay. Section 31 sets out when a person is eligible for parental leave pay on a day other than a flexible PPL day for a child. Section 31AA sets out when a person is eligible for parental leave pay on a flexible PPL day for a child.

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

Division 4 has the income test. To satisfy the income test, the person’s income for a particular income year must not be more than the PPL income limit (which is $150,000 until 30 June 2021 and then indexed. A special rule applies if the person is already eligible for dad and partner pay (see subsection 37(2)).

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

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

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

Division 2When a person is eligible for parental leave pay

31  When a person is eligible for parental leave pay on a day other than a flexible PPL day for a child

             (1)  This section sets out when a person is eligible for parental leave pay for a child on a day that is not a flexible PPL day for the child.

Eligible

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

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

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

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

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

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

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

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

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

                     (c)  the person would have been the child’s primary carer on that day had the child not been stillborn or died.

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

                     (a)  if the person is the primary claimant:

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

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

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

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

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

Not eligible—overlap with DAPP period

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

Not eligible—claimant deceased

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

Not eligible—newly arrived resident’s waiting period

             (6)  Despite subsections (2), (3) and (4), a person is not eligible for parental leave pay for a child on a day in a newly arrived resident’s waiting period for the person (see section 31A).

31AA  When a person is eligible for parental leave pay on a flexible PPL day for a child

             (1)  A person is eligible for parental leave pay on a flexible PPL day for a child if:

                     (a)  the person is eligible for parental leave pay on the day under subsection (2), (3), (4) or (5); and

                     (b)  the person is not ineligible for parental leave pay on the day under section 31AB.

             (2)  A person is eligible for parental leave pay on a flexible PPL day for a child if:

                     (a)  the person satisfies the Australian residency test on that day; and

                     (b)  the person is the primary carer of the child on that day; and

                     (c)  on that day:

                              (i)  the person is performing no more than one hour of paid work; or

                             (ii)  the person is performing more than one hour of paid work but the person is performing that work for a permissible purpose; and

                     (d)  if the person has not previously satisfied the work and income tests in relation to the child—the person satisfies the work test and the income test on that day; and

                     (e)  if the person is the primary claimant—the person:

                              (i)  satisfies the Australian residency test on the day the child was born; and

                             (ii)  is, if the day the child was born is in a newly arrived resident’s waiting period that the person is subject to under section 31A, a person to whom subsection 31A(7) or (7A) applies on the day the child was born.

             (3)  A person is eligible for parental leave pay on a flexible PPL day for a child if:

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

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

                     (c)  the person would have been the child’s primary carer on that day had the child not been stillborn or died.

             (4)  A person is eligible for parental leave pay on a flexible PPL day for a child if:

                     (a)  the person is the primary claimant; and

                     (b)  the person satisfies the Australian residency test on both of the following days:

                              (i)  the day the child was born;

                             (ii)  that flexible PPL day; and

                     (c)  if the person has not previously satisfied the work and income tests in relation to the child—the person satisfies the work test and the income test on that flexible PPL day; and

                     (d)  the person is, if the day the child was born is in a newly arrived resident’s waiting period that the person is subject to under section 31A, a person to whom subsection 31A(7) or (7A) applies on the day the child was born; and

                     (e)  on that flexible PPL day, the person satisfies the conditions prescribed by the PPL rules.

             (5)  A person is eligible for parental leave pay on a flexible PPL day for a child if:

                     (a)  the person is a secondary claimant or tertiary claimant; and

                     (b)  on that day, the person satisfies the conditions prescribed by the PPL rules.

31AB  When a person is not eligible for parental leave pay on a flexible PPL day for a child

             (1)  This section sets out when a person (the relevant claimant) is not eligible for parental leave pay on a day that is a flexible PPL day for a child.

When flexible PPL days exceed 30

             (2)  The relevant claimant is not eligible for parental leave pay on a flexible PPL day for the child if, on that day, one or more determinations under section 17A, 17B or 17C that parental leave pay is payable to a person are in force in relation to 30 flexible PPL days for the child.

When payability determination already made in relation to a day

             (3)  The relevant claimant is not eligible for parental leave pay on a flexible PPL day for the child if there is in force a payability determination under section 17A, 17B or 17C that parental leave pay is payable to a person for that child for that day.

Overlap with DAPP period

             (4)  The relevant claimant is not eligible for parental leave pay on a flexible PPL day for the child if:

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

                     (b)  the day is a day that is in that period.

Excess days

             (5)  The relevant claimant is not eligible for parental leave pay on a flexible PPL day for the child if:

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

                     (b)  there is in force a payability determination that parental leave pay is payable to the relevant claimant for the relevant claimant’s PPL period for the child; and

                     (c)  there is in force one or more payability determinations that parental leave pay is payable to the relevant claimant for one or more flexible PPL days for the child (the relevant flexible PPL days); and

                     (d)  the sum of the following number of days is at least 90:

                              (i)  the number of week days in the period mentioned in paragraph (a);

                             (ii)  the number of week days in the period mentioned in paragraph (b);

                            (iii)  the number of relevant flexible PPL days.

Claimant deceased

             (6)  The relevant claimant is not eligible for parental leave pay on a flexible PPL day for the child if, on that day, the relevant claimant is deceased.

Newly arrived resident’s waiting period

             (7)  The relevant claimant is not eligible for parental leave pay on a flexible PPL day for the child if the day is in a newly arrived resident’s waiting period for the relevant claimant (see section 31A).

31A  Newly arrived resident’s waiting period

When person subject to newly arrived resident’s waiting period

             (1)  Subject to this section, a person is subject to a newly arrived resident’s waiting period if, on or after the commencement of this subsection, the person:

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

                     (b)  becomes the holder of a permanent visa, except:

                              (i)  a visa referred to in the regulations under the Migration Act 1958 as a Subclass 117 (Orphan Relative) visa or as a Subclass 837 (Orphan Relative) visa; or

                             (ii)  a visa referred to in the regulations under the Migration Act 1958 as a Subclass 115 (Remaining Relative) visa or as a Subclass 835 (Remaining Relative) visa; or

                            (iii)  a visa of a kind determined in an instrument under subsection (1A).

          (1A)  The Minister may, by legislative instrument, determine a kind of visa for the purposes of subparagraph (1)(b)(iii).

          (1B)  Paragraph (1)(b) does not apply in relation to a person if, at any time before the commencement of this subsection, the person held a visa covered by paragraph (1)(a).

Length of waiting period

             (2)  If:

                     (a)  a person is subject to a newly arrived resident’s waiting period; and

                     (b)  the visa covered by paragraph (1)(a) or (b) is in a class of visas determined by the Minister for the purposes of paragraph 739A(3)(b) of the Social Security Act; and

                     (c)  subsection (3) does not apply;

the waiting period:

                     (d)  starts on the day on which the person applied for that visa; and

                     (e)  ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

             (3)  If:

                     (a)  a person is subject to a newly arrived resident’s waiting period; and

                     (b)  the person has previously held one or more visas in a class of visas determined by the Minister for the purposes of paragraph 739A(4)(b) of the Social Security Act;

the waiting period:

                     (c)  starts on the day on which the person applied for the last of those visas; and

                     (d)  ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

             (4)  If:

                     (a)  a person is subject to a newly arrived resident’s waiting period; and

                     (b)  neither subsection (2) nor (3) applies to the person;

the waiting period starts on the day on which the person:

                     (c)  first entered Australia; or

                     (d)  becomes the holder of a permanent visa;

whichever occurs last, and ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

Exemptions

             (5)  Subsection (1) does not apply to a person if:

                     (a)  on the day before the day (the relevant day) that would be the start of the person’s PPL period for a child if a payability determination were made; and

                     (b)  if the person is the primary claimant and the relevant day is at least 2 days after the day the child was born—on the day the child was born and on each later day (if any) before the day applicable under paragraph (a);

the person was receiving either of the following:

                     (c)  a social security pension or a social security benefit;

                     (d)  farm household allowance.

             (6)  However, subsection (5) does not apply if paragraphs 15(1)(a), (b) and (c) apply in relation to the child. Instead, in this case, subsection (1) of this section does not apply to a person in the circumstances prescribed by the PPL rules.

          (6A)  If:

                     (a)  a person has made an effective claim for parental leave pay for a flexible PPL day for a child; and

                     (b)  the person was receiving any of the following on the day before that flexible PPL day:

                              (i)  a social security pension;

                             (ii)  a social security benefit;

                            (iii)  farm household allowance;

                            (iv)  parental leave pay for the child;

                             (v)  dad and partner pay for the child; and

                     (c)  if the person is the primary claimant—the person was also receiving any of the things mentioned in subparagraphs (b)(i) to (v) on the day the child was born;

then subsection (1) does not apply to the person for the purposes of that claim to the extent it relates to that flexible PPL day.

          (6B)  If:

                     (a)  a payability determination that parental leave pay is payable to a person in relation to a child is in force under section 13, 14, 15, 16 or 17; and

                     (b)  the person has made an effective claim for parental leave pay for a period of one or more flexible PPL days for the child; and

                     (c)  that period:

                              (i)  begins on the first week day that occurs after the person’s PPL period for the child ends; and

                             (ii)  only consists of consecutive flexible PPL days for the child that are week days; and

                     (d)  the person was receiving any of the following on the day before the start of the person’s PPL period for the child:

                              (i)  a social security pension;

                             (ii)  a social security benefit;

                            (iii)  farm household allowance; and

                     (e)  if the person is the primary claimant—the person was also receiving any of the things mentioned in subparagraphs (d)(i) to (iii) on the day the child was born;

then subsection (1) does not apply to the person for the purposes of that claim to the extent that it relates to the period referred to in paragraph (b) of this subsection.

             (7)  Subsections 31(6) and 31AB(7) do not apply to a person in respect of a day in the newly arrived resident’s waiting period for the person if on that day the person holds, or is the former holder of, a visa in a class of visas determined by the Minister for the purposes of subsection 739A(6) of the Social Security Act.

          (7A)  Subsections 31(6) and 31AB(7) do not apply to a person in respect of a day (the assessment day) in the newly arrived resident’s waiting period for the person if:

                     (a)  on the assessment day the person is a refugee or a former refugee; or

                     (b)  the following apply:

                              (i)  the person was a family member of another person at the time the other person became a refugee before the assessment day;

                             (ii)  the person is a family member of that other person on the assessment day or, if that other person has died, the person was a family member of that other person immediately before that other person died; or

                     (c)  the person is an Australian citizen on the assessment day; or

                     (d)  the person is residing in Australia on the assessment day and has held a special category visa on any day before the assessment day.

             (8)  For the purposes of subsection (7A):

                     (a)  family member has the meaning given by subsection 7(6D) of the Social Security Act; and

                     (b)  former refugee has the meaning given by subsection 7(1) of the Social Security Act; and

                     (c)  refugee has the meaning given by subsection 7(6B) of the Social Security Act.

Division 3The work test

32  When a person satisfies the work test

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

Method statement

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

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

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

                   Note:             Qualifying work is defined in section 34.

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

                   Note:             Permissible break is defined in section 36.

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

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

              (b)     that fall within a permissible break.

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

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

(a)    the child was born prematurely; or

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

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

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

Note 3:       If the person performs qualifying work on a day because of paragraph (c) or (d) of the definition of qualifying work in subsection 34(1), and does not also perform qualifying work on that day because of paragraph (e) of that definition, see section 35A to work out the hours of qualifying work the person is taken to have performed on the day.

Note 4:       If the person performs qualifying work on a day because of paragraph (e) of the definition of qualifying work in subsection 34(1), the number of hours of qualifying work the person is taken to have performed on that day is determined in accordance with the PPL rules (see section 35B).

33  The work test period

Primary claimant’s work test period

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

                     (a)  if:

                              (i)  subsection (2A) applies in relation to the primary claimant; and

                             (ii)  the primary claimant would not satisfy the work test if the claimant’s work test period were the work test period under paragraph (b) or (c) of this subsection;

                            the claimant’s work cessation day; or

                     (b)  if:

                              (i)  the child of the primary claimant is born after the expected date of birth of the child; and

                             (ii)  the primary claimant would not satisfy the work test if the claimant’s work test period were the work test period under paragraph (c) of this subsection;

                            the expected date of birth of the child; or

                     (c)  otherwise—the day the child is born.

             (2)  However, for the purposes of making an initial eligibility determination on a primary claim, the work test period for the primary claimant is the 392 days immediately before:

                     (a)  if:

                              (i)  subsection (2A) applies in relation to the primary claimant; and

                             (ii)  the primary claimant would not satisfy the work test if the claimant’s work test period were the work test period under paragraph (b) of this subsection;

                            the claimant’s work cessation day; or

                     (b)  otherwise—the expected date of birth of the child.

          (2A)  This subsection applies in relation to a primary claimant if:

                     (a)  the primary claimant is pregnant with the child or is the birth mother of the child; and

                     (b)  the primary claimant is performing or performed paid work of a particular kind before the birth of the child; and

                     (c)  the primary claimant will cease or ceased performing that kind of work on a particular day (the claimant’s work cessation day) because of hazards connected with that kind of work that pose or posed a risk to the pregnancy; and

                     (d)  any conditions prescribed by the PPL rules are satisfied.

Secondary claimant’s work test period

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

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

34  When a person performs qualifying work

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

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

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

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

                    (ca)  the day is a flexible PPL day for a previous child of the person and parental leave pay was payable to the person on that day;

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

                     (e)  the day is in a jobkeeper payment period for the person.

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

             (3)  A jobkeeper payment period for a person is a period for which:

                     (a)  an employer of the person is entitled to one or more jobkeeper payments for the person; or

                     (b)  the person themselves is entitled to one or more jobkeeper payments.

             (4)  A jobkeeper payment is a payment that:

                     (a)  is payable by the Commonwealth in accordance with rules made under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020; and

                     (b)  is known as jobkeeper payment.

35  When a person performs paid work

People other than self‑employed

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

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

Self‑employed

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

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

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

When a person controls an entity

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

PPL rules about what paid work is

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

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

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

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

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

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

If person performs paid work in previous PPL or DAPP period

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

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

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

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

                     (c)  the hours of work the person would be taken to have performed if subsection (1) applied; and

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

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

If person takes paid leave in previous PPL or DAPP period

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

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

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

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

                     (c)  the hours of work the person would be taken to have performed if subsection (1) applied; and

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

35B  Hours of qualifying work on a day in a jobkeeper payment period

             (1)  For the purposes of step 5 of the method statement in section 32, if a person performs qualifying work on a day because the day is in a jobkeeper payment period for the person, the person is taken to have performed on that day the number of hours of work determined in accordance with the PPL rules.

             (2)  Subsection (1) has effect:

                     (a)  even if the person also performs qualifying work on that day because of paragraph 34(1)(a), (b), (c) or (d); and

                     (b)  despite section 35A.

36  When there is a permissible break

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

Permissible break between 2 qualifying work days

             (2)  If, between a day on which the person performed qualifying work (a qualifying work day) in the work test period and the next qualifying work day, there was at least 1 day but not more than 84 consecutive days on which the person did not perform qualifying work—the day or period of consecutive days between those 2 qualifying work days is a permissible break.

