2010

Contents

Part 1-1 Introduction

1.1 Name of Rules

1.2 Commencement

Part 1-2 Definitions

1.3 Definitions

1.4 Meaning of incapable of caring for a child

Part 2-3 Eligibility for parental leave pay

Division 2.3.1 When a person is eligible for parental leave pay

Subdivision 2.3.1.1 When a primary claimant is eligible for parental leave pay

2.1 When primary claimant is eligible for parental leave pay

2.2 Conditions — primary claimants

2.3 Care requirements for primary claimants — temporary inability to care

2.4 Care requirements for primary claimants — loss of care for child

2.5 Work requirements for primary claimants — recall to duty

2.5A Work requirements for primary claimants – summons or other compulsory process

2.5B Work requirements for primary claimants – child remains in hospital following birth

2.6 Birth mother relinquishing child

Subdivision 2.3.1.2 When a secondary claimant is eligible for parental leave pay

2.7 When a secondary claimant is eligible for parental leave pay

2.8 Conditions — secondary claimants in normal circumstances

2.9 Care requirements for secondary claimants — temporary inability to care

2.10 Care requirements for secondary claimants — loss of care for child

2.11 Work requirements for secondary claimants — recall to duty

2.11A Work requirements for secondary claimants – summons or other compulsory process

2.11B Work requirements for secondary claimants in normal circumstances – child remains in hospital following birth

2.12 Conditions — secondary claimants in exceptional circumstances

2.13 Exceptional circumstances care requirements for secondary claimants — temporary inability to care

2.14 Exceptional circumstances care requirements for secondary claimants — loss of care for child

2.15 Exceptional circumstances work requirements for secondary claimants — recall to duty

2.16 Exceptional circumstances work requirements for secondary claimants — working while care arrangements being settled

2.16A Exceptional circumstances work requirements for secondary claimants – summons or other compulsory process

Subdivision 2.3.1.3 When a person is eligible for parental leave pay — tertiary claimant

2.17 When a tertiary claimant is eligible for parental leave pay

2.18 Conditions — tertiary claimants

2.19 Care requirements for tertiary claimants — temporary inability to care

2.20 Care requirements for tertiary claimants — loss of care for child

2.21 Work requirements for tertiary claimants — recall to duty

2.22 Tertiary claimants working while care arrangements being settled

2.22A Work requirements for tertiary claimants –summons or other compulsory process

Division 2.3.2 The work test

Subdivision 2.3.2.1 Paid leave

2.23 Purpose

2.24 What is taken to be paid leave

Subdivision 2.3.2.2 Paid work

2.25 Purpose

2.26 What is not taken to be paid work

Part 2-4 Claims for parental leave pay

Division 2.4.1 Claims for parental leave pay

Subdivision 2.4.1.1 Exceptional circumstances for primary claims

2.27 Who can make a primary claim

2.28 Exceptional circumstances for primary claimants — general

2.29 Exceptional circumstances — primary claimants who have no specific relationship with child

2.30 Exceptional circumstance — surrogacy arrangements

2.31 Unreasonableness and interests of child

Subdivision 2.4.1.2 Exceptional circumstances for secondary claims

2.32 Who can make a secondary claim

2.33 Exceptional circumstances for secondary claimants — general

2.34 Unreasonableness and interests of child

Subdivision 2.4.1.3 Exceptional circumstances for tertiary claims

2.35 Who can make a tertiary claim

2.36 Exceptional circumstances for tertiary claimants — general

2.37 Unreasonableness and interests of child

Part 3-2 Payment of instalments by employer

3.1 Definitions

3.2 Information required

3.3 Form of information

3.4 Records to be made and kept

Part 3-3 Payment of instalments by Secretary

3.5 Record of payment

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

Division 3A.2.1 Dad and partner pay is already payable to the person etc.

3A.1 Dad and partner pay is already payable to the person etc.

Part 3A-3 Eligibility for dad and partner pay

Division 3A.3.1 When a DAPP claimant is eligible for dad and partner pay

Subdivision 3A.3.1.1 When a DAPP claimant is eligible for dad and partner pay

3A.2 When a DAPP claimant is eligible for dad and partner pay

3A.3 Conditions - DAPP claimants

(1) The conditions are that:

(1A) For the purposes of subparagraph 3A.3(1)(b), disregard a person working in any of the following circumstances:

3A.4 Care requirements for DAPP claimants – temporary inability to care

3A.5 Care requirements for DAPP claimants – loss of care for child

3A.6 Work requirements for DAPP claimants – recall to duty

3A.7 Work requirements for DAPP claimants – summons or other compulsory process

Division 3A.3.2 The work test

Subdivision 3A.3.2.1 Not working

3A.8 Purpose

3A.9 What is taken to be not working

Part 3A-4 Claims for dad and partner pay

Division 3A.4.1 Claims for dad and partner pay

Subdivision 3A.4.1.1 Prescribed circumstances for dad and partner pay claims

3A.10 Who can make a claim for dad and partner pay

3A.11 Prescribed circumstances – partner of a child’s primary carer when care arrangements change

3A.12 Prescribed circumstance – partner of the biological father of the child

3A.13 Prescribed circumstance – partner of an adoptive parent of the child

3A.14 Prescribed circumstance – surrogacy arrangements

Part 3-4 Payment of dad and partner pay by Secretary

3A.15 Record of payment

Part 4-1 Information gathering

Division 4.1.1 General

4.1 Purpose

4.2 Definitions

Division 4.1.2 Guidelines — public interest certificate

4.3 Matters to which Secretary must have regard

4.4 When public interest certificate may be given

4.5 Threat to life, health or safety

4.6 Enforcement of laws

4.6A Proceeds of crime order

4.7 Mistake of fact

4.8 Ministerial briefing

4.9 Missing person

4.10 Deceased person

4.11 Research, statistical analysis and policy development

4.12 Operation of the Family Responsibilities Commission

4.13 Reparations

4.14 Child protection agencies

4.15 Public Housing Administration

Part 4-3 Debt recovery

Division 4.3.1 Debt notices and interest on debts

4.16 Penalty interest rate

Division 4.3.2 Penalty interest guidelines

4.17 Purpose of Division

4.18 Arrangement entered into after final debt payment day

4.19 Payments resumed in accordance with existing arrangement or new arrangement entered into after failure day

4.20 Garnishee notice issued in respect of debt

4.21 No capacity to pay debt

Division 4.3.3 Waiver of debts – settlement of civil actions

4.22 Settlement interest

Part 6-3 Extension of Act to persons who are not employees and employers

Division 6.3.1 Extension of Act to law enforcement officers — specified States and Territories

6.1 Application of Division 6.3.1

6.2 Definitions for Division 6.3.1

6.3 Extension of Act to persons who are not employees and employers — law enforcement officers (specified States and Territories)

6.4 Modification of Act — law enforcement officers (specified States and Territories)

Division 6.3.2 Extension of Act to law enforcement officers — Queensland

6.5 Definitions for Division 6.3.2

6.6 Extension of Act to persons who are not employees and employers — law enforcement officers (Queensland)

6.7 Modification of Act — law enforcement officers (Queensland)

Division 6.3.3 Extension of Act to law enforcement officers — Australian Federal Police

6.8 Definitions for Division 6.3.3

6.9 Extension of Act to persons who are not employees and employers — law enforcement officers (Australian Federal Police)

6.10 Modification of Act — law enforcement officers (Australian Federal Police)

Division 6.3.4 Extension of Act to defence force members

6.11 Definitions for Division 6.3.4

6.12 Extension of Act to persons who are not employees and employers — Defence force members

6.13 Modification of Act — Defence force members

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Part 1-1 Introduction

1.1 Name of Rules

These Rules are the Paid Parental Leave Rules 2010.

1.2 Commencement

These Rules commence on the day after they are registered.

Part 1-2 Definitions

1.3 Definitions

In these Rules:

Act means the Paid Parental Leave Act 2010.

incapable of caring for a child has the meaning given by rule 1.4.

parenting order has the meaning given by subsection 64B (1) of the Family Law Act 1975.

parenting plan has the meaning given by subsection 63C (1) of the Family Law Act 1975.

1.4 Meaning of incapable of caring for a child

(1) A person is incapable of caring for a child on a day if, on that day:

(a) there is a parenting order in force resulting in the person not providing care for the child; or

(b) the person is deceased; or

(d) the person’s whereabouts are unknown; or

(e) the person suffers from a medical condition that makes the person incapable of providing care for the child; or

(f) the Secretary is satisfied that the person is, for a reason outside the control of the person, incapable of providing care for the child.

(2) The person is not incapable of caring for a child if the person voluntarily chooses not to provide care for the child.

Example

A person may voluntarily choose not to provide care for a child by deciding to travel overseas on a holiday or to visit relatives or friends or by deciding to look after other relatives.