Permissible break at the start of the work test period

             (3)  If:

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

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

                     (c)  the later qualifying work day was no more than 84 consecutive days after the earlier qualifying work day;

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

36A  Premature birth or pregnancy‑related complications or illness

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

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

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

                              (i)  the child was born prematurely;

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

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

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

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

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

Division 4The income test

Subdivision AThe income test

37  When a person satisfies the income test

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

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

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

38  A person’s adjusted taxable income

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

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

39  The reference income year

                   The reference income year for a person is:

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

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

                             (ii)  the day the child was born; and

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

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

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

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

40  The relevant PPL income limit

                   The relevant PPL income limit for a person is:

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

                              (i)  the day the person made the claim;

                             (ii)  the day the child was born; or

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

                              (i)  the day the person made the claim;

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

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

41  The PPL income limit

                   The PPL income limit that applies on a day is:

                     (a)  if the day is on or after 1 October 2010 but before 1 July 2021—$150,000; and

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

Subdivision BIndexation of the PPL income limit

42  Indexation of the PPL income limit

             (1)  The amount of the PPL income limit in section 41 is to be indexed under this Subdivision on 1 July each year (the indexation day) starting on 1 July 2021.

Working out the indexed amount for the PPL income limit

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

Method statement

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

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

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

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

43  The indexation factor

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

                  

where:

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

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

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

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

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

Changes to CPI reference base and publication of substituted index numbers

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

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

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

44  Rounding off indexed amounts

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

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

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

Division 5The Australian residency test

45  When a person satisfies the Australian residency test

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

                     (a)  is an Australian resident; or

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

                     (c)  satisfies subsection (2).

When a person satisfies this subsection

             (2)  A person satisfies this subsection if:

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

                     (b)  either:

                              (i)  the person is in Australia; or

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

46  Effect of absence from Australia on Australian residency test

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

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

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

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

             (2)  If:

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

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

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

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

             (3)  If:

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

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

                     (c)  the person returns to Australia; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Division 6Primary carer

47  When a person is the primary carer of a child

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

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

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

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

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

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

Division 7Return to work

48  When a person returns to work

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

49  When paid work is for a permissible purpose

Permissible purpose for people other than self‑employed

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

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

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

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

Permissible purpose for self‑employed

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

50  Performing paid work on a keeping in touch day

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

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

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

                     (c)  the day is not within:

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

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

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

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

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

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

Part 2‑4Claims for parental leave pay

Division 1Guide to this Part

51  Guide to this Part

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

Division 2 sets out the rules about claims. There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one. However, it will often be the only claim that is made. Section 54 sets out who can make a primary claim, a secondary claim or a tertiary claim.

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

Division 2Claims for parental leave pay

52  Who can claim

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

53  Types of claims

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

                     (a)  a primary claim; and

                     (b)  a secondary claim; and

                     (c)  a tertiary claim.

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

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

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

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

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

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

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

Primary claim

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

                     (a)  the child’s birth mother;

                     (b)  an adoptive parent of the child;

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

Secondary claim

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

                     (a)  the partner of a primary claimant;

                     (b)  a person who:

                              (i)  is a parent of the child; and

                             (ii)  is not the primary claimant;

                     (c)  a partner of a person covered by paragraph (b);

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

Tertiary claim

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

55  When a claim is effective

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

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

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

                   (ba)  section 57A (which deals with the specification in a claim of flexible PPL days for a child etc.);

                     (c)  section 58 (which deals with expected date of birth etc.);

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

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

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

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

56  Requirements of the claim

             (1)  The claim for parental leave pay must:

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

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

                     (c)  be accompanied by any documents required by the Secretary.

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

                     (a)  different types of claims; or

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

57  Nominated start date

             (1)  If the claim is a primary claim for parental leave pay in relation to the maximum PPL period for a child, the claim must state a specific date (the nominated start date) on which the primary claimant wants parental leave pay in relation to that period to start being paid.

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

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

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

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

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

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

57A  Specification in claim of flexible PPL days for a child etc.

             (1)  A claim for parental leave pay for one or more flexible PPL days for a child must specify each of those days.

Note:          A claim that also specifies one or more days that are not flexible PPL days for the child can still be an effective claim.

             (2)  A flexible PPL day for the child specified in the claim must not be a day that is more than 42 days before the day the claim is made.

             (3)  Before a payability determination is made on the claim, the claimant may change a flexible PPL day for the child specified in the claim by notifying the Secretary of the new flexible PPL day for the child.

             (4)  If:

                     (a)  one or more days were specified in the claim for parental leave pay as flexible PPL days for the child at the time the claim was made; and

                     (b)  the Secretary is satisfied that the circumstances prescribed by the PPL rules apply in relation to the claim;

then, before a payability determination is made on the claim, the Secretary may determine, in accordance with any requirements prescribed by the PPL rules, that the claim is to be taken, for the purposes of making the determination, to have specified one or more other flexible PPL days for the child.

58  Expected date of birth and expected day of primary care

Primary claim

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

Secondary claim

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

59  Tax file number statement

             (1)  The claim for parental leave pay must contain the person’s tax file number statement, which is a statement of the kind set out in subsection (2), (3), (4) or (5).

Statement of tax file number

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

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

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

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

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

                     (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 is a statement that the person:

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

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

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

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

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

Statement that a tax file number has previously been provided

             (5)  The fourth kind is a statement that the person’s tax file number has previously been provided with an earlier claim for parental leave pay.

60  When to claim

             (1)  A claim for parental leave pay in relation to the maximum PPL period for a child must be made in the period that:

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

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

             (2)  A claim for parental leave pay for a flexible PPL day for a child must be made in the period that:

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

                     (b)  ends on the day before:

                              (i)  if, before the child’s first birthday, an effective claim for parental leave pay for the child has been made by a primary claimant for the child—the child’s second birthday; or

                             (ii)  otherwise—the child’s first birthday.

61  Claim may be withdrawn or varied

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

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

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

Chapter 3Payment of parental leave pay

Part 3‑1Instalments of parental leave pay

Division 1Guide to this Part

62  Guide to this Part

This Part is about instalments of parental leave pay.

Parental leave pay is payable in instalments for regular periods called instalment periods. An instalment is payable to a person if:

       (a)     one or more days of an instalment period for the person fall within the person’s PPL period for a child; or

      (b)     one or more flexible PPL days for a child of the person fall within an instalment period for the person and parental leave pay is payable to the person for those days.

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

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

Division 2Instalments of parental leave pay

63  Instalments of parental leave pay

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

Who pays an instalment

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

                     (a)  the person’s employer; or

                     (b)  the Secretary.

When an instalment is payable

             (3)  An instalment is payable to a person if either or both of the following apply:

                     (a)  one or more days (the PPL days) of an instalment period for the person fall within the person’s PPL period for a child;

                     (b)  one or more flexible PPL days for a child of the person:

                              (i)  fall within an instalment period for the person; and

                             (ii)  are days for which parental leave pay is payable to the person.

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

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

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

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

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

Instalment to be paid by employer—regular pay period

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

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

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

Instalment to be paid by employer—no regular pay period

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

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

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

Instalment to be paid by Secretary

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

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

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

65  The amount of an instalment

             (1)  The amount of an instalment payable to a person is the sum of the following amounts (if any):

                     (a)  the sum of the daily national minimum wage amounts for each week day, during the instalment period to which the instalment relates, that is also a PPL day for the person;

                     (b)  the sum of the daily national minimum wage amounts for each day, during the instalment period to which the instalment relates, that is:

                              (i)  a flexible PPL day for a child of the person; and

                             (ii)  a day for which parental leave pay is payable to the person.

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

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

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

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

                     (b)  if:

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

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

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

66  Protection of instalment

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

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

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

67  Deductions authorised by person

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

                     (a)  authorised by the person; and

                     (b)  principally for the person’s benefit.

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

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

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

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

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

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

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

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

                     (a)  must be in writing; and

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

                     (c)  may be withdrawn in writing by the person at any time.

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

68  Deductions for PAYG withholding

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

69  Deductions relating to child support

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

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

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

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

69A  Deductions to avoid overpayment of income support payment

                   If:

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

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

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

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

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

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

69B  Deductions relating to debt owed to the Commonwealth

                   The Secretary may deduct an amount from an instalment that is payable to a person if:

                     (a)  a determination under section 190A has been made in relation to the person; and

                     (b)  the deduction is made in accordance with the determination, as made or varied under that section.

70  No other deductions

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

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

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

Part 3‑2Payment of instalments by employer

Division 1Guide to this Part

71  Guide to this Part

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

Under Division 2, an employer is required to pay an instalment to a person if:

       (a)     an employer determination has come into force for the employer and the person (see Part 3‑5); and

      (b)     the instalment is payable in relation to either a day that falls within the person’s PPL period for the child or a flexible PPL day for the child that falls within the person’s continuous flexible period for the child; and

       (c)     the employer has been paid enough by the Secretary to fund the instalment.

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

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

Division 2Payment of instalments by employer

72  When an employer pays instalments

Employer determination in force on day during instalment period

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

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

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

                     (c)  as at the payroll cut‑off for the instalment, the employer has been paid enough to fund the instalment.

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

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

          (1A)  If an employer is required under subsection (1) to pay an instalment to a person in relation to a child of the person, the requirement only applies to the extent that the instalment is payable in relation to:

                     (a)  a day that falls within the person’s PPL period for the child mentioned in the employer notice relating to the employer determination; and

                     (b)  if the person has a continuous PPL period for the child—a flexible PPL day for the child that falls within the continuous flexible period mentioned in the employer notice relating to the employer determination.

Note 1:       The Secretary must pay an instalment to the person to the extent that the instalment is payable in relation to a day that is a flexible PPL day for the child and that does not fall within the person’s continuous flexible period for the child (see subsection 84(2A)).

Note 2:       The Secretary will also be required to pay an instalment to the person if the person’s PPL period, or continuous flexible period, for the child is extended on review after that period has ended (see sections 87, 92 and 92A).

Employer determination comes into force after instalment period

             (2)  If:

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

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

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

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

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

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

Employer determination in force and employer paid enough at later time

             (3)  If:

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

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

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

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

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

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

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

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

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

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

                     (b)  the amount of the instalment;

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

74  Method of payment of instalment payable by employer

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

                     (a)  cash;

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

                     (c)  the use of an electronic funds transfer system to credit an account held by the person.

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

Division 3PPL funding amounts

75  Payment of PPL funding amounts

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

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

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

Note:          Subsections 72(1) and (1A) deal with when an employer is required to pay an instalment to a person.

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

             (3)  If:

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

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

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

76  Rules affecting the amount of a PPL funding amount

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

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

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

                              (i)  the minimum amount;

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

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

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

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

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

77  Notice requirements relating to PPL funding amounts

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

             (2)  The notice must contain the following information:

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

                     (b)  the amount of the PPL funding amount;

                     (c)  any PPL days for the person for which the PPL funding amount has been paid;

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

                   (da)  any flexible PPL days for a child of the person for which the PPL funding amount has been paid;

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

                     (e)  any information prescribed by the PPL rules.

79  Protection of PPL funding amounts

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

Division 4Obligations of employer relating to paying instalments

80  Giving person record of payment

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

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

81  Keeping records

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

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

             (2)  A record must:

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

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

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

82  Notifying Secretary if certain events happen

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

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

                     (b)  the person’s instalment period changes;

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

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

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

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

                              (i)  if the person has a continuous PPL period for the child—the person’s continuous flexible period for the child; or

                             (ii)  otherwise—the person’s PPL period for the child;

                     (g)  the person ceases to be employed by the employer before the end of:

                              (i)  if the person has a continuous PPL period for the child—the person’s continuous flexible period for the child; or

                             (ii)  otherwise—the person’s PPL period for the child;

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

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

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

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

                      (l)  the sum of the PPL funding amounts paid to the employer for the person is more than the sum of the amounts of the instalments that are payable by the employer to the person under this Part.

             (2)  The notice must be given:

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

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

                     (c)  in the manner set out in a written notice given to the employer under subsection (2B).

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

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

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

When obligation to notify of certain events ceases

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

                     (b)  if the employer determination comes into force:

                              (i)  if the employer determination is not revoked—the day after the person’s PPL period for the child ends or, if the person has a continuous PPL period for the child, the day after the person’s continuous flexible period for the child ends; and

                             (ii)  if the employer determination is revoked—the day the revocation comes into force;

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

Part 3‑3Payment of instalments by Secretary

Division 1Guide to this Part

83  Guide to this Part

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

The Secretary is required to pay instalments directly to a person if:

       (a)     an employer determination is never made for the person; or

      (b)     the instalment is payable in relation to a day that is a flexible PPL day for a child of the person and that does not fall within the person’s continuous flexible period for the child (if any).

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

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

Division 2Payment of instalments by Secretary

84  When the Secretary pays instalments

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

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

Employer determination never made

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

Instalments relating to certain flexible PPL days

          (2A)  The Secretary must pay an instalment that is payable to a person to the extent that the instalment is payable in relation to a day that:

                     (a)  is a flexible PPL day for a child of the person; and

                     (b)  if the person has a continuous PPL period for the child—does not fall within the person’s continuous flexible period for the child that is mentioned in an employer notice relating to an employer determination made for the person and the person’s employer.

Note:          The person’s employer must pay an instalment to the person to the extent that the instalment is payable in relation to a flexible PPL day for the child that falls within the person’s continuous flexible period for the child (see subsections 72(1) and (1A)).

Employer determination reviewed

             (3)  The Secretary must pay an instalment that is payable to a person in relation to a child of the person if:

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

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

                     (c)  the instalment relates to an instalment period that:

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

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

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

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

Employer determination revoked

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

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

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

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

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

             (5)  The Secretary must pay an instalment that is payable to a person in relation to a child of the person if:

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

                     (b)  the instalment relates to an instalment period that starts on or after the day (the transfer day) after:

                              (i)  if the person has a continuous PPL period for the child—the last flexible PPL day for the child that falls within the person’s continuous flexible period for the child and for which the Secretary has paid the employer a PPL funding amount for the person; or

                             (ii)  otherwise—the last PPL day for which the Secretary has paid the employer a PPL funding amount for the person in relation to the child; and

                     (c)  the Secretary is satisfied that it is appropriate to pay the instalment; and

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

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

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

             (1)  This section applies if:

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

                     (b)  both of the following apply:

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

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

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

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

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

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

             (1)  This section applies if:

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

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

                     (c)  either:

                              (i)  the Fair Work Ombudsman has notified the Secretary that the employer has not complied with a compliance notice given for a contravention of section 70, 72 or 74 (which deal with unauthorised deductions and payment of instalments by an employer) that relates to the payment of the instalment; or

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

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

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

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

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

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

87  Payment of arrears—extending PPL period or continuous flexible period after review

             (1)  The Secretary must pay a person each instalment that is taken to have become payable to the person under section 92 or 92A.