Part 2-3 Eligibility for parental leave pay

Division 2.3.1 When a person is eligible for parental leave pay

Subdivision 2.3.1.1 When a primary claimant is eligible for parental leave pay

2.1 When primary claimant is eligible for parental leave pay

This Subdivision is made for subparagraph 31 (4) (a) (iv) of the Act and prescribes the conditions that a person who is a primary claimant must satisfy to be eligible for parental leave pay for a child.

Note Under paragraph 31 (4) (a) of the Act, a primary claimant must satisfy the work test, the income test and the Australian residency test in addition to the conditions prescribed by this Subdivision.

2.2 Conditions — primary claimants

(1) The conditions are that:

(a) the person:

(i) is the primary carer of the child; or

(ii) satisfies the requirements of rule 2.3 or rule 2.4; or

(iii) satisfies the requirement of rule 2.6; and

(b) subject to subrule (1A), the person has not returned to work; and

(1A) For the purposes of paragraph 2.2(1)(b), disregard a return to work in any of the following circumstances:

(a) if the person satisfies rule 2.4—a return to work on one or more days in the period the child is not in the person’s care;

(b) if the person satisfies rule 2.5—a return to work on a day referred to in paragraph 2.5(b);

(d) if the person satisfies rule 2.5B—a return to work on one or more days in the period that starts on the day that is 14 days after the day the child is born and ends on the day the child is discharged from hospital;

(e) if paragraph 2.6(b) applies to the person—a return to work on one or more days to which paragraph 2.6(b) applies.

(2) A person is covered by this subrule if both of the following are satisfied:

(a) the person and the person’s partner are not entitled to baby bonus for the child;

(b) a former partner of the person was not entitled to baby bonus for the child when he or she was the person’s partner.

2.3 Care requirements for primary claimants — temporary inability to care

For subparagraph 2.2 (1) (a) (ii), the requirements are as follows:

(a) the person will be, or previously was, the primary carer of the child;

(b) the person is temporarily unable to be the primary carer of the child due to circumstances beyond the person’s control, other than a circumstance mentioned in paragraph 2.4 (b);

(d) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day;

(e) the Secretary is satisfied that the person would have been the child’s primary carer except for the person’s temporary inability to be the child’s primary carer.

2.4 Care requirements for primary claimants — loss of care for child

For subparagraph 2.2 (1) (a) (ii), the requirements are that:

(a) the person previously was the primary carer of the child; and

(b) an event occurs in relation to the child without the person’s consent that prevents the child being in the person’s care; and

(d) the person, or the person’s partner, is the child’s legal parent or is otherwise legally responsible for the child; and

(e) if the child is in the care of another legal parent — the person, or the person’s partner, has a court order or a parenting plan to the effect that the child is to live with the person or the person’s partner; and

(f) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day.

2.5 Work requirements for primary claimants — recall to duty

For paragraph 2.2(1A)(b), the requirements are that the person:

(a) is a defence force member or a law enforcement officer; and

(b) has performed paid work on a day because the person has been compulsorily recalled to duty.

2.5A Work requirements for primary claimants – summons or other compulsory process

For paragraph 2.2(1A)(c) the requirement is that the person has performed paid work on a day because the person has to comply with the requirements of a summons or other compulsory process to appear to give evidence or information or to produce documents or other things.

2.5B Work requirements for primary claimants – child remains in hospital following birth

For paragraph 2.2(1A)(d), the requirements are that:

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

(b) the child is required to remain in hospital or is hospitalised immediately after their birth for one or more of the following reasons:

(i) the child was born prematurely;

(ii) the child developed a complication or contracted an illness during their period of gestation or at birth;

(iii) the child developed a complication or contracted an illness following their birth.

2.6 Birth mother relinquishing child

For subparagraph 2.2 (1) (a) (iii), the requirement is that, on a day that is within 18 weeks of the child’s birth, the person is the birth mother of the child and is not caring for the child because:

(a) the person relinquished the child:

(i) as part of the process for the adoption of the child; or

(ii) because the child was born of a surrogacy arrangement; or

(iii) because the child was removed from the person’s care by a State or Territory child protection agency; or

(b) both the following apply:

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

(ii) the person would have relinquished the child in the circumstances mentioned in paragraph (a) had the child not been stillborn or died.

Subdivision 2.3.1.2 When a secondary claimant is eligible for parental leave pay

2.7 When a secondary claimant is eligible for parental leave pay

This Subdivision is made for paragraph 31 (4) (b) of the Act and prescribes the conditions that a person who is a secondary claimant must satisfy to be eligible for parental leave pay for a child.

2.8 Conditions — secondary claimants in normal circumstances

(1) The conditions in this rule apply to a person:

(a) who is the partner of a primary claimant; or

(b) who:

(i) is a parent of the child; and

(ii) is not the primary claimant; or

(2) The conditions are that:

(a) the person satisfies the work test; and

(b) the person satisfies the income test; and

(d) the person:

(i) is the primary carer of the child; or

(ii) satisfies the requirements of rule 2.9 or rule 2.10; and

(e) subject to subrule (2A), the person has not returned to work; and

(f) the person is covered by subrule (3).

(2A) For the purposes of paragraph 2.8(2)(e), disregard a return to work in any of the following circumstances:

(a) if the person satisfies rule 2.10—a return to work on one or more days in the period the child is not in the person’s care;

(b) if the person satisfies rule 2.11—a return to work on a day referred to in paragraph 2.11(b);

(d) if the person satisfies rule 2.11B—a return to work on one or more days in the period that starts on the day the child is born and ends the day the child is discharged from hospital.

(3) A person is covered by this subrule if both of the following are satisfied:

(a) the person and the person’s partner are not entitled to baby bonus for the child;

(b) a former partner of the person was not entitled to baby bonus for the child when he or she was the person’s partner.

Note The conditions that apply to a person who makes a secondary claim in exceptional circumstances are set out in rule 2.12.

2.9 Care requirements for secondary claimants — temporary inability to care

For subparagraph 2.8 (2) (d) (ii), the requirements are as follows:

(a) the person will be, or previously was, the primary carer of the child;

(b) the person is temporarily unable to be the primary carer of the child due to circumstances beyond the person’s control, other than a circumstance mentioned in paragraph 2.10 (b);

(d) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day;

(e) the Secretary is satisfied that the person would have been the child’s primary carer except for the person’s temporary inability to be the child’s primary carer.

2.10 Care requirements for secondary claimants — loss of care for child

For subparagraph 2.8 (2) (d) (ii), the requirements are that:

(a) the person previously was the primary carer of the child; and

(b) an event occurs in relation to the child without the person’s consent that prevents the child being in the person’s care; and

(d) the person, or the person’s partner, is the child’s legal parent or is otherwise legally responsible for the child; and

(f) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day.

2.11 Work requirements for secondary claimants — recall to duty

For paragraph 2.8(2A)(b), the requirements are that the person:

(a) is a defence force member or a law enforcement officer; and

(b) has performed paid work on a day because the person has been compulsorily recalled to duty.

2.11A Work requirements for secondary claimants – summons or other compulsory process

For paragraph 2.8(2A)(c) the requirement is that the person has performed work on a day because the person has to comply with the requirements of a summons or other compulsory process to appear to give evidence or information or to produce documents or other things.

2.11B Work requirements for secondary claimants in normal circumstances – child remains in hospital following birth

For paragraph 2.8(2A)(d), the requirements are that:

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

(b) the child is required to remain in hospital or is hospitalised immediately after their birth for one or more of the following reasons:

(i) the child was born prematurely;

(ii) the child developed a complication or contracted an illness during their period of gestation or at birth;

(iii) the child developed a complication or contracted an illness following their birth.

2.12 Conditions — secondary claimants in exceptional circumstances

(1) The conditions in this rule apply to a person who satisfies the exceptional circumstances prescribed by Subdivision 2.4.1.2 for making a secondary claim.

(2) The conditions are that:

(a) the person satisfies the Australian residency test; and

(b) the person:

(i) is the primary carer of the child; or

(ii) satisfies the requirements of rule 2.13 or rule 2.14; and

(d) the person is covered by subrule (3).

(2A) For the purposes of paragraph 2.12(2)(c), disregard a return to work in any of the following circumstances:

(a) if the person satisfies rule 2.14—a return to work on one or more days in the period the child is not in the person’s care;

(b) if the person satisfies rule 2.15—a return to work on a day referred to in paragraph 2.15(b);

(d) if the person satisfies rule 2.16A—a return to work on a day referred to in rule 2.16A.

(3) A person is covered by this subrule if both of the following are satisfied:

(a) the person and the person’s partner are not entitled to baby bonus for the child;

(b) a former partner of the person was not entitled to baby bonus for the child when he or she was the person’s partner.