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

88  Method of payment of instalment payable by Secretary

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

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

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

89  Giving person record of payment

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

Part 3‑4General rules relevant to paying instalments

Division 1Guide to this Part

90  Guide to this Part

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

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

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

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

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

Division 2General rules relevant to paying instalments

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

                   If:

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

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

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

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

92  Effect of extending PPL period after review

                   If:

                     (a)  a person’s PPL period for a child ends; and

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

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

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

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

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

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

92A  Effect of extending a person’s continuous flexible period after review

             (1)  If:

                     (a)  a person’s continuous flexible period for a child ends; and

                     (b)  later, a decision in relation to a payability determination for the person is made that has the effect that the person’s continuous flexible period for the child is extended by an additional period of one or more flexible PPL days for the child; and

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

                              (i)  the person’s continuous flexible period for the child had always been the extended continuous flexible period; and

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

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

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

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

             (1)  This section applies if:

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

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

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

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

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

94  Effect on instalment periods of revocation etc.

             (1)  This section applies if:

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

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

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

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

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

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

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

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

                   If:

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

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

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

96  Paying instalment on particular day—complying with obligation

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

                     (a)  before that day; or

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

97  Effect of garnishee etc. order

             (1)  If:

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

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

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

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

Method statement

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

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

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

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

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

                              (i)  workers’ compensation; or

                             (ii)  accident compensation;

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

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

99  Period receiving parental leave pay is not a period of paid leave

                   Despite any law of the Commonwealth, a State or a Territory, or any industrial instrument (however described), a period of unpaid leave is not to be taken to be a period of paid leave just because a person receives instalments of parental leave pay for all or part of that period.

99A  Payment of paid parental leave does not affect other employer obligations

                   An obligation of an employer to pay a person parental leave pay under this Act is in addition to any other obligation the employer may have in relation to the person, however that other obligation might arise (including, for example, under another law of the Commonwealth, a State or a Territory, or an industrial instrument (however described)).

Part 3‑5Employer determinations

Division 1Guide to this Part

100  Guide to this Part

This Part is about employer determinations.

Under Division 2, the Secretary must make an employer determination if the Secretary is satisfied that certain conditions have been met. Not all of those conditions need to be satisfied for a person if the employer has made an election under Division 4 that applies to the person and the person consents to the employer paying the instalments.

If the Secretary makes an employer determination for a person and the person’s employer, the employer must either:

               (a)     give the Secretary certain information to enable the Secretary to pay the employer PPL funding amounts for the person; or

              (b)     apply for review of the employer determination under Part 5‑1 or 5‑2.

Division 3 is about when an employer determination is in force. It includes rules about revoking employer determinations.

Under Division 4, an employer may elect to pay instalments to one or more employees.

Division 5 provides for the Secretary to give an employer for whom an employer determination has been made notice of certain other decisions under this Act.

Division 2Making employer determinations

101  Making employer determinations

When Secretary must make employer determination

             (1)  The Secretary must make a determination under this section (the employer determination) that a person’s employer is to pay the person instalments if the Secretary is satisfied, when making the determination, that:

                     (a)  either:

                              (i)  a payability determination under section 13, 14, 15, 16 or 17 that parental leave pay is payable to the person for a child is in force; or

                             (ii)  an initial eligibility determination under section 26 for the person in relation to a child is in force; and

                     (b)  instalments are likely, if the determination is made under this section, to be payable by the employer to the person for at least 40 consecutive days that are week days; and

                     (c)  the person has, or will have, been employed by the employer for at least 12 months immediately before:

                              (i)  if the person’s claim was made before the birth of the person’s child—the expected date of birth of the child; or

                             (ii)  if the person’s claim was made after the birth of the person’s child—the later of the expected date of birth of the child and the day the child was born; and

                     (d)  if subparagraph (a)(i) applies in relation to the person—the person is likely to be an Australian‑based employee of the employer during:

                              (i)  if the person has a continuous PPL period for the child under subsection 6A(1)—the person’s PPL period for the child and the person’s continuous flexible period for the child; or

                             (ii)  otherwise—the person’s PPL period for the child; and

                   (da)  if subparagraph (a)(ii) applies in relation to the person—the person is likely to be an Australian‑based employee of the employer during:

                              (i)  if the person has a continuous PPL period for the child under subsection 6A(3)—the person’s expected PPL period for the child and the person’s continuous flexible period for the child; or

                             (ii)  otherwise—the person’s expected PPL period for the child; and

                     (e)  the employer has an ABN; and

                      (f)  if paragraphs (c) to (e) are satisfied in relation to more than one employer of the person (other than because of subsection (2))—the person nominated the employer in the claim as the employer who would be required to pay instalments to the person.

Note:          The 40 consecutive week days mentioned in paragraph (b) may consist of PPL days for the person and flexible PPL days for the child.

Effect of election by employer to pay instalments

             (2)  Paragraphs (1)(b) and (c) do not apply in relation to a person if:

                     (a)  the person’s employer has made an election under section 109 that applies to the person; and

                     (b)  the person has consented in the claim to the employer paying instalments to the person.

When must employer determination be made

             (3)  The Secretary must not make an employer determination for a person and the person’s employer unless:

                     (a)  the Secretary is satisfied as referred to in subsection (1); and

                     (b)  the employer determination is made on or before the day on which the payability determination referred to in paragraph (1)(a) is made.

Note:          See section 106 for when the Secretary may, despite this subsection, make an employer determination for a person and the person’s employer after the day referred to in paragraph (b).

When employer determination must not be made

          (3A)  The Secretary must not make an employer determination for a person and the person’s employer if the person is receiving an income support payment.

When Secretary may decide not to make employer determination

             (4)  Despite subsection (1), the Secretary may decide not to make an employer determination for a person and the person’s employer in relation to a child of the person if the Secretary is satisfied of all or any of the following:

                     (a)  the following period or periods have ended:

                              (i)  if the person has a continuous PPL period for the child—the person’s PPL period for the child and the person’s continuous flexible period for the child;

                             (ii)  otherwise—the person’s PPL period for the child;

                     (b)  the person is a tertiary claimant;

                     (c)  the child in relation to whom parental leave pay is payable to the person is stillborn or has died;

                     (d)  both of the following apply:

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

                             (ii)  the person is a secondary claimant for parental leave pay for the same child;

                     (e)  the employer is not a fit and proper person.

Matters relevant to whether employer is a fit and proper person

             (5)  The Secretary may take into account the following matters in determining whether an employer is a fit and proper person:

                     (a)  whether the employer is insolvent;

                     (b)  whether the employer has, or is alleged to have, contravened a civil penalty provision of this Act;

                     (c)  whether a matter relating to a contravention of section 70 or Part 3‑2 (which deal with unauthorised deductions and payment of instalments by an employer) by the employer has been referred to the Fair Work Ombudsman under section 143;

                     (d)  subject to Part VIIC of the Crimes Act 1914, whether the employer has, or is alleged to have, contravened a provision of an industrial law (within the meaning of the Fair Work Act);

                     (e)  subject to Part VIIC of the Crimes Act 1914, whether the employer has been convicted of an offence against this Act, or a law of the Commonwealth, a State or a Territory that involves:

                              (i)  fraud or dishonesty; or

                             (ii)  the misapplication of money; or

                            (iii)  the management of the affairs of a body (whether or not incorporated);

                    (ea)  whether the employer has, or is alleged to have, contravened a provision of the Employment Act 1988 (Norfolk Island);

                      (f)  any other matter the Secretary considers relevant.

Note:          Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

Secretary may assume state of affairs will not change

             (6)  In deciding whether to make a determination under this section, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.

102  Secretary must give notice of employer determination

             (1)  If the Secretary makes an employer determination for a person and the person’s employer in relation to a child of the person, the Secretary must give the employer and the person a written notice advising them that the determination has been made.

Notice given to person

             (2)  The notice given to the person must contain the name of the employer and any information prescribed by the PPL rules.

Notice given to employer

             (3)  The notice given to the employer must contain the following information:

                     (a)  the name of the person;

                     (b)  whether the Secretary has made a payability determination under section 13, 14, 15, 16 or 17 that parental leave pay is payable to the person for the child;

                     (c)  if the Secretary has made such a payability determination for the person—the person’s PPL period for the child;

                     (d)  if the Secretary has not made such a payability determination for the person—the person’s expected PPL period for the child;

                   (da)  if the person has a continuous PPL period for the child—the person’s continuous flexible period for the child;

                     (e)  in any case—any information prescribed by the PPL rules.

             (4)  The notice given to the employer must also be dated. The date of the notice must be the date the preparation of the notice was completed.

Decision not to make employer determination—notice to person

             (5)  If the Secretary decides not to make an employer determination for a person, the Secretary must give the person a written notice advising the person of that decision. The notice must contain any information prescribed by the PPL rules.

103  Employer must respond to notice of employer determination

                   Within 14 days after the date of the notice given under section 102, the employer must do one of the following:

                     (a)  give the Secretary a written notice (the acceptance notice) that complies with section 104;

                     (b)  apply for a review of the employer determination under Part 5‑1 or 5‑2.

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

104  Requirements for an acceptance notice

Acceptance of obligation to pay instalments

             (1)  The acceptance notice must contain a declaration to the effect that the employer accepts the employer’s obligation to pay instalments to the person.

Bank account information

             (2)  The acceptance notice must contain the following information (bank account information) about an account held and maintained by the employer with a financial institution into which PPL funding amounts can be paid:

                     (a)  the account number;

                     (b)  the BSB number of the account;

                     (c)  the name in which the account is held;

                     (d)  the name of the financial institution.

Pay cycle information

             (3)  The acceptance notice must contain the following information (pay cycle information) for the person:

                     (a)  the person’s instalment period;

                     (b)  the first day of the first instalment period for the person that overlaps with:

                              (i)  if the Secretary has made a payability determination that parental leave pay is payable to the person for a child—the person’s PPL period for the child; or

                             (ii)  if the Secretary has not made such a payability determination for the person for a child—the person’s expected PPL period for the child;

                     (c)  in any case—the payday and the payroll cut‑off for an instalment that would be payable for the instalment period referred to in paragraph (b) of this subsection.

PPL rules may specify additional information

             (4)  The acceptance notice must also contain any information prescribed by the PPL rules.

Employer may confirm bank account information in election

             (5)  Subsection (2) does not apply if:

                     (a)  the person’s employer has made an election under section 109 that applies to the person; and

                     (b)  the acceptance notice contains a declaration to the effect that the employer’s bank account information given in the notice under subsection 109(1) is correct in relation to the person.

105  Giving bank account and pay cycle information etc. after review

             (1)  This section applies if:

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

                     (b)  either of the following events happens:

                              (i)  the employer withdraws the application;

                             (ii)  the employer determination has not been set aside or quashed and is no longer subject to review; and

                     (c)  the following period or periods have not ended:

                              (i)  if the person has a continuous PPL period for the child to which the employer determination relates—the person’s PPL period for the child and the person’s continuous flexible period for the child;

                             (ii)  otherwise—the person’s PPL period for the child.

             (2)  The Secretary must, as soon as practicable after becoming aware that the event referred to in paragraph (1)(b) has happened, give the employer a written notice requiring the employer to give the Secretary a written notice containing the following information:

                     (a)  the employer’s bank account information;

                     (b)  the pay cycle information for the person;

                     (c)  any information prescribed by the PPL rules.

          (2A)  The notice given to the employer must also be dated. The date of the notice must be the date the preparation of the notice was completed.

             (3)  The employer must give the notice to the Secretary within 14 days of the date of the notice given by the Secretary.

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

106  Effect of decision on review that parental leave pay is payable

                   The Secretary may, despite subsection 101(3), make an employer determination for a person and the person’s employer, if:

                     (a)  a decision is made that has the effect that parental leave pay is not payable to the person (whether or not the decision is a payability determination to that effect); and

                     (b)  a later decision is made that has the effect that a payability determination that parental leave pay is payable to the person comes into force; and

                     (c)  the Secretary is satisfied, when making the employer determination, of the matters referred to in the applicable paragraphs of subsection 101(1) in relation to the person and the employer.

Division 3When an employer determination is in force

107  When an employer determination comes into force

             (1)  An employer determination comes into force for a person and the person’s employer as set out in subsection (2) or (3). Otherwise, the employer determination does not come into force at all.

Employer gives acceptance notice

             (2)  If the employer gives the Secretary an acceptance notice for the person in accordance with section 103 or a compliance notice given under section 157, the employer determination comes into force on the day the Secretary receives the acceptance notice.

Employer gives bank account and pay cycle information after review of employer determination

             (3)  If:

                     (a)  the employer gives a notice to the Secretary in accordance with section 105 (which deals with giving bank account and pay cycle information etc. after a review) in relation to the person; and

                     (b)  the following period or periods have not ended by the day the Secretary receives the notice:

                              (i)  if the person has a continuous PPL period for the child to which the employer determination relates—the person’s PPL period for the child and the person’s continuous flexible period for the child;

                             (ii)  otherwise—the person’s PPL period for the child;

the employer determination comes into force on the day the Secretary receives the notice.

             (4)  An employer determination stays in force unless it is revoked.

108  Revocation of an employer determination

When Secretary is required to revoke employer determination

             (1)  The Secretary must revoke an employer determination made for a person and the person’s employer if the Secretary is satisfied of a matter referred to in column 1 of an item in the following table. The revocation comes into force on the day referred to in column 2 of that item:

 

Revocation of employer determination

Item

Column 1

Matter of which Secretary must be satisfied

Column 2

Day revocation comes into force

1

A condition for making the employer determination was not satisfied when the determination was made.

The day of the revocation.

2

The employer has not given an acceptance notice for the person as required by a compliance notice given for a contravention of section 103.

The day of the revocation.

2A

The person is receiving an income support payment.

The day of the revocation.

4

The person has ceased to be employed by the employer.

The day the person ceased to be employed by the employer.

5

The employer is insolvent.

The day the employer became insolvent.

6

The Fair Work Ombudsman has notified the Secretary that the employer has not complied with a compliance notice given for a contravention of section 70, 72 or 74 (which deal with unauthorised deductions and payment of instalments by an employer) that relates to the person.

The day of the revocation.

          (1A)  The Secretary must revoke an employer determination made for a person and the person’s employer in relation to a child of the person if the Secretary is satisfied that a decision (whether or not the decision is a payability determination) has been made that has the effect that parental leave pay is not payable to the person in relation to the maximum PPL period for the child.

          (1B)  The Secretary must revoke an employer determination made for a person and the person’s employer in relation to a child of the person if the Secretary is satisfied that:

                     (a)  the person has a continuous PPL period for the child; and

                     (b)  a decision (whether or not the decision is a payability determination) has been made that has the effect that parental leave pay is not payable to the person for one or more flexible PPL days for the child that fall within the person’s continuous flexible period for the child that is mentioned in the employer notice relating to the employer determination.

          (1C)  The Secretary must revoke an employer determination made for a person and the person’s employer in relation to a child of the person if the Secretary is satisfied that:

                     (a)  the person has a continuous PPL period for the child; and

                     (b)  a payability determination under section 17A, 17B or 17C that paid parental leave is payable to the person for one or more flexible PPL days for the child comes into force; and

                     (c)  those flexible PPL days fall within the person’s continuous flexible period for the child that is mentioned in the employer notice relating to the employer determination; and

                     (d)  those flexible PPL days are not week days.