2.13 Exceptional circumstances care requirements for secondary claimants — temporary inability to care

For subparagraph 2.12 (2) (b) (ii), the requirements are as follows:

(a) the person will be, or previously was, the primary carer of the child;

(b) the person is temporarily unable to be the primary carer of the child due to circumstances beyond the person’s control, other than a circumstance mentioned in paragraph 2.14 (b);

(d) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day;

(e) the Secretary is satisfied that the person would have been the child’s primary carer except for the person’s temporary inability to be the child’s primary carer.

2.14 Exceptional circumstances care requirements for secondary claimants — loss of care for child

For subparagraph 2.12 (2) (b) (ii), the requirements are that:

(a) the person previously was the primary carer of the child; and

(b) an event occurs in relation to the child without the person’s consent that prevents the child being in the person’s care; and

(d) the person, or the person’s partner, is the child’s legal parent or is otherwise legally responsible for the child; and

(f) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day.

2.15 Exceptional circumstances work requirements for secondary claimants — recall to duty

For paragraph 2.12(2A)(b), the requirements are that the person:

(a) is a defence force member or a law enforcement officer; and

(b) has performed paid work on a day because the person has been compulsorily recalled to duty.

2.16 Exceptional circumstances work requirements for secondary claimants — working while care arrangements being settled

For paragraph 2.12(2A)(c), the requirements are that:

(a) the person performed paid work, other than for a permissible purpose, on a day or days during the period commencing immediately after the primary claimant stopped caring for the child and ending when the care arrangements for the child were settled; and

(b) care arrangements for the child were settled within a reasonable time after the primary claimant stopped caring for the child.

2.16A Exceptional circumstances work requirements for secondary claimants – summons or other compulsory process

For paragraph 2.12(2A)(d) the requirement is that the person has performed work on a day because the person has to comply with the requirements of a summons or other compulsory process to appear to give evidence or information or to produce documents or other things.

Subdivision 2.3.1.3 When a person is eligible for parental leave pay — tertiary claimant

2.17 When a tertiary claimant is eligible for parental leave pay

This Subdivision is made for paragraph 31 (4) (b) of the Act and prescribes the conditions that a person who is a tertiary claimant must satisfy to be eligible for parental leave pay for a child.

2.18 Conditions — tertiary claimants

(1) The conditions are that:

(a) the person satisfies the Australian residency test; and

(b) the person:

(i) is the primary carer of the child; or

(ii) satisfies the requirements of rule 2.19 or rule 2.20; and

(d) the person is covered by subrule (2).

(1A) For the purposes of paragraph 2.18(1)(c), disregard a return to work in any of the following circumstances:

(a) if the person satisfies rule 2.20—a return to work on one or more days in the period the child is not in the person’s care;

(b) if the person satisfies rule 2.21—a return to work on a day referred to in paragraph 2.21(b);

(d) if the person satisfies rule 2.22A—a return to work on a day referred to in rule 2.22A.

(2) A person is covered by this subrule if both of the following are satisfied:

(a) the person and the person’s partner are not entitled to baby bonus for the child;

(b) a former partner of the person was not entitled to baby bonus for the child when he or she was the person’s partner.

2.19 Care requirements for tertiary claimants — temporary inability to care

For subparagraph 2.18 (1) (b) (ii), the requirements are that:

(a) the person will be, or previously was, the primary carer of the child; and

(b) the person is temporarily unable to be the primary carer of the child due to circumstances beyond the person’s control, other than a circumstance mentioned in paragraph 2.20 (b); and

(d) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day; and

(e) the Secretary is satisfied that the person would have been the child’s primary carer except for the person’s temporary inability to be the child’s primary carer.

2.20 Care requirements for tertiary claimants — loss of care for child

For subparagraph 2.18 (1) (b) (ii), the requirements are that:

(a) the person previously was the primary carer of the child; and

(b) an event occurs in relation to the child without the person’s consent that prevents the child being in the person’s care; and

(d) the person, or the person’s partner, is the child’s legal parent or is otherwise legally responsible for the child; and

(f) there is no determination in force under the Act that parental leave pay is payable for the child to another person for the same day.

2.21 Work requirements for tertiary claimants — recall to duty

For paragraph 2.18(1A)(b), the requirements are that the person:

(a) is a defence force member or a law enforcement officer; and

(b) has performed paid work on a day because the person has been compulsorily recalled to duty.

2.22 Tertiary claimants working while care arrangements being settled

For paragraph 2.18(1A)(c), the requirements are that:

(a) the person performed paid work, other than for a permissible purpose, on a day or days during the period commencing immediately after the secondary claimant stopped caring for the child and ending when the care arrangements for the child were settled; and

(b) care arrangements for the child were settled within a reasonable time after the secondary claimant stopped caring for the child.

2.22A Work requirements for tertiary claimants –summons or other compulsory process

For paragraph 2.18(1A)(d) the requirement is that the person has performed paid work on a day because the person has to comply with the requirement of a summons or other compulsory process to appear to give evidence or information or to produce documents or other things.

Division 2.3.2 The work test

Subdivision 2.3.2.1 Paid leave

2.23 Purpose

This Subdivision is made for subsection 34 (2) of the Act and prescribes what is, or is not, taken to be paid leave.

2.24 What is taken to be paid leave

A person is taken to be on paid leave if:

(a) the person is on unpaid leave from his or her employer; and

(b) during the period of unpaid leave the person receives workers’ compensation payments or accident compensation payments from another body in relation to the person’s employment with his or her employer.

Subdivision 2.3.2.2 Paid work

2.25 Purpose

This Subdivision is made for subsection 35 (5) of the Act and prescribes what is, or is not, taken to be paid work.

2.26 What is not taken to be paid work

(1) A person is not taken to perform paid work only because the person:

(a) performs an activity which is required to be performed as a condition for receiving a social security payment; or

(b) both:

(i) is a prisoner; and

(ii) performs work otherwise than under a formal prisoner employment program; or

(c) engages in an activity as a volunteer, whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity; or

(d) receives:

(i) interest, unless subrule (2) applies; or

(ii) rents, dividends or non-share dividends; or

(iii) any other passive income.

(2) Subparagraph (1) (d) (i) does not apply if:

(a) the person’s principal business consists of lending money; or

(b) the interest is received in relation to a debt due to the person for goods supplied or services rendered by the person in the course of the person’s business.

(3) In this rule:

passive income, for a person, means income that is not obtained as a result of, or derived from, the personal exertion of the person.

social security payment has the same meaning as in section 23 of the Social Security Act 1991.

Part 2-4 Claims for parental leave pay

Division 2.4.1 Claims for parental leave pay

Subdivision 2.4.1.1 Exceptional circumstances for primary claims

2.27 Who can make a primary claim

(1) This Subdivision is made for paragraph 54 (1) (c) of the Act and prescribes the circumstances that are exceptional circumstances in which a primary claim can be made for a child.

(2) A person who satisfies the circumstances prescribed by this Subdivision can make a primary claim.

2.28 Exceptional circumstances for primary claimants — general

(1) The circumstances are that the person:

(a) has, and is likely to continue to have, care of the child for at least 26 weeks; and

(b) became, or will become, the child’s primary carer:

(i) before the child’s first birthday; or

(ii) for an adopted child — before the first anniversary of the day of placement of the child; and

(d) if rule 2.29 applies to the person — satisfies the circumstances mentioned in subrule 2.29 (2).

(2) For paragraph (1) (c), a person is covered by this subrule if:

(a) the birth mother, or adoptive parent, of the child is incapable of caring for the child and will be incapable, or is likely to be incapable, of caring for the child for at least 26 weeks; or

(b) the Secretary is satisfied on reasonable grounds that:

(i) the person became the primary carer of the child in special circumstances; and

(ii) it would be unreasonable for the birth mother, or adoptive parent, of the child to care for the child; and

(iii) it is in the interests of the child for the person to care for the child.

Note For what is unreasonable and in the interests of the child, see rule 2.31.

(3) This rule does not apply to circumstances to which rule 2.30 applies.

2.29 Exceptional circumstances — primary claimants who have no specific relationship with child

(1) This rule is made for paragraph 2.28 (1) (d) and applies to a person who is not:

(a) the partner of the birth mother of the child; or

(b) for an adopted child — the partner of the adoptive parent of the child; or

(i) the other legal parent of the child; or

(ii) the partner of the other legal parent of the child.

(2) For a person to whom this rule applies, the circumstances are as follows:

(a) the partner of the birth mother, or of the adoptive parent, is incapable of caring for the child;

(b) the child was not entrusted to the care of the person, or to the care of the person’s partner, under a decision by a State or Territory child protection agency under legislation dealing with child protection in the State or Territory;

(i) the person became the primary carer of the child in special circumstances; and

(ii) it would be unreasonable for the partner of the child’s birth mother, or the partner of the child’s adoptive parent, to care for the child; and

(iii) it is in the interests of the child for the person to care for the child.