          (1D)  If the Secretary revokes an employer determination under subsection (1A), (1B) or (1C), the revocation comes into force on the day specified by the Secretary.

When Secretary may revoke employer determination

             (2)  The Secretary may revoke an employer determination made for a person and the person’s employer if the Secretary is satisfied of any of the following:

                     (a)  the employer is not a fit and proper person;

                     (b)  the child in relation to whom parental leave pay is payable to the person is stillborn or has died;

                     (c)  for any other reason, it is appropriate to revoke the employer determination.

             (3)  In determining whether the employer is not a fit and proper person for the purposes of paragraph (2)(a), the Secretary may take into account the matters referred to in paragraphs 101(5)(a) to (f).

             (4)  If the Secretary revokes the employer determination under subsection (2), the revocation comes into force on the day of the revocation.

Notice of revocation to person and employer

             (5)  If the Secretary revokes an employer determination for a person and the person’s employer, the Secretary must give them a written notice advising them of that decision. The notice must contain any information prescribed by the PPL rules.

Notice of revocation to AAT

             (6)  If, when the Secretary revokes an employer determination:

                     (a)  an application has been made for AAT first review in relation to the employer determination; and

                     (b)  the AAT has not determined the review;

the Secretary must give written notice of the revocation to the Registrar of the AAT.

Division 4Election by employer to pay instalments

109  Election by employer to pay instalments

             (1)  An employer may elect to pay instalments to one or more employees of the employer by giving the Secretary a notice in accordance with subsections (2) and (3).

Requirements for elections

             (2)  The notice must:

                     (a)  be in the approved form; and

                     (b)  contain the employer’s bank account information.

             (3)  An election under subsection (1) must be expressed to apply in relation to:

                     (a)  one or more specified employees of the employer; or

                     (b)  one or more specified classes of employee of the employer; or

                     (c)  all employees of the employer.

110  Employer may withdraw an election

             (1)  The employer may, at any time, withdraw an election by notice given to the Secretary in the form approved by the Secretary.

             (2)  However, a withdrawal does not affect an employer determination that has already been made.

111  Secretary may cancel an election

             (1)  The Secretary may cancel an election if the Secretary is satisfied that the employer is not a fit and proper person, and for this purpose may take into account the matters referred to in paragraphs 101(5)(a) to (f).

             (2)  However, a cancellation does not affect an employer determination that has already been made.

Note:          The Secretary may revoke an employer determination that has already been made for the employer and a person under subsection 108(2).

             (3)  If the Secretary cancels an election, the Secretary must give the employer a written notice advising the employer of that decision. The notice must contain any information prescribed by the PPL rules.

112  When an election is in force

                   An election remains in force from the time it is received by the Secretary until one of the following occurs:

                     (a)  if paragraph 109(3)(a) applies—the following period or periods for each specified employee ends:

                              (i)  if the specified employee has a continuous PPL period for the child of the specified employee to which the election relates—the specified employee’s PPL period for the child and the specified employee’s continuous flexible period for the child;

                             (ii)  otherwise—the specified employee’s PPL period for the child to which the election relates;

                     (b)  the Secretary receives notice under section 110 that the election has been withdrawn;

                     (c)  the election is cancelled under section 111.

Division 5Notice of decisions

113  Notice of outcome of a payability determination

             (1)  This section applies if:

                     (a)  the Secretary has made an employer determination for a person and the person’s employer in relation to a child of the person; and

                     (b)  after the employer determination was made, the Secretary makes a payability determination under section 13, 14, 15, 16 or 17 for the person in relation to the child.

             (2)  The Secretary must give the employer a written notice stating:

                     (a)  whether parental leave pay is payable to the person; and

                     (b)  if parental leave pay is payable:

                              (i)  the person’s PPL period for the child; and

                             (ii)  if the person has a continuous PPL period for the child under subsection 6A(1)—the person’s continuous flexible period for the child; and

                     (c)  in any case—any information prescribed by the PPL rules.

Note:          If the Secretary determines that parental leave pay is not payable to the person, the Secretary must revoke the employer determination (see subsections 108(1A) and (1B)).

             (3)  However, the Secretary need not give the notice if the Secretary had previously revoked the employer determination.

114  Notice of varying, setting aside etc. payability determination

             (1)  This section applies if:

                     (a)  the Secretary has made an employer determination for a person and the person’s employer in relation to a child of the person; and

                     (b)  a decision is made to vary, set aside or revoke a payability determination (the original payability determination) that parental leave pay is payable to the person for the child.

             (2)  The Secretary must give the employer a written notice stating:

                     (a)  the effect of the decision referred to in paragraph (1)(b); and

                     (b)  if the effect of the decision is that the person has a different PPL period for the child to that specified in the original payability determination—that different PPL period; and

                   (ba)  if the effect of the decision is that the person has a different continuous flexible period for the child to that mentioned in an earlier employer notice relating to the employer determination—that different continuous flexible period; and

                     (c)  in any case—any other information prescribed by the PPL rules.

             (3)  However, the Secretary need not give the notice if the Secretary had previously revoked the employer determination.

115  Notice of other decisions

                   The PPL rules may provide for the Secretary, in particular circumstances, to give a person a notice containing the information prescribed by the PPL rules in relation to those circumstances, if this Chapter does not otherwise provide for the Secretary to give the person a notice in those circumstances.

Chapter 3ADad and partner pay

Part 3A‑1Key provisions

Division 1Guide to this Part

115AA  Guide to this Part

This Part has the key provisions for this Chapter (which deals with dad and partner pay).

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

The Secretary cannot make that determination if the person has not made a claim for dad and partner pay.

If the Secretary makes a determination that dad and partner pay is payable to a person for a child, the amount of dad and partner pay is worked out by reference to the period for which the person is eligible for dad and partner pay. This period is the person’s DAPP period. The maximum period for which any person may be eligible for dad and partner pay is 2 weeks. A person’s DAPP period may be the full 2 weeks or a lesser period (if the person is not eligible for dad and partner pay for that full period).

Generally, dad and partner pay is paid by the Secretary as a single payment.

Division 2When dad and partner pay is payable to a person

115AB  A determination must be made for dad and partner pay to be payable to a person

                   Dad and partner pay is payable to a person for a child for a period if a determination of the Secretary that dad and partner pay is payable to the person for that period is in force under section 115BB.

Note:          See Part 3A‑2 for the rules about when the Secretary can make a determination that dad and partner pay is, or is not, payable to a person.

115AC  For the determination to be made, the person must be eligible

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

Note:          See Part 3A‑3 for the rules about when a person is eligible for dad and partner pay.

115AD  For the determination to be made, the person must claim

                   The Secretary cannot make a determination that dad and partner pay is payable to a person for a child for a period unless the person has made an effective claim for the child.

Note:          See Part 3A‑4 for the rules about how to make an effective claim.

115AE  The determination must specify the person’s DAPP period

             (1)  If the Secretary makes a determination that dad and partner pay is payable to a person for a child, the Secretary must specify, in the determination, the period for which dad and partner pay is payable to the person. That period is the person’s DAPP period.

Note:          For a DAPP claimant’s DAPP period, see subsection 115BB(3).

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

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

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

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

             (4)  The maximum DAPP period start day for a child is the later of the following days:

                     (a)  the day the child was born;

                     (b)  the claimant’s nominated start date.

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

                     (a)  the day that is 13 days after the maximum DAPP period start day;

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

Part 3A‑2Determinations about whether dad and partner pay is payable to a person

Division 1Guide to this Part

115BA  Guide to this Part

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

Division 2 has the rules that apply to the Secretary when making a payability determination.

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

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

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

Division 2Determinations about whether dad and partner pay is payable to a person

115BB  Determination on a claim for dad and partner pay

When Secretary must make determination

             (1)  If a person has made an effective claim for dad and partner pay for a child, the Secretary must make a determination on the claim.

When dad and partner pay is payable to DAPP claimant

             (2)  The Secretary must determine that dad and partner pay is payable to the DAPP claimant for the claimant’s DAPP period if, when making the determination, the Secretary is satisfied that the DAPP claimant was or will be eligible for dad and partner pay on each day in that period.

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

DAPP claimant’s DAPP period

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

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

                     (b)  ends on:

                              (i)  if the Secretary is satisfied that the DAPP claimant was or will be eligible for dad and partner pay on each day in the child’s maximum DAPP period—the child’s maximum DAPP period end day; or

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

When dad and partner pay is not payable to DAPP claimant

             (4)  The Secretary must determine that dad and partner pay is not payable to the DAPP claimant if the Secretary is not satisfied of the matters in subsection (2).

Division 3When the Secretary cannot make a determination that dad and partner pay is payable

115BC  The child’s birth has not been verified

                   The Secretary must not make a payability determination that dad and partner pay is payable to a person for a child unless a person has verified the child’s birth.

Note:          See subsection 18(2) for how a person verifies a child’s birth.

115BD  The child was born before 1 January 2013

                   The Secretary must not make a payability determination that dad and partner pay is payable to a person for a child if the child was born before 1 January 2013.

115BE  Multiple births

                   The Secretary must not make a payability determination that dad and partner pay is payable to a person for a child if:

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

                     (b)  dad and partner pay is or was payable to the person or another person for the other child.

115BF  Dad and partner pay is already payable to the person etc.

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

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

                     (b)  there is in force a payability determination that dad and partner pay is payable to another person for the child.

             (2)  Paragraph (1)(b) does not apply to a claim that is made in circumstances prescribed by the PPL rules.

Division 4General provisions applying to determinations about whether dad and partner pay is payable

115BG  Assumptions when making the determination

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

115BH  When the determination is in force

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

                     (a)  revoked under section 115BK (which deals with revoking a payability determination on the DAPP claimant’s request); or

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

115BJ  Notice of the determination

                   If the Secretary makes a payability determination about dad and partner pay, the Secretary must give a notice of the determination to the DAPP claimant, stating:

                     (a)  whether dad and partner pay is payable; and

                     (b)  if dad and partner pay is payable—the DAPP claimant’s DAPP period; and

                     (c)  that the DAPP claimant may apply for review of the determination in the manner set out in Chapter 5.

115BK  Revoking the determination on request

             (1)  If:

                     (a)  a payability determination is made that dad and partner pay is payable to a person; and

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

                     (c)  the request is made:

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

                             (ii)  in a manner approved by the Secretary;

then the Secretary must revoke the determination.

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

Division 5Initial eligibility determinations about dad and partner pay

115BL  Initial eligibility determinations

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

                     (a)  satisfies:

                              (i)  the work test; and

                             (ii)  the income test; and

                            (iii)  the Australian residency test; or

                     (b)  will satisfy those tests on the day immediately before the person’s nominated start date.

115BM  Assumptions when making the initial eligibility determination

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

115BN  When the initial eligibility determination comes into force

                   An initial eligibility determination about dad and partner pay comes into force on the day it is made.

115BP  Notice of the initial eligibility determination

                   If the Secretary makes an initial eligibility determination about dad and partner pay, the Secretary must give a notice of the determination to the DAPP claimant.

Part 3A‑3Eligibility for dad and partner pay

Division 1Guide to this Part

115CA  Guide to this Part

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

Division 2 sets out when a person is eligible for dad and partner pay. Subsection 115CB(2) deals with the main case and requires that for a person to be eligible for dad and partner pay for a child, the person must (broadly):

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

      (b)     be caring for the child; and

       (c)     not be working.

There are other eligibility criteria that apply for more unusual cases—see subsection 115CB(3) (which deals with when a child is stillborn or dies) and subsection 115CB(4) (which allows the PPL rules to prescribe eligibility criteria).

The work test is mostly in Division 3 of Part 2‑3, but Division 3 of this Part has provisions relevant to DAPP claimants. To satisfy the work test, a person must have performed enough paid work or taken enough paid leave in a particular period before the person’s nominated start date for dad and partner pay. The person’s PPL period for a previous child, a flexible PPL day for a previous child for which parental leave pay was payable to the person and the person’s DAPP period for a previous child may be taken into account in working out whether the person satisfies the work test for a subsequent child. Special rules apply in the case of premature birth or complications or illness related to the pregnancy (see section 115CE) or if the person is already eligible for parental leave pay (see section 115CF).

The income test is mostly in Division 4 of Part 2‑3, but Division 4 of this Part has provisions relevant to DAPP claimants. To satisfy the income test, the person’s income for a particular income year must not be more than the PPL income limit (which is $150,000 until 30 June 2021 and then indexed). A special rule applies if the person is already eligible for parental leave pay (see subsection 115CG(2)).

The Australian residency test is in Division 5 of Part 2‑3. To satisfy this test, the person must be an Australian resident or be in a special class of visa holder.

Division 6 of this Part sets out when a person is caring for a child. For the main case, a person will not be eligible for dad and partner pay if the person is not caring for the child.

Division 7 of this Part sets out when a person is not working. For the main case, a person will not be eligible for dad and partner pay if the person performs one hour or more of work other than for a purpose of performing the work for a business that the person carries on and that consists of overseeing the business or is an occasional administrative task.

Division 2When a DAPP claimant is eligible for dad and partner pay

115CB  When a DAPP claimant is eligible for dad and partner pay

             (1)  This section sets out when a DAPP claimant is eligible for dad and partner pay for a child on a day.

Eligible

             (2)  First, a DAPP claimant is eligible for dad and partner pay for a child on a day if, on that day:

                     (a)  the claimant satisfies the work test (see Division 3 of Part 2‑3 and sections 115CD, 115CE and 115CF); and

                     (b)  the claimant satisfies the income test (see Division 4 of Part 2‑3 and sections 115CG, 115CH and 115CJ); and

                     (c)  the claimant satisfies the Australian residency test (see Division 5 of Part 2‑3); and

                     (d)  the claimant is caring for the child (see Division 6 of this Part); and

                     (e)  the claimant is not working (see Division 7 of this Part).

             (3)  Second, a DAPP claimant is eligible for dad and partner pay for a child on a day if:

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

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

                     (c)  the claimant would have been caring for the child on that day had the child not been stillborn or died.

             (4)  Third, a DAPP claimant is eligible for dad and partner pay for a child on a day if, on that day, the claimant satisfies:

                     (a)  the work test (see Division 3 of Part 2‑3 and sections 115CD, 115CE and 115CF); and

                     (b)  the income test (see Division 4 of Part 2‑3 and sections 115CG, 115CH and 115CJ); and

                     (c)  the Australian residency test (see Division 5 of Part 2‑3); and

                     (d)  the conditions prescribed by the PPL rules.

Not eligible—overlap with PPL period

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

Not eligible—overlap with flexible PPL day

          (5A)  If there is in force a payability determination that parental leave pay is payable to a person for a flexible PPL day for a child, then, despite subsections (2), (3) and (4), the person is not eligible for dad and partner pay for the child on that same day.

Not eligible—overlap with DAPP period for another child

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

Not eligible—excess days

             (7)  Despite subsections (2), (3) and (4), a DAPP claimant is not eligible for dad and partner pay for a child on a day if:

                     (a)  there is in force a payability determination that parental leave pay is payable to the DAPP claimant for the child for the DAPP claimant’s PPL period for the child; and

                     (b)  there is in force one or more payability determinations that parental leave pay is payable to the DAPP claimant for one or more flexible PPL days for the child; and

                     (c)  the sum of the following number of days is at least 90:

                              (i)  the number of week days in the period mentioned in paragraph (a);

                             (ii)  the number of those flexible PPL days;

                            (iii)  the number of week days in the reference period for the DAPP claimant’s claim for dad and partner pay for the child.

Not eligible—claimant deceased

             (8)  Despite subsections (2), (3) and (4), a DAPP claimant is not eligible for dad and partner pay for a child on a day if, on that day, the claimant is deceased.

Not eligible—newly arrived resident’s waiting period

             (9)  Despite subsections (2), (3) and (4), a DAPP claimant is not eligible for dad and partner pay for a child on a day in a newly arrived resident’s waiting period for the person (see section 115CBA).

115CBA  Newly arrived resident’s waiting period

When person subject to newly arrived resident’s waiting period

             (1)  Subject to this section, a person is subject to a newly arrived resident’s waiting period if, on or after the commencement of this subsection, the person:

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

                     (b)  becomes the holder of a permanent visa, except:

                              (i)  a visa referred to in the regulations under the Migration Act 1958 as a Subclass 117 (Orphan Relative) visa or as a Subclass 837 (Orphan Relative) visa; or

                             (ii)  a visa referred to in the regulations under the Migration Act 1958 as a Subclass 115 (Remaining Relative) visa or as a Subclass 835 (Remaining Relative) visa; or

                            (iii)  a visa of a kind determined in an instrument under subsection (1A).

          (1A)  The Minister may, by legislative instrument, determine a kind of visa for the purposes of subparagraph (1)(b)(iii).

          (1B)  Paragraph (1)(b) does not apply in relation to a person if, at any time before the commencement of this subsection, the person held a visa covered by paragraph (1)(a).

Length of waiting period

             (2)  If:

                     (a)  a person is subject to a newly arrived resident’s waiting period; and

                     (b)  the visa covered by paragraph (1)(a) or (b) is in a class of visas determined by the Minister for the purposes of paragraph 739A(3)(b) of the Social Security Act; and

                     (c)  subsection (3) does not apply;

the waiting period:

                     (d)  starts on the day on which the person applied for that visa; and

                     (e)  ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

             (3)  If:

                     (a)  a person is subject to a newly arrived resident’s waiting period; and

                     (b)  the person has previously held one or more visas in a class of visas determined by the Minister for the purposes of paragraph 739A(4)(b) of the Social Security Act;

the waiting period:

                     (c)  starts on the day on which the person applied for the last of those visas; and

                     (d)  ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

             (4)  If:

                     (a)  a person is subject to a newly arrived resident’s waiting period; and

                     (b)  neither subsection (2) nor (3) applies to the person;

the waiting period starts on the day on which the person:

                     (c)  first entered Australia; or

                     (d)  becomes the holder of a permanent visa;

whichever occurs last, and ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

Exemptions

             (5)  Subsection (1) does not apply to a person if, on the day before the day that would be the start of the person’s DAPP period if a payability determination were made:

                     (a)  the person is receiving a social security pension or a social security benefit; or

                     (b)  the person is receiving farm household allowance.

             (6)  Subsection 115CB(9) does not apply to a person in respect of a day in the newly arrived resident’s waiting period for the person if on that day the person holds, or is the former holder of, a visa in a class of visas determined by the Minister for the purposes of subsection 739A(6) of the Social Security Act.

             (7)  Subsection 115CB(9) does not apply to a person in respect of a day (the assessment day) in the newly arrived resident’s waiting period for the person if:

                     (a)  on the assessment day the person is a refugee or a former refugee; or

                     (b)  the following apply:

                              (i)  the person was a family member of another person at the time the other person became a refugee before the assessment day;

                             (ii)  the person is a family member of that other person on the assessment day or, if that other person has died, the person was a family member of that other person immediately before that other person died; or

                     (c)  the person is an Australian citizen on the assessment day; or

                     (d)  the person is residing in Australia on the assessment day and has held a special category visa on any day before the assessment day.

             (8)  For the purposes of subsection (7):

                     (a)  family member has the meaning given by subsection 7(6D) of the Social Security Act; and

                     (b)  former refugee has the meaning given by subsection 7(1) of the Social Security Act; and

                     (c)  refugee has the meaning given by subsection 7(6B) of the Social Security Act.

Division 3Applying the work test to claimants for dad and partner pay

115CC  When a DAPP claimant satisfies the work test

                   To work out whether a DAPP claimant satisfies the work test on a day in accordance with section 32, use the method statement in section 32 with the work test period in section 115CD.

Note:          Sections 115CE and 115CF in this Division are alternative ways of satisfying the work test for DAPP claimants.

115CD  The work test period

                   For the purposes of satisfying the work test in accordance with section 32, the work test period for a DAPP claimant is the 392 days immediately before the claimant’s nominated start date.

Note:          Sections 115CE and 115CF in this Division are alternative ways of satisfying the work test for DAPP claimants.

115CE  Premature birth

                   A DAPP claimant also satisfies the work test on a day if:

                     (a)  the Secretary is satisfied that the child was born prematurely; and

                     (b)  the Secretary is satisfied that the DAPP claimant would have satisfied the work test on the day in accordance with section 32 if the child had not been born prematurely.

115CF  DAPP claimant who is already eligible for parental leave pay

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

Division 4Applying the income test to claimants for dad and partner pay

115CG  When a DAPP claimant satisfies the income test

             (1)  To work out whether a DAPP claimant satisfies the income test in subsection 37(1) on a day, use the income test in subsection 37(1) with the reference income year in section 115CH and the relevant PPL income limit in section 115CJ.

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

115CH  The reference income year

                   The reference income year for a DAPP claimant is the income year that ended before the earlier of the following days:

                     (a)  the day the DAPP claimant made the claim for dad and partner pay;

                     (b)  the DAPP claimant’s nominated start date.

115CJ  The relevant PPL income limit

                   The relevant PPL income limit for a DAPP claimant is the PPL income limit that applies on the earlier of the following days:

                     (a)  the day the DAPP claimant made the claim for dad and partner pay;

                     (b)  the DAPP claimant’s nominated start date.

Note:          For PPL income limit, see section 41. The PPL income limit may be indexed under Subdivision B of Division 4 of Part 2‑3.

Division 5Applying the Australian residency test to claimants for dad and partner pay

115CK  When a DAPP claimant satisfies the Australian residency test

                   To work out whether a DAPP claimant satisfies the Australian residency test on a day, use the Australian residency test in sections 45 and 46.

Division 6Caring for a child

115CL  When a DAPP claimant is caring for a child

             (1)  A DAPP claimant is caring for a child on a day in the DAPP claimant’s reference period if the child is in the DAPP claimant’s care in that period.

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

             (3)  More than one person may be caring for the same child on any particular day. This does not prevent one of the persons being the primary carer of the child under section 47.

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

Division 7Not working

115CM  When a DAPP claimant is not working

             (1)  A DAPP claimant is not working on a day if neither of the following apply on that day:

                     (a)  the DAPP claimant performs one hour or more of paid work, other than for a purpose that is a permissible purpose under subsection 49(2);

                     (b)  the DAPP claimant is on paid leave.

             (2)  However, the PPL rules may prescribe circumstances in which a DAPP claimant is taken to be not working even though paragraph (1)(a) or (b) applies to the claimant.

Part 3A‑4Claims for dad and partner pay

Division 1Guide to this Part

115DA  Guide to this Part

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

Division 2 sets out the rules about claims. Section 115DD sets out who can make a claim for dad and partner pay.

The Secretary cannot make a payability determination on a claim unless it is an effective claim. To be effective, the claim must be made by the right person and satisfy the requirements in the provisions listed in section 115DE. One of those requirements is that the claim must be in the form, and contain the information, required by the Secretary (see section 115DF). Another requirement is that the claim must be made in the period set out in section 115DK.

Division 2Claims for dad and partner pay

115DB  Who can claim

                   Only a natural person can make a claim for dad and partner pay.

115DC  Form of claim

                   A claim for dad and partner pay must be made in the form approved by the Secretary for claims for dad and partner pay.

115DD  Who can make a claim for dad and partner pay

                   Only the following people can make a claim for dad and partner pay for a child:

                     (a)  the biological father of the child;

                     (b)  the partner of the child’s birth mother;

                     (c)  an adoptive parent of the child;

                     (d)  a person who satisfies circumstances prescribed by the PPL rules.

115DE  When a claim is effective

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

                     (a)  section 115DF (which deals with the form etc. of the claim);

                     (b)  section 115DG (which deals with the nominated start date);

                     (c)  section 115DH (which deals with expected or actual date of birth);

                     (d)  section 115DJ (which deals with tax file number statements);

                     (e)  section 115DK (which deals with when to make the claim).

             (2)  A claim for dad and partner pay is also not effective if it is made by a person who cannot make a claim under section 115DD.

             (3)  A claim for dad and partner pay that is not effective is taken not to have been made.

115DF  Requirements of the claim

                   The claim for dad and partner pay must:

                     (a)  be made in the form approved, and the manner required, by the Secretary for dad and partner pay; and

                     (b)  contain any information required by the Secretary; and

                     (c)  be accompanied by any documents required by the Secretary.

115DG  Nominated start date

             (1)  The claim must state a specific date (the nominated start date) which is the first day of the period for which the claimant wants to be paid dad and partner pay.

             (2)  The nominated start date must be on or after:

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

                     (b)  if the claim is made after the child is born—the child’s actual date of birth.

             (3)  Before a payability determination is made on the claim for dad and partner pay, the claimant may change his or her nominated start date by notifying the Secretary of the new nominated start date.

             (4)  If a payability determination is made that dad and partner pay is payable to the claimant, the claimant may only change his or her nominated start date (the old date) by notifying the Secretary, before the old date, of the new nominated start date.

115DH  Expected or actual date of birth

                   The claim for dad and partner pay for a child must specify the child’s expected date of birth or, if made after the child is born, the child’s actual date of birth.

115DJ  Tax file number statement

                   The claim for dad and partner pay must contain the person’s tax file number statement, which is a statement of the kind set out in subsection 59(2), (3) or (4).

115DK  When to claim

                   A claim for dad and partner pay for a child must be made in the period that:

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

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

115DL  Claim may be withdrawn or varied

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

             (2)  The person may only do so in a manner approved by the Secretary.

             (3)  If a claim is withdrawn, it is taken never to have been made.

Part 3A‑5Payment of dad and partner pay

Division 1Guide to this Part

115EA  Guide to this Part

This Part is about the payment of dad and partner pay.

Generally, dad and partner pay is paid by the Secretary as a single payment.

The amount is worked out by reference to the period for which the person is eligible for dad and partner pay.

Division 2Payment of dad and partner pay

115EB  Payment of dad and partner pay

                   If the Secretary makes a payability determination that dad and partner pay is payable to a person for a child, the Secretary must pay the dad and partner pay to the person as soon as practicable after making the determination (but not before the start of the person’s DAPP period).

115EC  Amount of dad and partner pay

                   The amount of dad and partner pay to be paid to the person is the total of the daily national minimum wage amounts for each week day during the person’s DAPP period.

Note:          See subsection 65(2) for the daily national minimum wage amount for a day.

115ED  Method of payment of dad and partner pay

             (1)  The Secretary must pay dad and partner pay that is payable to a person to the credit of a bank account nominated and maintained by the person.

             (2)  The Secretary may direct that the whole or a part of a payment of dad and partner pay is to be paid in a way different from that provided for by subsection (1). If the Secretary gives the direction, the payment is to be paid in accordance with the direction.

             (3)  A direction made under subsection (2) is not a legislative instrument.

115EE  Giving person record of payment

                   If the Secretary pays dad and partner pay to or in relation to a person, in particular circumstances, the Secretary must give the person the information prescribed by the PPL rules in relation to dad and partner pay paid in those circumstances.

115EF  Effect of extending DAPP period after review

             (1)  If:

                     (a)  the Secretary has made a payability determination that dad and partner pay is payable to a person; and

                     (b)  after the Secretary has paid the dad and partner pay, a decision is made in relation to the payability determination that has the effect that a higher amount of dad and partner pay is payable to the person;

the Secretary must pay the person the difference between the higher amount and the amount already paid to the person as soon as practicable after the decision is made.

             (2)  To avoid doubt, any difference worked out under subsection (1) is also dad and partner pay.

115EG  Protection of payment

             (1)  A payment of dad and partner pay is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.

Note:          Section 115EK (which deals with the effect of a garnishee etc. order) also provides a protection for an account into which dad and partner pay has been paid.

             (2)  Subsection (1) has effect subject to sections 115EH and 115EI.

115EH  Deductions for PAYG withholding

                   The Secretary may deduct an amount from a payment of dad and partner pay to a person if the Secretary is required to withhold the amount under section 12‑110 in Schedule 1 to the Taxation Administration Act 1953.

115EI  Deductions to avoid overpayment of income support payment

                   If:

                     (a)  a payability determination that dad and partner pay is payable to a person is made; and

                     (b)  an amount of dad and partner pay relating to the person’s DAPP period becomes payable to the person by the Secretary on a particular day; and

                     (c)  before that day, the person was paid an amount of income support payment under the social security law or Veterans’ Entitlements Act 1986 for a period (the income support period) that falls within, or overlaps with, the person’s DAPP period; and

                     (d)  the Secretary is satisfied that the amount of income support payment so paid exceeds the amount of income support payment that would have been payable to the person for the income support period under that law or Act had the amount of dad and partner pay been taken into account when working out the amount of income support payment payable to the person for that period under that law or Act;

then the Secretary may deduct from the amount of dad and partner pay an amount equal to the excess.

Note:          A person’s income is taken into account when working out the amount of income support payment that is payable to the person under the social security law or the Veterans’ Entitlements Act 1986. An amount of dad and partner pay is income so payment of such an amount may reduce the amount of income support payment that is payable to the person.

115EJ  No other deductions

                   An amount must not be deducted from a payment of dad and partner pay except in accordance with section 115EH or 115EI. This section applies despite any other law of the Commonwealth, a State or a Territory.

115EK  Effect of garnishee etc. order

             (1)  If:

                     (a)  dad and partner pay has been paid to the credit of an account; and

                     (b)  a court order in the nature of a garnishee order comes into force in relation to the account;

the court order does not apply to the saved amount (if any) in the account.

             (2)  The saved amount is worked out as follows:

Method statement

Step 1.   Work out the total amount of dad and partner pay that has been paid to the credit of the account during the 4 week period immediately before the court order came into force.

Step 2.   Subtract from the step 1 amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount.

115EL  Exemption from operation of workers’ compensation and accident compensation laws

             (1)  The payment of dad and partner pay is not to be taken into account for the purposes of the following provisions or laws:

                     (a)  a provision of a law of the Commonwealth, a State or a Territory, if the provision deals with:

                              (i)  workers’ compensation; or

                             (ii)  accident compensation;

                     (b)  a law, or a provision of a law, prescribed by the PPL rules, to the extent that the law or provision deals with a matter referred to in paragraph (a).