Note For what is unreasonable and in the interests of the child, see rule 2.31.

2.30 Exceptional circumstance — surrogacy arrangements

(1) This rule applies to a person who is the primary carer of a child born of a surrogacy arrangement.

(2) For a person to whom this rule applies, the circumstances are that the person:

(a) has, and is likely to continue to have, care of the child for at least 26 weeks; and

(b) became, or will become, the child’s primary carer before the child’s first birthday; and

(3) A person is covered by this subrule if the Secretary is satisfied on reasonable grounds that:

(a) the person is the primary carer of a child born of a surrogacy arrangement; and

(b) it is in the interests of the child for the person to care for the child

(4) For paragraph 2.30(3)(b), in considering what is in the interests of the child, the Secretary is to consider:

(a) whether the person intends to be the long-term primary carer of the child;

(b) whether the surrogate birth mother has relinquished care of the child;

(c) any other matter that the Secretary considers relevant to a proper consideration of what is in the interests of the child.

2.31 Unreasonableness and interests of child

(1) For subparagraphs 2.28 (2) (b) (ii), 2.29 (2) (c) (ii) and 3A.11 (3) (b) (ii), it is unreasonable for a person to care for the child if the Secretary is satisfied that:

(a) there has been extreme family breakdown, or similar circumstances, in relation to the child’s family situation; or

(b) there is a serious risk to the child’s physical or mental wellbeing from violence, neglect or sexual abuse in the child’s family situation.

(2) For subparagraphs 2.28 (2) (b) (iii), 2.29 (2) (c) (iii) and 3A.11 (3) (b) (iii), in considering what is in the interests of the child, the Secretary is to consider the arrangements for the child’s care with the person in comparison with the arrangements for the child’s care in the child’s previous family situation.

Example

The Secretary may consider that it is in the interests of the child for the person to care for the child if the child’s birth mother refuses to provide any care for the child or because the child is severely disabled and the mother is incapable of providing for the child’s needs.

Subdivision 2.4.1.2 Exceptional circumstances for secondary claims

2.32 Who can make a secondary claim

(1) This Subdivision is made for paragraph 54 (2) (d) of the Act and prescribes the circumstances that are exceptional circumstances in which a secondary claim can be made for a child.

(2) A person who satisfies the circumstances prescribed by this Subdivision can make a secondary claim.

2.33 Exceptional circumstances for secondary claimants — general

(1) The circumstances are as follows:

(a) the person has, and is likely to continue to have, care of the child for at least 26 weeks;

(c) if the person is the partner of the primary claimant for the child — the primary claimant is incapable of caring for the child and will be incapable, or is likely to be incapable, of caring for the child for at least 26 weeks;

(d) if the person is not the partner of the primary claimant for the child — the person is covered by subrule (2).

(2) For paragraph (1) (d), a person is covered by this subrule if any of the following apply:

(a) the primary claimant and the primary claimant’s partner are incapable of caring for the child and are likely to be incapable of caring for the child for at least 26 weeks;

(b) the Secretary is satisfied on reasonable grounds that:

(i) the person became the primary carer of the child in special circumstances; and

(ii) it would be unreasonable for the primary claimant or the primary claimant’s partner to care for the child; and

(iii) it is in the interests of the child for the person to care for the child.

Note For what is unreasonable and in the interests of the child, see rule 2.34.

2.34 Unreasonableness and interests of child

(1) For subparagraph 2.33 (2) (b) (ii), it is unreasonable for a person to care for the child if the Secretary is satisfied that:

(a) there has been extreme family breakdown, or similar circumstances, in relation to the child’s family situation; or

(b) there is a serious risk to the child’s physical or mental wellbeing from violence, neglect or sexual abuse in the child’s family situation.

(2) For subparagraph 2.33 (2) (b) (iii), in considering what is in the interests of the child, the Secretary is to consider the arrangements for the child’s care with the person in comparison with the arrangements for the child’s care in the child’s previous family situation.

Example

The Secretary may consider that it is in the interests of the child for the person to care for the child if the primary claimant refuses to provide any care for the child or because the child is severely disabled and the primary claimant is incapable of providing for the child’s needs.

Subdivision 2.4.1.3 Exceptional circumstances for tertiary claims

2.35 Who can make a tertiary claim

(1) This Subdivision is made for subsection 54 (3) of the Act and prescribes the circumstances that are exceptional circumstances in which a tertiary claim can be made for a child.

(2) A person who satisfies the circumstances prescribed by this Subdivision can make a tertiary claim.

2.36 Exceptional circumstances for tertiary claimants — general

(1) The circumstances are as follows:

(a) the person has, and is likely to continue to have, care of the child for at least 26 weeks;

(i) the secondary claimant had care of the child in exceptional circumstances and those circumstances have ceased to apply; or

(ii) the secondary claimant is incapable of caring for the child and is likely to be incapable of caring for the child for at least 26 weeks; and

(d) if the person has not previously been the primary claimant for the child — the person is covered by subrule (2).

(2) For paragraph (1) (d), a person is covered by this subrule if any of the following apply:

(a) the primary claimant and the secondary claimant are incapable of caring for the child and are likely to be incapable of caring for the child for at least 26 weeks;

(b) the Secretary is satisfied on reasonable grounds that:

(i) the person became the primary carer of the child in special circumstances; and

(ii) it would be unreasonable for the primary claimant and secondary claimant to care for the child; and

(iii) it is in the interests of the child for the person to care for the child.

Note For what is unreasonable and in the interests of the child, see rule 2.37.

2.37 Unreasonableness and interests of child

(1) For subparagraph 2.36 (2) (b) (ii), it is unreasonable for a person to care for the child if the Secretary is satisfied on reasonable grounds that:

(a) there has been extreme family breakdown, or similar circumstances, in relation to the child’s family situation; or

(b) there is a serious risk to the child’s physical or mental wellbeing from violence, neglect or sexual abuse in the child’s family situation.

(2) For subparagraph 2.36 (2) (b) (iii), in considering what is in the interests of the child, the Secretary is to consider the arrangements for the child’s care with the person in comparison with the arrangements for the child’s care in the child’s previous family situation.

Example

The Secretary may consider that it is in the interests of the child for the person to care for the child if the primary claimant or secondary claimant refuse to provide any care for the child or because the child is severely disabled and neither the primary claimant nor the secondary claimant is able to provide for the child’s needs.

Part 3-2 Payment of instalments by employer

3.1 Definitions

In this Part:

PPL payment has the meaning given by rule 3.2.

3.2 Information required

For section 80 of the Act, the information that an employer must give to a person after paying 1 or more instalments (the PPL payment) to the person on a day is as follows:

(a) the employer’s name;

(b) the employer’s ABN;

(d) the period to which the PPL payment applies;

(e) the date on which the PPL payment was paid;

(f) if no other payments are made by the employer to the person for the period:

(i) the gross amount of the PPL payment and a statement identifying the PPL payment as parental leave pay; and

(ii) the net amount of the PPL payment; and

(iii) the amount of income tax withheld from the PPL payment;

(g) if other payments in addition to the PPL payment are made by the employer to the person for the period:

(i) the gross amount of the PPL payment and a statement identifying the PPL payment as parental leave pay; and

(ii) the total net amount paid to the person for the period; and

(iii) the total amount of income tax withheld for the period;

(h) if a deduction from the PPL payment is made under section 67 or 69 of the Act:

(i) the amount of each deduction; and

(ii) the name of the entity to whom the amount deducted is paid; and

(iii) the bank account details into which the amount deducted is paid.

3.3 Form of information

For section 80 of the Act, the information prescribed by rule 3.2 must be:

(a) in the form of a payslip or a separate written advice; and

(b) either:

(i) in electronic form; or

(ii) in hard copy.

3.4 Records to be made and kept

(1) For subsection 81 (1) of the Act, the kind of record that an employer must make and keep in relation to each person for whom an employer determination for the employer comes into force is a record that specifies:

(a) the PPL funding amounts received by the employer for the person and the PPL days for which the PPL funding amounts were paid; and

(b) the date of each PPL payment paid to the person and the period to which the PPL payment applies; and

(c) the gross amount of each PPL payment paid for the person and a statement identifying the PPL payment as parental leave pay; and

(d) if no other payments are made by the employer to the person for the period:

(i) the net amount of the PPL payment; and

(ii) the amount of income tax withheld from the PPL payment; and

(e) if other payments in addition to the PPL payment are made by the employer to the person for the period:

(i) the total net amount paid to the person for the period; and

(ii) the total amount of income tax withheld for the period; and

(f) the total amount deducted under section 67 and 69 of the Act from each PPL payment paid for the person.