             (2)  The PPL rules may provide that subsection (1) does not apply in relation to a prescribed provision of a law of the Commonwealth, a State or a Territory.

115EM  DAPP period is not a period of paid leave

                   Despite any law of the Commonwealth, a State or a Territory, or any industrial instrument (however described), a period of unpaid leave is not to be taken to be a period of paid leave just because a person receives dad and partner pay for all or part of that period.

Chapter 4Compliance and enforcement

Part 4‑1Information gathering

Division 1Guide to this Part

116  Guide to this Part

This Part allows the Secretary to gather information for the purposes of checking compliance with this Act.

Subdivision A of Division 2 allows the Secretary to require a person to give certain information or produce certain documents that are relevant to this Act.

Subdivision B of Division 2 deals with tax file numbers and the purposes for which tax file numbers may be used.

Subdivision C of Division 2 imposes an obligation on a person to whom instalments of parental leave pay are payable, or to whom dad and partner pay is payable, to notify the Secretary of a change of circumstances.

Division 3 deals with the confidentiality of personal and protected information.

Division 4 contains rules relating to offences against Parts 7.3 and 7.4 of the Criminal Code (which deal with fraudulent conduct and false and misleading statements) in relation to this Act.

Division 2Information gathering

Subdivision AGathering information from any person

116A  Reasonable belief needed to require information or documents

                   The Secretary can only require a person to:

                     (a)  give information; or

                     (b)  produce a document;

under this Subdivision if the Secretary reasonably believes that the person will be able to give the information or produce the document.

117  General power to obtain information

             (1)  The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to one or more of the following:

                     (a)  determining whether a person who has made an effective claim for parental leave pay is or was eligible for parental leave pay, or is or was initially eligible for parental leave pay;

                     (b)  determining whether parental leave pay is or was payable to a person;

                     (c)  determining who should pay instalments of parental leave pay to a person;

                     (d)  ensuring the Secretary can pay instalments of parental leave pay into the bank account of a person to whom instalments of parental leave pay are payable;

                     (e)  determining whether to make an employer determination, or whether an employer determination should have been made;

                      (f)  determining whether PPL funding amounts are or were payable to a person;

                     (g)  ensuring that an employer complies or has complied with its obligations under this Act.

Note:          The agency specified must be a PPL agency (see subsection 120(4)).

             (2)  The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to one or more of the following:

                     (a)  determining whether a person who has made an effective claim for dad and partner pay is or was eligible for dad and partner pay, or is or was initially eligible for dad and partner pay;

                     (b)  determining whether dad and partner pay is or was payable to a person;

                     (c)  ensuring the Secretary can pay dad and partner pay into the bank account of a person to whom dad and partner pay is payable.

             (3)  The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to an inquiry or investigation into a matter mentioned in subsection (1) or (2).

118  Power to obtain information from a person who owes a debt to the Commonwealth

                   The Secretary may require a person who owes a debt to the Commonwealth under or because of this Act:

                     (a)  either to:

                              (i)  give to a specified agency information that is relevant to the person’s financial situation; or

                             (ii)  produce to a specified agency a document that is relevant to the person’s financial situation; and

                     (b)  if the person’s address changes—to inform the specified agency of the new address within 14 days after the change.

Note:          The agency specified must be a PPL agency (see subsection 120(4)).

119  Obtaining information about a person who owes a debt to the Commonwealth

                   The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers the information or document:

                     (a)  would help the specified agency locate another person (the debtor) who owes a debt to the Commonwealth under or because of this Act; or

                     (b)  is relevant to the debtor’s financial situation.

Note:          The agency specified must be a PPL agency (see subsection 120(4)).

120  Written notice of requirement

Notice to be in writing

             (1)  A requirement under this Subdivision must be made by written notice given to the person of whom the requirement is made.

Contents of notice

             (2)  The notice:

                     (a)  may be given personally or by post or in any other manner approved by the Secretary; and

                     (b)  must specify:

                            (ia)  a description of the information or document to which the requirement relates; and

                              (i)  how the person is to give the information or produce the document to which the requirement relates; and

                             (ii)  the period within which the person is to give the information or produce the document; and

                            (iii)  the agency, and the officer (if any), to whom the information is to be given or the document is to be produced; and

                            (iv)  that the notice is given under this section.

Note:          The notice may describe the information or documents by class (see subsection 33(3AB) of the Acts Interpretation Act 1901).

             (3)  For the purposes of subparagraph (2)(b)(ii), the period must not end earlier than 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of this Act, to specify a shorter period.

             (4)  For the purposes of subparagraph (2)(b)(iii), the Secretary must specify a PPL agency.

Requirement to attend interview

             (5)  The notice may require the person to give the information by appearing before a specified officer to answer questions.

             (6)  If the notice requires the person to appear before an officer, the notice must specify:

                     (a)  a time and place at which the person is to appear; and

                     (b)  that the person may be accompanied by a lawyer.

             (7)  For the purposes of subsection (6), the time must be at least 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of this Act, to specify an earlier time.

121  Relationship with other laws

             (1)  Nothing contained in a law of a State or a Territory operates to prevent a person from:

                     (a)  giving information; or

                     (b)  producing a document; or

                     (c)  giving evidence;

that the person is required to give or produce to a specified agency or an officer for the purposes of this Act.

             (2)  This Subdivision does not require a person to give information or produce a document to the extent that in doing so the person would contravene a law of the Commonwealth (other than a law of a Territory).

122  Offence—failure to comply with requirement

             (1)  A person commits an offence if:

                     (a)  the person is required under this Subdivision (other than under paragraph 117(1)(d) or (2)(c) (which deal with information about bank accounts)) to give information or produce a document; and

                     (b)  the person refuses or fails to comply with the requirement.

Penalty:  Imprisonment for 6 months.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

122A  Self‑incrimination

             (1)  A person is not excused from giving information, or producing a document, under this Subdivision on the ground that the information, or production of the document, might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the information given or document produced; and

                     (b)  giving the information or producing the document; and

                     (c)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document;

are not admissible in evidence against the individual in any criminal proceedings, other than:

                     (d)  proceedings for an offence against subsection 122(1); or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Subdivision; or

                      (f)  proceedings for an offence against Division 145 of the Criminal Code.

122B  Use of information in investigations etc.

                   Subject to subsection 122A(2), nothing in this Subdivision prevents information given, or a document produced, under this Subdivision by a person from being used in:

                     (a)  an inquiry or investigation into a matter; or

                     (b)  criminal proceedings.

Subdivision BGathering information relating to tax file numbers

123  Secretary may require Commissioner of Taxation to provide tax file numbers etc.

                   The Secretary may require the Commissioner of Taxation to provide the Secretary with information (including a tax file number) that is:

                     (a)  about a person who has made an effective claim for parental leave pay or dad and partner pay; and

                     (b)  relevant to the claim; and

                     (c)  contained in a TFN declaration lodged with the Commissioner under Division 3 of Part VA of the Income Tax Assessment Act 1936.

124  Purposes for which tax file numbers may be used

             (1)  Subsection (2) applies to the tax file number of a person that is provided to the Secretary:

                     (a)  under a provision of this Act, for the purposes of this Act:

                              (i)  by the person; or

                             (ii)  by the partner of the person; or

                            (iii)  by the Commissioner of Taxation on the authority of the person; or

                     (b)  by the Commissioner of Taxation under section 123.

             (2)  A tax file number provided to the Secretary as referred to in subsection (1) may be used only for the following purposes:

                     (a)  to detect cases in which instalments of parental leave pay have been paid when they should not have been paid;

                     (b)  to verify, in relation to persons who have made effective claims for parental leave pay, the eligibility of those persons for that pay;

                     (c)  to detect cases in which dad and partner pay has been paid when it should not have been paid;

                     (d)  to verify, in relation to persons who have made effective claims for dad and partner pay, the eligibility of those persons for that pay.

Subdivision CObligation to notify of change of circumstances

125  Obligation to notify of change of circumstances

             (1)  A person who has made an effective claim for parental leave pay, in respect of which there is not in force any payability determination that parental leave pay is not payable, must notify the Secretary of the following things:

                     (a)  anything that causes the person to cease to be eligible for parental leave pay on a day;

                     (b)  anything that is likely to have the effect described in paragraph (a).

             (2)  A person who has made an effective claim for dad and partner pay, in respect of which there is not in force any payability determination that dad and partner pay is not payable, must notify the Secretary of the following things:

                     (a)  anything that causes the person to cease to be eligible for dad and partner pay on a day;

                     (b)  anything that is likely to have the effect described in paragraph (a).

             (3)  The person must notify the Secretary, in the manner set out in a written notice given to the person under subsection (5), as soon as practicable after the person becomes aware that the thing has happened or is likely to happen.

             (4)  The Secretary must approve a manner of notification that a person must use when notifying the Secretary of a thing under this section.

             (5)  The Secretary must, by written notice, notify the person of the approved manner of notification.

             (6)  A person commits an offence if:

                     (a)  the person is required to notify the Secretary of a thing under this section; and

                     (b)  the person refuses or fails to comply with the requirement.

Penalty for contravention of this subsection:        Imprisonment for 6 months.

Division 3Confidentiality

126  Operation of Division

             (1)  Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:

                     (a)  the Child Support (Assessment) Act 1989; or

                     (b)  the Child Support (Registration and Collection) Act 1988.

             (2)  The provisions of this Division that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.

127  Obtaining and using protected information

Obtaining protected information

             (1)  A person may obtain protected information if the information is obtained for the purposes of this Act, or the Regulatory Powers Act as that Act applies in relation to this Act.

Using protected information

             (2)  A person may:

                     (a)  make a record of protected information; or

                     (b)  disclose such information to any person; or

                     (c)  otherwise use such information;

if the record, disclosure or use of the information by the person is made:

                     (d)  for the purposes of this Act, or the Regulatory Powers Act as that Act applies in relation to this Act; or

                   (da)  for the purposes of the family assistance law; or

                   (db)  for the purposes of the social security law; or

                   (dc)  for the purposes of the Student Assistance Act 1973; or

                     (e)  for the purposes for which the information was disclosed to the person under section 128; or

                      (f)  with the express or implied authorisation of the person to whom the information relates.

             (3)  A person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person.

128  Disclosing personal information

             (1)  Despite sections 129 to 132, the Secretary may disclose information acquired by an officer in the exercise of the officer’s powers, or the performance of the officer’s duties or functions, under this Act or the Regulatory Powers Act as that Act applies in relation to this Act:

                     (a)  to such persons and for such purposes as the Secretary determines, if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases; or

                     (b)  to an Agency Head for the purposes of that Agency (within the meaning of the Public Service Act 1999), but only if the disclosure of the information is required by a law of the Commonwealth; or

                     (c)  to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or

                     (d)  to the Minister for the purposes of assisting the Minister to consider a complaint or issue in relation to a matter arising under this Act if the Secretary reasonably believes that the disclosure is likely to assist the Minister; or

                     (e)  to an SES employee, or an APS employee, in the Department, for the purposes of briefing, or considering briefing, the Minister if the Secretary reasonably believes the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.

Note:          Information disclosed under this section must also be dealt with in accordance with the Australian Privacy Principles.

             (2)  In giving certificates for the purposes of paragraph (1)(a), the Secretary must act in accordance with guidelines (if any) from time to time in force under subsection (4).

             (3)  In disclosing information under paragraph (1)(b), the Secretary must act in accordance with guidelines (if any) from time to time in force under subsection (4).

             (4)  The Minister may, in the PPL rules, make guidelines for the exercise of either or both of the following:

                     (a)  the Secretary’s power to give certificates for the purposes of paragraph (1)(a);

                     (b)  the Secretary’s power under paragraph (1)(b).

             (5)  If a determination or certificate under paragraph (1)(a) is made or given in writing, the determination or certificate is not a legislative instrument.

             (6)  Despite any other provision of this Part, the Secretary may disclose information of a kind referred to in paragraph (a) or (b) of the definition of protected information in section 6 that relates to a principal to the principal’s payment nominee or correspondence nominee.

129  Offence—unauthorised access to protected information

                   A person commits an offence if:

                     (a)  the person obtains information; and

                     (b)  the person is not authorised under this Act to obtain the information; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years.

130  Offence—unauthorised use of protected information

                   A person commits an offence if:

                     (a)  the person:

                              (i)  makes a record of information; or

                             (ii)  discloses information to any other person; or

                            (iii)  otherwise makes use of information; and

                     (b)  the person is not authorised or required under this Act to make that record, disclosure or use of the information; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years.

130A  Disclosure of information by AAT members—threat to life, health or welfare

                   Despite section 130, an AAT member may disclose information if the information concerns a threat to the life, health or welfare of a person and either of the following applies:

                     (a)  the member believes on reasonable grounds that the disclosure is necessary to prevent or lessen the threat;

                     (b)  there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the member discloses the information for the purpose of preventing, investigating or prosecuting such an offence.

131  Offence—soliciting disclosure of protected information

             (1)  A person commits an offence if:

                     (a)  the person solicits the disclosure of information from an officer or another person; and

                     (b)  the disclosure would be in contravention of this Division; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years.

             (2)  A person may commit an offence under subsection (1) whether or not any protected information is actually disclosed.

132  Offence—offering to supply protected information

             (1)  A person commits an offence if:

                     (a)  the person offers to supply (whether to a particular person or otherwise) information about another person; and

                     (b)  the information is protected information.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and

                     (b)  the information is protected information.

Penalty:  Imprisonment for 2 years.

             (3)  Nothing in subsection (1) or (2) makes an officer acting in the performance or exercise of his or her powers, duties or functions under this Act guilty of an offence.

Division 4Offences against Parts 7.3 and 7.4 of the Criminal Code

133  Repayment of instalment of parental leave pay, PPL funding amount or dad and partner pay

             (1)  If a person is convicted of an offence against Part 7.3 or 7.4 of the Criminal Code in relation to this Act, the court may:

                     (a)  impose a penalty in relation to the offence; and

                     (b)  order the person to pay the Commonwealth an amount equal to any amount:

                              (i)  paid to, or in relation to, the person by way of an instalment of parental leave pay because of the act, failure or omission that constituted the offence; or

                             (ii)  paid to the person by way of a PPL funding amount because of the act, failure or omission that constituted the offence; or

                            (iii)  paid to, or in relation to, the person by way of dad and partner pay because of the act, failure or omission that constituted the offence.

Note:          The Secretary and a court may give a certificate in relation to the amount referred to in paragraph (1)(b) (see sections 138 and 139).

             (2)  Despite anything in this Act or any other law, a person is not to be imprisoned for failing to pay an amount payable to the Commonwealth under paragraph (1)(b).

134  Penalty where person convicted of more than one offence

             (1)  If a person is convicted of more than one offence against Part 7.3 or 7.4 of the Criminal Code in relation to this Act, the court may, if it considers it appropriate, impose one penalty for all the offences.

             (2)  However, a single penalty imposed under subsection (1) must not be more than the sum of the maximum penalties that could be imposed if a separate penalty were imposed for each offence.

135  Joining of charges

                   Charges against the same person for a number of offences against Part 7.3 or 7.4 of the Criminal Code in relation to this Act may be joined in one complaint, information or declaration if those charges:

                     (a)  are founded on the same facts; or

                     (b)  form a series of offences of the same or a similar character; or

                     (c)  are part of a series of offences of the same or a similar character.

136  Particulars of each offence

                   If 2 or more charges are included in the same complaint, information or declaration, particulars of each offence charged are to be set out in a separate paragraph.

137  Trial of joined charges

                   If charges are joined, the charges are to be tried together unless:

                     (a)  the court considers it just that any charge should be tried separately; and

                     (b)  the court makes an order to that effect.

138  Evidentiary effect of Secretary’s certificate

             (1)  For the purposes of paragraph 133(1)(b), a certificate signed by the Secretary is prima facie evidence of the matters specified in the certificate.

             (2)  The certificate may specify:

                     (a)  the person to whom an instalment of parental leave pay, a PPL funding amount or dad and partner pay has been paid because of an act, a failure or an omission for which the person or another person has been convicted of an offence against Part 7.3 or 7.4 of the Criminal Code; and

                     (b)  the amount paid; and

                     (c)  the act, failure or omission that caused the amount to be paid.

139  Enforcement of court certificate as judgment

                   If:

                     (a)  a court makes an order under paragraph 133(1)(b); and

                     (b)  the clerk or other appropriate officer of the court gives a certificate specifying:

                              (i)  the amount ordered to be paid to the Commonwealth; and

                             (ii)  the person by whom the amount is to be paid; and

                     (c)  the certificate is filed in a court (which may be the court that made the order) that has civil jurisdiction to the extent of the amount to be paid;

the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.

Part 4‑2Compliance

Division 1Guide to this Part

140  Guide to this Part

This Part deals with compliance with this Act.

Division 2 allows the Secretary to refer matters to the Fair Work Ombudsman for investigation if the Secretary has reason to believe that an employer has not complied with certain obligations under this Act.

Division 3 deals with civil penalty provisions. These provisions impose obligations on certain persons. Civil penalty orders may be sought under Part 4 of the Regulatory Powers Act in relation to contraventions of the civil penalty provisions of this Act.

Division 4 deals with compliance notices. A compliance notice can be given to a person who has contravened a civil penalty provision, requiring the person to rectify the contravention.

Division 5 deals with infringement notices. An infringement notice may be issued under Part 5 of the Regulatory Powers Act for an alleged contravention of a civil penalty provision of this Act. A person who is given an infringement notice can choose to pay a penalty. If the penalty is not paid, a civil penalty order under Part 4 of the Regulatory Powers Act may be sought in relation to the person.

Division 2Referring matters to the Fair Work Ombudsman

141  Functions of the Fair Work Ombudsman

                   The Fair Work Ombudsman has the following functions:

                     (a)  to inquire into, and investigate, any matter referred to the Fair Work Ombudsman under section 143;

                     (b)  to commence proceedings in a court in relation to a contravention of section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 (which deals with payment of instalments by an employer);

                     (c)  any other function that is incidental to the function referred to in paragraph (a) or (b).

142  Exercise of compliance powers

             (1)  A Fair Work Inspector may exercise compliance powers (within the meaning of the Fair Work Act) (other than a power under section 715 or 716 of that Act) for the purpose of determining whether the following provisions of this Act are being, or have been, complied with:

                     (a)  section 70 (which deals with unauthorised deductions from instalments);

                     (b)  Part 3‑2 (which deals with payment of instalments by an employer).

             (2)  For the purposes of the Fair Work Act:

                     (a)  the purpose referred to in subsection (1) of this section is taken to be a compliance purpose; and

                     (b)  a civil penalty provision under section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 of this Act (which deals with payment of instalments by an employer) is taken to be a civil remedy provision.

143  Referring matters to the Fair Work Ombudsman

             (1)  The Secretary may refer a matter to the Fair Work Ombudsman for investigation if:

                     (a)  the Secretary has reason to believe that an employer has not complied with an obligation under section 70 (which deals with unauthorised deductions from instalments) or Part 3‑2 (which deals with payment of instalments by an employer) in relation to a person; and

                     (b)  the Secretary does not believe that the employer and the person are able to resolve the matter themselves.

             (2)  The Secretary must inform the employer and the person, in writing, if the Secretary refers the matter to the Fair Work Ombudsman.

             (3)  The Secretary must give the Fair Work Ombudsman the following information:

                     (a)  if the contravention is in relation to section 70, 72 or 74:

                              (i)  the day on which the Secretary paid a PPL funding amount to the employer for the person; and

                             (ii)  a copy of the notice given to the employer under section 77 in relation to the PPL funding amount;

                     (b)  in any case—any action taken or information obtained by the Secretary in relation to the matter.

144  Fair Work Ombudsman to notify of outcome of investigation

                   The Fair Work Ombudsman must, as soon as practicable after completing an investigation referred by the Secretary under section 143, notify the Secretary, in writing, of the outcome of the investigation.

Note:          If the Fair Work Ombudsman gives a compliance notice, the Fair Work Ombudsman must also notify the Secretary of the outcome of the compliance notice (see section 158).

Division 3Civil penalty orders

146  Civil penalty provisions

                   A provision referred to in column 1 of an item in the table is a civil penalty provision, and the pecuniary penalty for the civil penalty provision is that specified in column 2 of that item.

 

Civil penalty provisions

Item

Column 1

Civil penalty provision

Column 2

Penalty

1

Subsection 70(2)

60 penalty units

2

Subsection 72(1)

60 penalty units

3

Subsection 72(2)

60 penalty units

4

Subsection 72(3)

60 penalty units

5

Section 74

60 penalty units

6

Section 80

30 penalty units

7

Subsection 81(1)

30 penalty units

8

Subsection 81(2)

30 penalty units

9

Subsection 82(2)

60 penalty units

10

Section 103

60 penalty units

11

Subsection 105(3)

60 penalty units

12

Subsection 157(4) (in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2))

30 penalty units

13

Subsection 157(4) (in relation to a contravention of a compliance notice given in relation to any other civil penalty provision)

60 penalty units

Note:          Under subsection 82(5) of the Regulatory Powers Act the pecuniary penalty imposed must be no more than that specified (or, for a body corporate, no more than 5 times that specified).

147  Civil penalty orders

Enforceable civil penalty provisions

             (1)  Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.

Note:          Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the civil penalty provisions of this Act:

                     (a)  the Secretary;

                     (b)  the Fair Work Ombudsman.

Relevant court

             (3)  For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:

                     (a)  the Federal Court;

                     (b)  the Federal Circuit Court.

Delegation

             (4)  The Secretary may, in writing, delegate the Secretary’s powers and functions under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, to:

                     (a)  the Chief Executive Centrelink; or

                     (b)  the Chief Executive Medicare; or

                     (c)  an SES employee or an acting SES employee.

             (5)  If the Secretary delegates any of the Secretary’s powers or functions under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, to the Chief Executive Centrelink, the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:

                     (a)  an SES employee; nor

                     (b)  an acting SES employee.

             (6)  If the Secretary delegates any of the Secretary’s powers or functions under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, to the Chief Executive Medicare, the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:

                     (a)  an SES employee; nor

                     (b)  an acting SES employee.

Territories of Christmas Island and Cocos (Keeling) Islands

             (7)  Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Liability of Crown

             (8)  To avoid doubt, subsection 3(2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act.

156  Requirement for person to assist in applications for civil penalty orders

             (1)  A person commits an offence if:

                     (a)  the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act; and

                     (b)  the person fails to comply with the request.

Penalty:  10 penalty units.

Note:          This section does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, documents or other things.

             (2)  A request under subsection (1) is not a legislative instrument.

             (3)  The Secretary can request a person to assist under subsection (1) only if:

                     (a)  it appears to the Secretary that the person is unlikely to have:

                              (i)  contravened the civil penalty provision to which the application relates; or

                             (ii)  committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and

                     (b)  the Secretary suspects or believes that the person can give information relevant to the application.

             (4)  The Secretary cannot request a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.

             (5)  The Federal Court or the Federal Circuit Court may order a person to comply with a request under subsection (1) in a specified way. Only the Secretary may apply to the court for an order under this subsection.

             (6)  For the purposes of this section, it does not matter whether the application for the civil penalty order under the Regulatory Powers Act has actually been made.

Division 4Compliance notices

157  Giving a compliance notice

Compliance notice given by Secretary

             (1)  This section applies if the Secretary reasonably believes that a person has contravened one or more of the following provisions:

                     (a)  subsection 82(2) (which deals with notifying the Secretary if certain events happen);

                     (b)  section 103 (which deals with responding to an employer determination);

                     (c)  subsection 105(3) (which deals with giving bank account and pay cycle information etc. after a review).

Compliance notice given by Fair Work Ombudsman

             (2)  This section also applies if the Fair Work Ombudsman reasonably believes that a person has contravened one or more of the following provisions:

                     (a)  subsection 70(2) (which deals with unauthorised deductions from instalments);

                     (b)  subsection 72(1), (2) or (3) (which deals with when an employer pays instalments);

                     (c)  section 74 (which deals with the method of payment of instalments payable by an employer);

                     (d)  section 80 (which deals with giving a person a record of payment);

                     (e)  subsection 81(1) or (2) (which deals with keeping records).

Requirements of a compliance notice

             (3)  The Secretary or the Fair Work Ombudsman may give the person a notice (a compliance notice) requiring the person to do the following within 14 days of the day on which the notice is given:

                     (a)  take the action set out in the notice to rectify the contravention;

                     (b)  produce reasonable evidence of the person’s compliance with the notice.

             (4)  A person must not fail to comply with a compliance notice.

Note:          This subsection is a civil penalty provision (see section 146).

Contents of a compliance notice

             (5)  A compliance notice must also:

                     (a)  set out the name of the person to whom the notice is given; and

                     (b)  set out the name of the person who gave the notice; and

                     (c)  set out brief details of the alleged contravention; and

                     (d)  explain that a failure to comply with the notice may contravene a civil penalty provision; and

                     (e)  set out any other matters prescribed by the PPL rules.

158  Fair Work Ombudsman to notify of outcome of compliance notice

                   If the Fair Work Ombudsman gives a compliance notice to a person, the Fair Work Ombudsman must, as soon as practicable, notify the Secretary, in writing, of the outcome of the compliance notice.

Division 5Infringement notices

159  Infringement notices

Provisions subject to an infringement notice

             (1)  The following civil penalty provisions of this Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

                     (a)  subsection 82(2) (which deals with notifying the Secretary if certain events happen);

                     (b)  section 103 (which deals with responding to an employer determination);

                     (c)  subsection 105(3) (which deals with giving bank account and pay cycle information etc. after a review);

                     (d)  subsection 157(4), in relation to a compliance notice given to a person by the Secretary.

Note:          Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer and relevant chief executive for the provisions mentioned in subsection (1)

             (2)  For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is an infringement officer and the relevant chief executive in relation to the provisions mentioned in subsection (1).

Further provisions subject to an infringement notice

             (3)  The following civil penalty provisions of this Act are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

                     (a)  subsection 70(2) (which deals with unauthorised deductions from instalments);

                     (b)  subsection 72(1), (2) or (3) (which deals with when an employer pays instalments);

                     (c)  section 74 (which deals with the method of payment of instalments payable by an employer);

                     (d)  section 80 (which deals with giving a person a record of a payment);

                     (e)  subsection 81(1) or (2) (which deals with keeping records);

                      (f)  subsection 157(4), in relation to a compliance notice given to a person by the Fair Work Ombudsman.

Infringement officer and relevant chief executive for the provisions mentioned in subsection (3)

             (4)  For the purposes of Part 5 of the Regulatory Powers Act, the Fair Work Ombudsman is an infringement officer and the relevant chief executive in relation to the provisions mentioned in subsection (3).

Time limit for giving an infringement notice

             (5)  Despite subsection 103(2) of the Regulatory Powers Act, an infringement notice given in relation to a failure to comply with a compliance notice under subsection 157(4) must be given within 12 months of the day on which the 14‑day period referred to in subsection 157(3) of this Act ends.

Amount to be stated in infringement notice

             (6)  Despite subsections 104(2) and (3) of the Regulatory Powers Act, the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of that Act in relation to a provision mentioned in subsection (1) or (3) must be:

                     (a)  if the infringement notice is given to a body corporate for a single contravention:

                              (i)  in relation to a contravention of section 80 (which deals with giving a person a record of payments) or subsection 81(1) or (2) (which deals with keeping records)—15 penalty units; and

                             (ii)  in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2)—15 penalty units; and

                            (iii)  otherwise—30 penalty units; or

                     (b)  if the infringement notice is given to a person other than a body corporate for a single contravention:

                              (i)  in relation to a contravention of section 80 (which deals with giving a person a record of payments) or subsection 81(1) or (2) (which deals with keeping records)—3 penalty units; and

                             (ii)  in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2)—3 penalty units; and

                            (iii)  otherwise—6 penalty units; or

                     (c)  if the infringement notice is given to a person (whether or not a body corporate) for a number of contraventions—the number of penalty units worked out by multiplying the penalty units for a single contravention (worked out under paragraph (a) or (b)) by the number of alleged contraventions to which the notice relates.

Delegation

             (7)  The Secretary may, in writing, delegate the Secretary’s powers and functions under Part 5 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1) or (3), to:

                     (a)  the Chief Executive Centrelink; or

                     (b)  the Chief Executive Medicare; or

                     (c)  an SES employee or an acting SES employee.

             (8)  If the Secretary delegates any of the Secretary’s powers or functions under Part 5 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1) or (3), to the Chief Executive Centrelink, the Chief Executive Centrelink cannot, despite any provision in the Human Services (Centrelink) Act 1997, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:

                     (a)  an SES employee; nor

                     (b)  an acting SES employee.

             (9)  If the Secretary delegates any of the Secretary’s powers or functions under Part 5 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1) or (3), to the Chief Executive Medicare, the Chief Executive Medicare cannot, despite any provision in the Human Services (Medicare) Act 1973, delegate the power to a Departmental employee (within the meaning of that Act) who is neither:

                     (a)  an SES employee; nor

                     (b)  an acting SES employee.

Territories of Christmas Island and Cocos (Keeling) Islands

           (10)  Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsections (1) and (3), extends to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Part 4‑3Debt recovery

Division 1Guide to this Part

164  Guide to this Part

This Part provides for debts in relation to the paid parental leave scheme, and for the recovery of debts owing to the Commonwealth.

Division 2 provides for the main debts recoverable by the Commonwealth under this Act, as follows:

       (a)     overpayments or mistaken payments of parental leave pay or dad and partner pay;

      (b)     PPL funding amounts for a person that are not paid to the person as parental leave pay;

       (c)     parental leave pay, PPL funding amounts or dad and partner pay paid to the wrong person.

Division 3 allows an employee to recover, as a debt, parental leave pay due from his or her employer.

Division 4 deals with the procedure for raising a debt that is recoverable by the Commonwealth under this Act, and charging interest on the debt.