(2) For subsection 81 (2) of the Act, the record must be:

(a) in the English language; and

(b) legible; and

Part 3-3 Payment of instalments by Secretary

3.5 Record of payment

(1) This rule applies if the Secretary pays 1 or more instalments (the PPL payment) to, or in relation to, a person on a day, in the circumstances mentioned in sections 84, 85, 86 or 87 of the Act.

(2) For section 89 of the Act, the Secretary must give the person the following information in connection with the PPL payment:

(a) information that the payment:

(i) is paid by the Secretary; and

(ii) is a PPL payment;

(b) the name of the person to whom the PPL payment is paid;

(d) the period for which a final PPL payment is expected to be paid;

(e) the frequency with which further PPL payments will be paid;

(f) the date on which the PPL payment is paid;

(g) the gross amount of the PPL payment;

(h) the net amount of the PPL payment;

(i) the total amount of income tax withheld from the gross amount of the ; PPL payment

(j) if a deduction from the PPL payment is made under section 67 or 69 of the Act:

(i) the amount of each deduction; and

(ii) the name of the entity to whom the amount deducted is paid; and

(iii) the bank account details into which the amount deducted is paid.

(3) The information is required to be given to the person:

(a) only once; and

(b) at the time the first PPL payment is made to the person.

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

Division 3A.2.1 Dad and partner pay is already payable to the person etc.

3A.1 Dad and partner pay is already payable to the person etc.

(1) This Division is made for subsection 115BF(2) of the Act and prescribes the circumstances in which a payability determination that dad and partner pay is payable to a person for a child may be made in respect of a different claim made by another person for the child.

(2) A person who satisfies the circumstances in this Division may be paid dad and partner pay, despite a first person already having received the payment.

(3) For a person to whom this rule applies, the circumstances are that the person:

(a) is an adoptive parent of the child;

(b) is the partner of an adoptive parent of the child in circumstances prescribed under rule 3A.13;

(d) has care of the child as the birth mother has relinquished care of the child because of a surrogacy arrangement under rule 3A.14.

Part 3A-3 Eligibility for dad and partner pay

Division 3A.3.1 When a DAPP claimant is eligible for dad and partner pay

Subdivision 3A.3.1.1 When a DAPP claimant is eligible for dad and partner pay

3A.2 When a DAPP claimant is eligible for dad and partner pay

This Subdivision is made for paragraph 115CB(4)(d) of the Act and prescribes the conditions that a person who is a DAPP claimant must satisfy to be eligible for dad and partner pay for a child.

Note Under subsection 115CB(4) of the Act, a DAPP claimant must satisfy the work test, the income test and the Australian residency test in addition to the conditions prescribed by this Subdivision.

3A.3 Conditions - DAPP claimants

(1) The conditions are that:

(a) the person:

(i) is caring for the child, or

(ii) satisfies the requirements of rule 3A.4 or rule 3A.5; and

(b) subject or subrule (1A), the person is not working.

(1A) For the purposes of subparagraph 3A.3(1)(b), disregard a person working in any of the following circumstances:

(a) if the person satisfies rule 3A.6 – a person working on a day referred to in paragraph 3A.6(b);

(b) if the person satisfies rule 3A.7 – a person working on a day referred to in rule 3A.7.

3A.4 Care requirements for DAPP claimants – temporary inability to care

For subparagraph 3A.3(1)(a)(ii), the requirements are as follows:

(a) the person will be, or previously was, caring for the child;

(b) the person is temporarily unable to be caring for the child due to circumstances beyond the person’s control, other than a circumstance mentioned in paragraph 3A.5(b);

(d) there is no determination in force under the Act that dad and partner pay is payable for the child to another person for the same day;

(e) the Secretary is satisfied that the person would have been caring for the child except for the person’s temporary inability to be the child’s carer.

3A.5 Care requirements for DAPP claimants – loss of care for child

For subparagraph 3A.3(1)(a)(ii), the requirements are that:

(a) the person previously was caring for the child; and

(b) an event occurs in relation to the child without the person’s consent that prevents the child being in the person’s care; and

(d) the person, or the person’s partner, is the child’s legal parent or is otherwise legally responsible for the child; and

(e) if the child is in the care of another legal parent – the person, or the person’s partner, has a court order or a parenting plan to the effect that the child is to live with the person or the person’s partner; and

(f) there is no determination in force under the Act that dad and partner pay is payable for the child to another person for the same day.

3A.6 Work requirements for DAPP claimants – recall to duty

For paragraph 3A.3(1A)(a), the requirements are that the person:

(a) is a defence force member or a law enforcement officer; and

(b) has performed paid work on a day because the person has been compulsorily recalled to duty.

3A.7 Work requirements for DAPP claimants – summons or other compulsory process

For paragraph 3A.3(1A)(b), the requirement is that the person has performed paid work on a day because the person has to comply with the requirements of a summons or other compulsory process to appear to give evidence or information or to produce documents or other things.

Division 3A.3.2 The work test

Subdivision 3A.3.2.1 Not working

3A.8 Purpose

This Subdivision is made for subsection 115CM(2) of the Act and prescribes circumstances in which a DAPP claimant is taken to be not working.

3A.9 What is taken to be not working

(1) A person is taken to be not working if:

(a) the person is on unpaid leave from their employer and during the period of unpaid leave, the person receives workers’ compensation payments or accident compensation payments from another body in relation to the person’s employment with their employer; or

(b) the person receives a top-up payment from their employer during or in relation to their DAPP period.

(2) For paragraph (1)(b), a top-up payment means a payment made by an employer to an employee that supplements a person’s dad and partner pay during their DAPP period.

Note The “top-up payment” may be an adjustment to partial or full income replacement.

Part 3A-4 Claims for dad and partner pay

Division 3A.4.1 Claims for dad and partner pay

Subdivision 3A.4.1.1 Prescribed circumstances for dad and partner pay claims

3A.10 Who can make a claim for dad and partner pay

(1) This Subdivision is made for paragraph 115DD(d) of the Act and prescribes the circumstances in which a claim for dad and partner pay for a child can be made.

(2) A person who satisfies the circumstances prescribed by this Subdivision

can make a claim for dad and partner pay.

3A.11 Prescribed circumstances – partner of a child’s primary carer when care arrangements change

(1) This rule applies to a person who is the partner of a child’s primary carer.

(2) For a person to whom this rule applies, the circumstances are that the person:

(a) has, and is likely to continue to have, care of the child for at least

26 weeks; and

(b) became, or will become, a carer of the child;

(i) before the child’s first birthday; or

(ii) for an adopted child – before the first anniversary of the day of placement of the child; and

(3) For paragraph (2)(c), a person is covered by this subrule if:

(a) the birth mother and their partner, or the adoptive parent and their partner is incapable of caring for the child and will be incapable, or is likely to be incapable, of caring for the child for at least 26 weeks;

(b) the Secretary is satisfied on reasonable grounds that:

(i) the person became the carer of the child in special circumstances; and

(ii) it would be unreasonable for the birth mother and their partner, or the adoptive parent and their partner to care for the child; and

(iii) it is in the interests of the child for the person to care for the child;

(c) the child was not entrusted to the care of the person, or to the care of the person’s partner, under a decision by a State or Territory child protection agency under legislation dealing with child protection in the State or Territory.

Note For the meaning of incapable of caring for a child, see rule 1.4.

For what is unreasonable and in the interests of the child, see rule 2.31.

(4) This rule does not apply to circumstances to which rule 3A.14 applies.

3A.12 Prescribed circumstance – partner of the biological father of the child

(1) This rule applies to a person who is the partner of the biological father of the child.

(2) For a person to whom this rule applies, the circumstances are that:

(a) the birth mother is no longer caring for the child;

(b) the person mentioned in subrule (1) has, and is likely to continue to have, care of the child for at least 26 weeks.

(3) For subrule (2), no longer caring means that the birth mother is not caring for the child for at least 26 weeks.

3A.13 Prescribed circumstance – partner of an adoptive parent of the child

(1) This rule applies to a person who is the partner of an adoptive parent of the child.

(2) For a person to whom this rule applies, the circumstances are that:

(a) the birth mother has relinquished care of the child;

(b) the person mentioned in subrule (1) has, and is likely to continue to have, care of the child for at least 26 weeks.

3A.14 Prescribed circumstance – surrogacy arrangements

(1) This rule applies to a person who is caring for a child born of a surrogacy arrangement.

(2) For a person to whom this rules applies, the circumstances are that the person:

(a) has, and is likely to continue to have, care of the child for at least 26 weeks; and

(b) became or will become, the child’s carer before the child’s first birthday; and

(3) A person is covered by this subrule if the Secretary is satisfied on

reasonable grounds that:

(a) the person is caring for a child born of a surrogacy arrangement; and;

(b) it is in the interests of the child for the person to care for the child.

(4) For paragraph 3A.14(3)(b), in considering what is in the interests of the child, the Secretary is to consider:

(a) whether the person intends to be the long-term carer of the child;

(b) whether the surrogate birth mother has relinquished care of the child;

(c) any other matter that the Secretary considers relevant to a proper consideration of what is in the interests of the child.

Part 3-4 Payment of dad and partner pay by Secretary

3A.15 Record of payment

(1) This rule is made for section 115EE of the Act and prescribes the information that the Secretary must give a person who has been paid dad and partner pay.

(2) The Secretary must give the person the following information in

connection with the dad and partner pay payment:

(a) information that the payment:

(i) is paid by the Secretary; and

(ii) is a dad and partner pay payment;

(b) the name of the person to whom the dad and partner pay payment is paid;

(d) the date on which the dad and partner pay payment is paid;

(e) the gross amount of the dad and partner pay payment;

(f) the net amount of the dad and partner pay payment;

(g) the total amount of income tax withheld from the gross amount of the dad and partner pay payment.

(3) The information is required to be given to the person:

(a) only once; and

(b) at the time the dad and partner pay payment is given to the person or as soon as possible after that date.

Part 4-1 Information gathering

Division 4.1.1 General

4.1 Purpose

This Part is made for subsection 128 (4) of the Act and sets out guidelines for the exercise of the Secretary’s power to give certificates for the purposes of paragraph 128 (1) (a) of the Act.

4.2 Definitions

(1) In this Part:

Department means the department that administers the Act.

family assistance law means any 1 or more of the following:

(a) the A New Tax System (Family Assistance) (Administration) Act 1999;

(b) the A New Tax System (Family Assistance) Act 1999;

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

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

Minister means:

(a) the Minister administering the Act; or

(b) a Minister of State administering any part of:

(i) the social security law; or

(ii) the family assistance law; or

(iii) the Human Services (Centrelink) Act 1997; or

(d) the Minister administering the Fair Work Act 2009; or

(e) the Minister administering the Human Services (Medicare) Act 1973.

public interest certificate means a certificate, under paragraph 128 (1) (a) of the Act, for the disclosure of relevant information.

relevant information means information acquired by an officer in the exercise of the officer’s powers, or the performance of the officer’s duties or functions, under the Act.

(2) In subrule (1), a reference to the social security law is a reference to:

(a) the Social Security Act 1991; and

(b) the Social Security (Administration) Act 1999; and

Division 4.1.2 Guidelines — public interest certificate

4.3 Matters to which Secretary must have regard

In giving a public interest certificate, the Secretary must have regard to:

(a) any situation in which the person to whom the information relates is, or may be, subject to physical, psychological or emotional abuse; and

(b) whether the person in such a situation may be unable to give notice of his or her circumstances because of:

(i) age; or

(ii) disability; or

(iii) social, cultural, family or other reasons.

4.4 When public interest certificate may be given

(1) The Secretary may give a public interest certificate for the disclosure of relevant information under this Part if:

(a) the information cannot reasonably be obtained from a source other than the Department; and

(b) the person to whom the information will be disclosed has sufficient interest in the information; and

(c) the Secretary is satisfied that the disclosure is for the purpose of rule 4.5, 4.6, 4.6A, 4.7, 4.8, 4.9, 4.11, 4.12, 4.13, 4.14, 4.15 or subrule 4.10 (1) or (2).

(2) A person has sufficient interest in the relevant information if:

(a) the Secretary is satisfied that, in relation to the purpose of the disclosure, the person has a genuine and legitimate interest in the information; or

(b) the person is a Minister.

4.5 Threat to life, health or safety

Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary to prevent, or lessen, a serious threat to the life, health or safety of an individual.

4.6 Enforcement of laws

(1) Relevant information may be disclosed for the purpose of this rule if:

(a) the disclosure is necessary:

(i) for the enforcement of a criminal law that relates to an indictable offence punishable by imprisonment of 2 years or more; or

(ii) for the enforcement of a law imposing a pecuniary penalty equivalent to 40 penalty units or more; or

(iii) to prevent an act that may have a significant adverse effect on the public revenue; or

(b) the disclosure relates to an offence or threatened offence:

(i) against a Commonwealth employee; or

(ii) against Commonwealth property; or

(iii) in Department premises; or

(iv) in Human Services Department premises.

(2) In this rule:

criminal law means:

(a) for Australia — a criminal law of the Commonwealth or of a State or Territory; and

(b) for a place outside Australia — a criminal law that may be recognised under an extradition arrangement to which Australia is a party.

penalty unit has the same meaning as in section 4AA of the Crimes Act 1914.

Note Subsection 4AA (1) of the Crimes Act 1914 provides that a penalty unit is $110.

4.6A Proceeds of crime order

(1) Relevant information may be disclosed to a Commonwealth, State or Territory law enforcement agency for the purpose of this rule if the disclosure is necessary for:

(a) the making, or proposed or possible making, of a proceeds of crime order; or

(b) supporting or enforcing a proceeds of crime order.

(2) In this rule proceeds of crime order means:

(a) an order under:

(i) Chapter 2 (the confiscation scheme) or Division 1, Part 3-1 of Chapter 3 (examination orders) of the Proceeds of Crime Act 2002; or

(ii) Part II (confiscation) or III (control of property liable to confiscation) of the Proceeds of Crime Act 1987; or

(iii) a State law or Territory law corresponding to a law referred to in subparagraph (i) or (ii); or

(iv) Division 3 of Part XIII (recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901; or

(b) an unexplained wealth order (within the meaning of the Proceeds of Crime Act 2002); or

(i) under a State law or Territory law; and

(ii) relating to unexplained wealth.

4.7 Mistake of fact

Relevant information may be disclosed for the purpose of this rule if:

(a) the disclosure is necessary to correct a mistake of fact in relation to the administration of a program of the Department; and

(b) either:

(i) the integrity of the program will be at risk if the mistake of fact is not corrected; or

(ii) the mistake of fact relates to a matter that was, or will be, published (whether by, or with or without the consent of, the person to whom the information relates).

4.8 Ministerial briefing

Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary:

(a) to brief a Minister so that the Minister can consider complaints or issues raised by or on behalf of a person with the Minister (in writing or orally), and respond to that person in relation to the complaints or issues; or

(b) to brief a Minister for a meeting or forum that the Minister is to attend; or

(c) to brief a Minister in relation to issues raised or proposed to be raised publicly by or on behalf of the person to whom the relevant information relates so that the Minister can respond by correcting a mistake of fact, a misleading perception or impression, or a misleading statement; or

(d) to brief a Minister about an error or delay on the part of the Human Services Department or the Fair Work Ombudsman; or

(e) to brief a Minister about an instance of an anomalous or unusual operation of the Act or the Fair Work Act 2009.

4.9 Missing person

Relevant information may be disclosed to a court, coronial inquiry, Royal Commission, department or any other authority of the Commonwealth or a State or Territory, for the purpose of this rule if:

(a) the information is about a reported missing person; and

(b) the disclosure is necessary:

(i) to assist the court, coronial inquiry, Royal Commission, department or authority of the Commonwealth or a State or Territory, in relation to the whereabouts of the missing person; or

(ii) to locate a person (including the missing person); and

4.10 Deceased person

(1) Relevant information may be disclosed for the purpose of this subrule if:

(a) the information is about a deceased person; and

(b) the disclosure:

(i) is necessary to assist a court, coronial inquiry, Royal Commission, department, or any other authority of the Commonwealth or a State or Territory, in relation to the death of the person; or

(ii) is necessary to help a person locate a relative or beneficiary of the deceased person; or

(iii) is necessary to help an individual or authority responsible for the administration of the estate of the deceased person in relation to the administration of the estate of the deceased person; and

(c) there is no reasonable ground to believe that the deceased person would not have wanted the relevant information disclosed.

(2) Relevant information may be disclosed for the purpose of this subrule if the information is to establish:

(a) the death of a person; or

(b) the place where the death of a person is registered.

4.11 Research, statistical analysis and policy development

Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary for the purpose of:

(a) research into (including evaluation or monitoring of, or reporting on) matters of relevance to a department that is administering any part of:

(i) the Act; or

(ii) the family assistance law; or

(iii) the social security law; or

(b) statistical analysis of those matters; or

4.12 Operation of the Family Responsibilities Commission

(1) Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary to assist in the performance of the functions, or the exercise of the powers, of the Family Responsibilities Commission.

(2) In this rule:

Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).

4.13 Reparations

Relevant information may be disclosed to a department or any other authority of the Commonwealth or a State or Territory for the purpose of this rule if the disclosure is necessary for the purpose of contacting the person in respect of their possible entitlement to compensation or other form of recompense in a reparation process.