Division 5 deals with how the Commonwealth can recover debts.

Division 6 allows the Secretary to write off debts. Even if a debt is written off, it can be later recovered if circumstances change.

Division 7 allows the Secretary to waive debts in various circumstances.

Division 7A deals with when a departure prohibition order, prohibiting a person from departing from Australia for a foreign country, can be made if the person has a debt due to the Commonwealth under this Act.

Division 8 provides that debts under this Act apply in relation to matters inside and outside Australia, and to all persons irrespective of nationality or citizenship.

Division 2Main debts recoverable under this Act

165  Debts due to the Commonwealth

                   If an amount has been paid by way of parental leave pay, a PPL funding amount or dad and partner pay, the amount (or an amount equivalent to the amount) is a debt due to the Commonwealth only to the extent expressly provided for under:

                     (a)  this Act; or

                     (b)  the Data‑matching Program (Assistance and Tax) Act 1990.

Note:          The main debts due to the Commonwealth under this Act are provided for in this Division. Other debts due to the Commonwealth are provided for in the following provisions:

(a)    section 176 (which deals with interest);

(c)    section 186 (which deals with non‑compliance with garnishee notices).

166  Parental leave pay instalment debts—instalments paid by employer

             (1)  This section applies if:

                     (a)  the total of amounts paid to a person (the first person) by way of PPL funding amounts in relation to instalments for another person for a child exceeds (by the PPL funding excess) the total of amounts payable to the first person as PPL funding amounts in relation to those instalments; and

                     (b)  the first person pays an amount (the employer payment) to, or in relation to, the other person for the child by way of an instalment; and

                     (c)  the total of employer payments paid for the child exceeds (by the instalment excess) the total of amounts that are payable by the first person to, or in relation to, the other person for the child as instalments under Division 2 of Part 3‑2 (which deals with the payment of instalments by employers).

Note:          Instalments may stop being payable with retrospective effect if a payability determination that parental leave is payable to the other person for the child is set aside or varied after the instalments are paid.

             (2)  An amount equal to the lesser of the PPL funding excess and the instalment excess is a debt due to the Commonwealth by the other person.

Example:    If no amounts are payable by the first person to, or in relation to, the other person for a child as instalments, the amount of the instalment excess is the total amount of the employer payments.

             (3)  The debt under subsection (2) arises:

                     (a)  if the other person has a PPL period for the child but does not have a continuous PPL period for the child—immediately after the end of that PPL period; or

                    (aa)  if the other person has a continuous PPL period for the child under subsection 6A(1)—immediately after the end of that continuous PPL period; or

                     (b)  otherwise—when subsection (1) starts to apply in relation to an employer payment.

Note 1:       The other person does not have a PPL period for the child if a payability determination that parental leave pay is payable to the other person for the child for that period has not been made, or has been set aside. In such a case, a debt will arise as soon as there is an instalment excess.

Note 2:       This section may apply to overpayments by way of instalments or amounts that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error, the setting aside or variation of a payability determination or payments following a stay order under subsection 41(2) of the AAT Act.

167  Parental leave pay instalment debts—instalments paid by the Secretary

             (1)  This section applies if:

                     (a)  the Secretary pays an amount to, or in relation to, a person for a child by way of an instalment; and

                     (b)  the amount exceeds the amount that should have been paid to, or in relation to, the person under Part 3‑3.

Note:          Instalments may stop being payable with retrospective effect if the payability determination is set aside or varied after the instalments are paid.

             (2)  An amount equal to the amount of the excess is a debt due to the Commonwealth by the person.

             (3)  The debt under subsection (2) arises when the Secretary pays the amount mentioned in paragraph (1)(a).

168  PPL funding amount debts—amounts not paid as parental leave pay instalments

             (1)  This section applies if the total of amounts paid to a person (the first person) by way of PPL funding amounts in relation to instalments for another person for a child exceeds the total of amounts paid by the first person to, or in relation to, the other person by way of such instalments for the child.

             (2)  The amount of the excess is a debt due to the Commonwealth by the first person.

Example:    If the first person has not paid any amounts by way of instalments to the other person, the amount of the excess is the total of amounts paid to the first person by way of PPL funding amounts in relation to instalments for the other person for the child.

             (3)  The debt under subsection (2) arises:

                     (a)  if the other person has a PPL period for the child—at the earlier of the following times:

                              (i)  when the Secretary pays one or more of the instalments to, or in relation to, the other person under section 85, 86 or 87 (which deal with the payment of arrears);

                             (ii)  immediately after the end of that PPL period; or

                     (b)  otherwise—when subsection (1) starts to apply in relation to an amount paid to the first person.

Note 1:       The other person does not have a PPL period for the child if a payability determination that parental leave pay is payable to the person for the child has not been made, or has been set aside. In such a case, a debt will arise as soon as there is an excess referred to in subsection (1).

Note 2:       This section may apply to overpayments by way of PPL funding amounts or amounts that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error or the revocation or setting aside of an employer determination.

168A  Dad and partner pay debts

             (1)  This section applies if:

                     (a)  the Secretary pays an amount (the Secretary payment) to, or in relation to, a person for a child by way of dad and partner pay; and

                     (b)  the total of Secretary payments paid for the child exceeds the total of amounts that are payable to, or in relation to, the person for the child under Part 3A‑5 (which deals with the payment of dad and partner pay by the Secretary).

Note:          Dad and partner pay may cease to be payable after it has already been paid, if the payability determination is later set aside or varied.

             (2)  An amount equal to the amount of the excess is a debt due to the Commonwealth by the person.

Example:    If no dad and partner pay is payable to, or in relation to, a person for the child, the amount of the excess is the total amount of the Secretary payments.

             (3)  The debt under subsection (2) arises:

                     (a)  if the person has a DAPP period for the child—immediately after the end of the person’s DAPP period; or

                     (b)  otherwise—when subsection (1) starts to apply in relation to a Secretary payment.

Note 1:       The person does not have a DAPP period for the child if a payability determination that dad and partner pay is payable to the person for the child has not been made, or has been set aside. In such a case, a debt will arise as soon as there is an excess as referred to in subsection (1).

Note 2:       This section may apply to overpayments by way of payments that are mistakenly paid. For example, an overpayment or mistaken payment may arise due to administrative error, the setting aside or variation of a payability determination or payments following a stay order under subsection 41(2) of the AAT Act.

169  Wrong person receives parental leave pay instalment, PPL funding amount or dad and partner pay

                 (1)  This section applies if:

                     (a)  an instalment, a PPL funding amount or dad and partner pay (the PPL payment) is paid by the Secretary or an employer; and

                     (b)  a person (the wrong recipient) other than the person (the right recipient) to whom the PPL payment is payable receives the PPL payment (or a part of it); and

                     (c)  the wrong recipient is not authorised by the right recipient, or authorised under law, to receive the PPL payment (or that part).

             (2)  An amount equal to the PPL payment (or that part of the PPL payment), is a debt due by the wrong recipient to:

                     (a)  if the PPL payment is made by the Secretary—the Commonwealth; or

                     (b)  if the PPL payment is made by an employer—the employer.

Note 1:       Because the PPL payment (or part) has not been properly paid to the right recipient, the Secretary or the employer must repay to the right recipient the amount of the PPL payment that ought to have been paid to the right recipient in the first place.

Note 2:       The Secretary may recover a debt due to the Commonwealth under this section from an ADI (see section 192).

170  Joint and several liability for debts arising because of false and misleading statements

                   A person (the recipient) and another person are jointly and severally liable to pay a debt if:

                     (a)  the recipient is liable under this Division to repay an amount (the unauthorised amount) paid to, or in relation to, the recipient (or an amount equal to such an amount); and

                     (b)  the unauthorised amount was paid because the recipient contravened Part 7.4 of the Criminal Code (which deals with false and misleading statements); and

                     (c)  the other person is convicted of an offence:

                              (i)  that is taken to have been committed in relation to that contravention because of section 11.2 or 11.2A of the Criminal Code (which deal with complicity, common purpose and joint commission); or

                             (ii)  in relation to that contravention against section 11.4 or 11.5 of the Criminal Code (which deal with incitement and conspiracy).

171  Debts under the Data‑matching Program (Assistance and Tax) Act 1990

                   An amount is recoverable by the Commonwealth if:

                     (a)  the amount has been paid to, or in relation to, a person by way of an instalment or by way of dad and partner pay; and

                     (b)  the amount is a debt due to the Commonwealth under subsection 11(6) of the Data‑matching Program (Assistance and Tax) Act 1990.

Division 3Parental leave pay recoverable by employees from employers

172  PPL funding amount debts—debts owing by employers to employees

             (1)  This section applies if:

                     (a)  a PPL funding amount is paid to an employer in relation to an instalment that is payable to a person; and

                     (b)  the instalment, or part of the instalment, is not paid to, or in relation to, the person in accordance with the following provisions:

                              (i)  section 70 (which deals with unauthorised deductions from instalments);

                             (ii)  Division 2 of Part 3‑2 (which deals with the payment of instalments by employers).

             (2)  So much of the instalment as is not paid to, or in relation to, the person in accordance with section 70 and Division 2 of Part 3‑2, or as arrears under section 85, 86 or 87, is a debt due to the person by the employer, and is recoverable by the person in a court of competent jurisdiction.

Division 4Debt notices and interest on debts

173  Notices in respect of debt

             (1)  If a debt due to the Commonwealth under this Act has not been wholly paid, the Secretary must give the debtor a notice stating the following:

                     (a)  the date the preparation of the notice is completed (the date of the notice);

                     (b)  for a debt under section 168 that relates to a PPL funding amount payable in relation to an instalment (or a debt under this Division in relation to such a debt)—the name of the person to whom, or in relation to whom, the instalment is payable;

                     (c)  the reason the debt was incurred, including a brief explanation of the circumstances that led to the debt being incurred;

                     (d)  the period to which the debt relates;

                     (e)  the outstanding amount of the debt at the date of the notice;

                      (f)  the day on which the outstanding amount is due and payable;

                    (fa)  the effect of sections 174 and 175;

                     (g)  that a range of options is available for repayment of the debt;

                     (h)  the contact details for inquiries concerning the debt.

Due date

             (2)  The outstanding amount of the debt is due and payable on the 28th day after the date of the notice.

Multiple notices

             (3)  The Secretary may give more than one notice under subsection (1) in relation to a person and a debt of the person.

174  Interest charge—no debt payment arrangement in effect

             (1)  If:

                     (a)  a notice is given to a person under subsection 173(1) in relation to a debt; and

                     (b)  an amount (the unpaid amount) of the debt remains unpaid at the end of the day (the due day) on which the debt is due to be paid; and

                     (c)  at the end of the due day, there is no debt payment arrangement in effect in relation to the debt;

then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).

Note:          For exemptions, see sections 178 and 179.

             (2)  The period starts at the beginning of the day after the due day and ends at the end of the earlier of the following days:

                     (a)  the last day at the end of which any of the following remains unpaid:

                              (i)  the unpaid amount;

                             (ii)  interest charge on any of the unpaid amount;

                     (b)  the day before the first day, after the due day, on which the person makes a payment under a debt payment arrangement in relation to the debt.

             (3)  The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:

                     (a)  the unpaid amount;

                     (b)  the interest charge from previous days.

Note 1:       For interest charge rate see section 177.

Note 2:       The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.

175  Interest charge—failure to comply with or termination of debt payment arrangement

             (1)  If:

                     (a)  a debt payment arrangement is in effect in relation to a person and a debt; and

                     (b)  the person fails to make a payment under the arrangement;

then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).

Note:          For exemptions, see sections 178 and 179.

             (2)  The period starts at the beginning of the day after the day (the due day) on which the payment was required to be made under the arrangement and ends at the end of the earliest of the following days:

                     (a)  the last day at the end of which any of the following remains unpaid:

                              (i)  the outstanding amount of the debt;

                             (ii)  interest charge on any of the outstanding amount of the debt;

                     (b)  the day before the first day, after the due day, on which the person has paid all the payments that have so far become due and payable under the arrangement;

                     (c)  the day before the day the arrangement is terminated under section 190.

             (3)  The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:

                     (a)  the outstanding amount of the debt;

                     (b)  the interest charge from previous days.

Note 1:       For interest charge rate see section 177.

Note 2:       The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.

Debt payment arrangement is terminated

             (4)  If:

                     (a)  a debt payment arrangement is in effect in relation to a person and a debt; and

                     (b)  the arrangement is then terminated under section 190 on a day (the termination day);

then:

                     (c)  the following amounts (if any) are due and payable on the 14th day after the termination day:

                              (i)  the outstanding amount of the debt;

                             (ii)  interest charge on any of the outstanding amount of the debt; and

                     (d)  if, at the end of that 14th day, any of those amounts remains unpaid, the person is liable to pay, by way of penalty, interest charge, worked out under subsection (6), for each day in the period described in subsection (5).

Note:          For exemptions, see sections 178 and 179.

             (5)  The period starts at the beginning of the day after that 14th day and ends at the end of the earlier of the following days:

                     (a)  the last day at the end of which any of the following remains unpaid:

                              (i)  the outstanding amount of the debt;

                             (ii)  interest charge on any of the outstanding amount of the debt;

                     (b)  the day before the first day, after that 14th day, on which the person makes a payment under another debt payment arrangement in relation to the debt.

             (6)  The interest charge for a day in the period described in subsection (5) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:

                     (a)  the outstanding amount of the debt;

                     (b)  the interest charge from previous days.

Note 1:       For interest charge rate see section 177.

Note 2:       The interest charge for a day is due and payable to the Commonwealth at the end of that day and is a debt due to the Commonwealth: see section 176.

176  Other rules for interest charge

When interest charge is due and payable

             (1)  The interest charge under section 174 or 175 for a day is due and payable to the Commonwealth at the end of that day.

Interest charge is a debt

             (2)  The interest charge under section 174 or 175 for a day is a debt due to the Commonwealth by the person.

Provisions that do not apply to interest charge debt

             (3)  Subsection 173(1) does not apply in relation to the debt referred to in subsection (2) of this section.

177  What is the interest charge rate?

             (1)  The interest charge rate for a day is the rate worked out by adding 7 percentage points to the base interest rate for that day, and dividing that total by the number of days in the calendar year.

             (2)  The base interest rate for a day depends on which quarter of the year the day is in. For each day in a quarter in column 1 of the table, it is the monthly average yield of 90‑day Bank Accepted Bills published by the Reserve Bank of Australia for the month in column 2 of the table.

 

Base interest rate

Item

Column 1
For days in this quarter:

Column 2
the monthly average yield of 90‑day Bank Accepted Bills for this month applies:

1

1 January to 31 March

the preceding November

2

1 April to 30 June

the preceding February

3

1 July to 30 September

the preceding May

4

1 October to 31 December

the preceding August

             (3)  If the monthly average yield of 90‑day Bank Accepted Bills for a particular month in column 2 of the table in subsection (2) is not published by the Reserve Bank of Australia before the beginning of the relevant quarter, assume that it is the same as the last monthly average yield of 90‑day Bank Accepted Bills published by the Reserve Bank of Australia before that month.

             (4)  The base interest