4.14 Child protection agencies

(1) Relevant information may be disclosed to a Child Protection agency of a State or Territory for the purpose of this rule if the disclosure is necessary for the purpose of contacting the parent or relative in relation to the child.

(2) In this rule:

Child Protection agency means a government agency that carries out child protection functions.

4.15 Public Housing Administration

Relevant information may be disclosed to a department or any other authority of a State or Territory or an agent or contracted service provider of a department or authority for the purpose of this rule if:

(a) the information is about a resident, an applicant to become a tenant, or a tenant of public housing or other State or Territory managed housing; and

(b) the disclosure is necessary to facilitate rent calculation or rent deduction in relation to public housing, or State or Territory managed housing; or

(c) the disclosure is necessary to facilitate the administration of an income confirmation service in relation to public housing or State or Territory managed housing to avoid mistakes, underpayments and overpayments of rent, pensions, benefits and allowances; or

(d) the disclosure is necessary to investigate or take enforcement action in relation to public housing or State or Territory managed housing including to assist with an investigation into either:

(i) the misreporting of income by tenants of public housing or State or Territory managed housing; or

(ii) the unauthorised occupation of public housing or State or Territory managed housing by any person.

Part 4-3 Debt recovery

Division 4.3.1 Debt notices and interest on debts

4.16 Penalty interest rate

For subsection 180 (2) of the Act, the penalty interest rate is 3% per year.

Division 4.3.2 Penalty interest guidelines

4.17 Purpose of Division

For subsection 180 (3) of the Act, this Division prescribes guidelines for the operation of the provisions of the Act dealing with penalty interest.

4.18 Arrangement entered into after final debt payment day

(1) This rule applies to a person who is liable to pay interest on the outstanding amount of a debt under subsection 175 (4) of the Act.

(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person if, after the final debt payment day, the person:

(a) has entered into an arrangement under section 190 of the Act to pay the outstanding amount of the debt; and

(b) is making payments in accordance with the arrangement.

(3) If the Secretary makes a determination in the circumstance mentioned in subrule (2), the Secretary should:

(a) determine that interest is not payable on and after the day when the first payment made in accordance with the arrangement is received by, or on behalf of, the Commonwealth Services Delivery Agency; and

(b) specify, as a condition of the determination, that the person must continue to make payments in accordance with the arrangement.

(4) In this rule:

final debt payment day has the meaning given by subsection 175 (2) of the Act.

4.19 Payments resumed in accordance with existing arrangement or new arrangement entered into after failure day

(1) This rule applies to a person who is liable to pay interest on the outstanding amount of a debt under subsection 175 (6) of the Act.

(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person if, after the failure day:

(a) the person has resumed making payments in accordance with the arrangement mentioned in subsection 175 (5) (the existing arrangement); or

(b) the person:

(i) has entered into a new arrangement under section 190 of the Act (the new arrangement) to pay the outstanding amount of the debt; and

(ii) is making payments in accordance with the new arrangement.

(3) If the Secretary makes a determination in the circumstance mentioned in paragraph (2) (a), the Secretary should:

(a) determine that interest is not payable on and after:

(i) the day when the first payment made in accordance with the existing arrangement, after the failure day, is received by, or on behalf of, the Commonwealth Services Delivery Agency; or

(ii) if that day occurs before the liability day — the liability day; and

(b) specify, as a condition of the determination, that the person must continue to make payments in accordance with the existing arrangement.

(4) If the Secretary makes a determination in the circumstance mentioned in paragraph (2) (b), the Secretary should:

(a) determine that interest is not payable on and after:

(i) the day when the first payment made in accordance with the new arrangement is received by, or on behalf of, the Commonwealth Services Delivery Agency; or

(ii) if that day occurs before the liability day — the liability day; and

(b) specify, as a condition of the determination, that the person must continue to make payments in accordance with the new arrangement.

(5) In this rule:

failure day, for a person to whom subsection 175 (6) of the Act applies, means the day when the person failed to make the payment mentioned in paragraph 175 (5) (b) of the Act.

liability day, in relation to a person’s liability to pay interest on the outstanding amount of a debt under subsection 175 (6) of the Act, means the day mentioned in paragraph 175 (6) (a) or (b) of the Act from and including which the person is liable to pay interest on the outstanding amount.

4.20 Garnishee notice issued in respect of debt

(1) This rule applies to a person (the debtor) who is liable to pay interest on the outstanding amount of a debt under subsection 175 (4) or (6) of the Act.

(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person for a period if a notice (the garnishee notice) has been given to another person under subsection 184 (1) of the Act requiring the other person to pay to the Commonwealth an amount under paragraph 184 (2) (b) or (c) of the Act in relation to the debt.

(3) If the Secretary makes a determination in the circumstance mentioned in subrule (2), the Secretary should determine that interest is not payable only for the period:

(a) beginning on the day when the person who has been given the garnishee notice becomes liable to pay to the debtor the first payment to which the garnishee notice applies; and

(b) ending at the end of the day when the person who has been given the garnishee notice becomes liable to pay to the debtor the last payment to which the garnishee notice applies.

4.21 No capacity to pay debt

(1) This rule applies to a person who is liable to pay interest on the outstanding amount of a debt under subsection 175 (4) or (6) of the Act.

(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person for a period if, during the period, the person had or has no capacity to repay the debt.

Division 4.3.3 Waiver of debts – settlement of civil actions

4.22 Settlement interest

For the definition of settlement interest in subsection 198 (6) of the Act, the prescribed annual rate of interest is 5%.

Part 6-3 Extension of Act to persons who are not employees and employers

Division 6.3.1 Extension of Act to law enforcement officers — specified States and Territories

6.1 Application of Division 6.3.1

This Division applies in relation to the following States and Territories:

(a) New South Wales;

(b) Victoria;

(d) South Australia;

(e) Tasmania;

(f) Northern Territory.

6.2 Definitions for Division 6.3.1

In this Division:

Commissioner of Police, for a specified State or Territory, means the person holding the office of Commissioner of Police (however titled) in relation to the police force of that specified State or Territory.

designated law enforcement officer, in relation to a specified State or Territory, means:

(a) a member of the police force of that State or Territory; or

(b) a person appointed to a position for the purpose of being trained as a member of the police force of that State or Territory; or

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.

specified State or Territory means a State or Territory that is mentioned in rule 6.1.

6.3 Extension of Act to persons who are not employees and employers — law enforcement officers (specified States and Territories)

For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3-5 of the Act for the Commissioner of Police for a specified State or Territory and a person who is a designated law enforcement officer in relation to that State or Territory.

6.4 Modification of Act — law enforcement officers (specified States and Territories)

For a person who is a designated law enforcement officer in relation to a specified State or Territory, the Act is modified as follows:

(a) the Commissioner of Police for that State or Territory is taken to be the employer of the designated law enforcement officer;

(b) the designated law enforcement officer is taken to be an employee of the Commissioner of Police for that State or Territory (other than for paragraph 49(1)(a) of the Act);

(c) a reference to the employment or engagement of the designated law enforcement officer is taken to be a reference to that officer’s role, functions or duties, however described, as a designated law enforcement officer;

(d) paragraph 101(1)(e) is omitted.

Division 6.3.2 Extension of Act to law enforcement officers — Queensland

6.5 Definitions for Division 6.3.2

In this Division:

Crown means the Crown in right of the State of Queensland.

law enforcement officer of Queensland means:

(a) a member of the police force of Queensland; or

(b) a person appointed to a position for the purpose of being trained as a member of the police force of Queensland; or

6.6 Extension of Act to persons who are not employees and employers — law enforcement officers (Queensland)

For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3-5 of the Act for the Crown and a person who is a law enforcement officer of Queensland.

6.7 Modification of Act — law enforcement officers (Queensland)

For a person who is a law enforcement officer of Queensland, the Act is modified as follows:

(a) the Crown is taken to be the employer of a law enforcement officer of Queensland;

(b) a law enforcement officer of Queensland is taken to be an employee of the Crown (other than for paragraph 49(1)(a) of the Act);

(c) a reference to the employment or engagement of a law enforcement officer of Queensland is taken to be a reference to that officer’s role, functions or duties, however described, as a law enforcement officer of Queensland;

(d) paragraph 101(1)(e) is omitted.

Division 6.3.3 Extension of Act to law enforcement officers — Australian Federal Police

6.8 Definitions for Division 6.3.3

In this Division:

Australian Federal Police Commissioner means the Commissioner of the Australian Federal Police within the meaning of the Australian Federal Police Act 1979.

federal law enforcement officer means:

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

(b) a person appointed to a position for the purpose of being trained as a member of the Australian Federal Police; or

6.9 Extension of Act to persons who are not employees and employers — law enforcement officers (Australian Federal Police)

For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3-5 of the Act for the Australian Federal Police Commissioner and a person who is a federal law enforcement officer.

6.10 Modification of Act — law enforcement officers (Australian Federal Police)

For a person who is a federal law enforcement officer, the Act is modified as follows:

(a) the Australian Federal Police Commissioner is taken to be the employer of a federal law enforcement officer;

(b) a federal law enforcement officer is taken to be an employee of the Australian Federal Police Commissioner (other than for paragraph 49(1)(a) of the Act);

(c) a reference to the employment or engagement of a federal law enforcement officer is taken to be a reference to that officer’s role, functions or duties, however described, as a federal law enforcement officer;

(d) paragraph 101(1)(e) is omitted.

Division 6.3.4 Extension of Act to defence force members

6.11 Definitions for Division 6.3.4

In this Division:

Chief of the Defence Force is a reference to the Chief of the Defence Force appointed under section 9 of the Defence Act 1903.

Defence Force Ombudsman is a reference to the person who holds the office of the Defence Force Ombudsman under the Ombudsman Act 1976.

Fair Work Inspector has the same meaning as in the Fair Work Act 2009.

Fair Work Ombudsman is a reference to the person who holds the office of the Fair Work Ombudsman under the Fair Work Act 2009.

6.12 Extension of Act to persons who are not employees and employers — Defence force members

For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3-5 of the Act for the Chief of the Defence Force and a person who is a defence force member.

6.13 Modification of Act — Defence force members

For a person who is a defence force member, the Act is modified as follows:

(a) the Chief of the Defence Force is taken to be the employer of a defence force member;

(b) a defence force member is taken to be an employee of the Chief of the Defence Force (other than for paragraph 49(1)(a) of the Act);

(c) a reference to the employment or engagement of a defence force member is taken to be a reference to the service of a member of the defence force;

(d) the Fair Work Ombudsman is taken to be a reference to the Defence Force Ombudsman;

(e) the Fair Work Inspector is taken to be a reference to the Defence Force Ombudsman;

(f) paragraph 101(1)(e) is omitted.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

	o = order(s)
ad = added or inserted	Ord = Ordinance
am = amended	orig = original
amdt = amendment	par = paragraph(s)/subparagraph(s)
c = clause(s)	/sub‑subparagraph(s)
C[x] = Compilation No. x	pres = present
Ch = Chapter(s)	prev = previous
def = definition(s)	(prev…) = previously
Dict = Dictionary	Pt = Part(s)
disallowed = disallowed by Parliament	r = regulation(s)/rule(s)
Div = Division(s)
exp = expires/expired or ceases/ceased to have	reloc = relocated
effect	renum = renumbered
F = Federal Register of Legislation	rep = repealed
gaz = gazette	rs = repealed and substituted
LA = Legislation Act 2003	s = section(s)/subsection(s)
LIA = Legislative Instruments Act 2003	Sch = Schedule(s)
(md) = misdescribed amendment can be given	Sdiv = Subdivision(s)
effect	SLI = Select Legislative Instrument
(md not incorp) = misdescribed amendment	SR = Statutory Rules
cannot be given effect	Sub‑Ch = Sub‑Chapter(s)
mod = modified/modification	SubPt = Subpart(s)
No. = Number(s)	underlining = whole or part not
	commenced or to be commenced

Endnote 3—Legislation history

Name	Registration	Commencement	Application, saving and transitional provisions
Paid Parental Leave Rules 2010	24 December 2010 (see F2010L03428)	25 December 2010
Paid Parental Leave Amendment Rules 2011 (No. 1)	30 June 2011 (see F2011L01340)	1 July 2011	—
Paid Parental Leave Amendment Rules 2012 (No. 1)	17 October 2012 (see F2012L02054)	18 October 2012	—
Paid Parental Leave Amendment Rules 2012 (No. 2)	21 December 2012 (see F2012L02576)	1 January 2013	—
Paid Parental Leave Amendment Rules 2915	13 August 2015 (see F2015L01266)	14 August 2015	—
Social Services Laws (Present Value of Unpaid Amount – Interest Rate) Determination 2018	1 March 2018 (see F2018L00166)	1 March 2018	—

Endnote 4—Amendment history

Provision affected		How affected
Part 2-3
R. 2.2(1)(b).........………………………....		rs. 2012 F2012L02054;
R. 2.2(1A)....................……..…..		ad. 2012 F2012L02054;
R. 2.5……………………………………..…		am. 2012 F2012L02054;
R. 2.5(a)....................………………….….		am. 2011 F2011L01340;
R. 2.5A…………………………………..….		ad. 2012 F2012L02054;
R. 2.5B…………………………….……..…		ad. 2012 F2012L02054;
R. 2.8 (2)(e)…………………………..……		rs. 2012 F2012L02054;
R. 2.8(2A)………………………….........…		ad. 2012 F2012L02054;
R. 2.11…………………………………..….		am. 2012 F2012L02054;
R. 2.11(a).....................……..………		am. 2011 F2011L01340;
R. 2.11A………………………….…….…..		ad. 2012 F2012L02054;
R. 2.11B…………………………………....		ad. 2012 F2012L02054;
R. 2.12(2)(c)………………………………..		rs. 2012 F2012L02054;
R. 2.12(2A)………………………....………		ad. 2012 F2012L02054;
R. 2.15………………………………………		am. 2012 F2012L02054;
R. 2.15(a)…………………………..………		am. 2012 F2012L02054;
R. 2.16………………………………..…….		am. 2012 F2012L02054;
R. 2.16A…………………………………....		ad. 2012 F2012L02054;
R. 2.18(1)(c)…………………………….….		rs. 2012 F2012L02054;
R. 2.18(1A)………………………….…..….		ad. 2012 F2012L02054;
R. 2.21…………………………….………..		am. 2012 F2012L02054;
R. 2.21(a)..................…….		am. 2011 F2011L01340
R. 2.22………………………………………		am. 2012 F2012L02054;
R. 2.22A……………………….……………		ad. 2012 F2012L02054;
R. 2.28(1)…………………………………..		am. 2012 F2012L02054;
R. 2.28(3)…………………………………..		ad. 2012 F2012L02054;
R. 2.30………………………………………		rs. 2012 F2012L02054;
R. 2.31(1)…………………………………		am. 2012 F2012L02576;
R. 2.31(2)…………………………………		am. 2012 F2012L02576;
Part 3-3
R. 3.5(1)……………………………….……		am. 2012 F2012L02054;
Part 3A-2
	Division 3A.2.1
R. 3A.1…………………………………		ad. 2012 F2012L02576;
Part 3A-3 Division 3A.3.1 Subdivision 3A.3.1.1
R. 3A.2…………………………………		ad. 2012 F2012L02576;
R. 3A.3…………………………………		ad. 2012 F2012L02576;
R. 3A.4…………………………………		ad. 2012 F2012L02576;
R. 3A.5…………………………………		ad. 2012 F2012L02576;
R. 3A.6…………………………………		ad. 2012 F2012L02576;
R. 3A.7…………………………………		ad. 2012 F2012L02576;
Division 3A.3.2 Subdivision 3A.3.2.1
R. 3A.8…………………………………		ad. 2012 F2012L02576;
R. 3A.9…………………………………		ad. 2012 F2012L02576;
Part 3A-4 Division 3A.4.1 Subdivision 3A.4.1.1
R. 3A.10…………………………………		ad. 2012 F2012L02576;
R. 3A.11…………………………………		ad. 2012 F2012L02576;
R. 3A.12…………………………………		ad. 2012 F2012L02576;
R. 3A.13…………………………………		ad. 2012 F2012L02576;
R. 3A.14…………………………………		ad. 2012 F2012L02576;
Part 3-4
R. 3A.15…………………………………		ad. 2012 F2012L02576;
Part 4-1
R. 4.2(1)………………………….…………		am. 2012 F2012L02054; rs. 2012 F2012L02576; am F2015L01266
R, 4.4(1)(c)……………………………….. R. 4.6(1)(b)(iv)................... R. 4.6A…………………………………… R. 4.8(d)....................... R. 4.9…………………………………….. R. 4.10…………………………………… R. 4.11…………………………………… R. 4.15…………………………………… Part 6-3		rs: F2015L01266 am. 2012 F2012L02576 ad; F2015L01266 am. 2012 F2012L02576 am F2015L01266 am F2015L01266 rs; F2015L01266 rs; F2015L01266
Division 4.3.3
R. 4.22…………………………………		ad. 2018 F2018L00166;
Division 6.3.1
R. 6.1-6.3......................		rs. 2011 F2011L01340;
R. 6.4.........................		ad. 2011 F2011L01340;
Division 6.3.2
R. 6.5-6.7......................		ad. 2011 F2011L01340;
Division 6.3.3
R. 6.8-6.10.....................		ad. 2011 F2011L01340;
Division 6.3.4
R. 6.11-6.13....................		ad. 2011 F2011L01340;