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

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

A claim is not required for an amount of family tax benefit under section 58AA of the Family Assistance Act.

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

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

for payment of family tax benefit by instalment; or

for payment of family tax benefit for a past period; or

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

Form etc. of claim

To be effective:

a claim must:

be made in a form and manner; and

contain any information; and

be accompanied by any documents;

required by the Secretary; and

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

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

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

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

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

Requirement concerning bank account details

The requirement is that the claimant provide:

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

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

How details or statement to be given

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

Exemption from bank account requirement

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

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

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

Statement of tax file number

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

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

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

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

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

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

How statement to be given

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

Exemption from tax file number requirement

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

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

the claimant cannot obtain from the person:

the person’s tax file number; or

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

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

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

Statement of tax file number

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

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

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

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

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

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

How statement to be given

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

Exemption from tax file number requirement

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

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

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

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

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

the following apply:

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

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

Restriction where previous claim or instalment determination

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

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

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

the following apply:

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

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

Claim must relate to one income year and be made within a certain period

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

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

(b) the period does fall wholly within one income year (the relevant income year) but the claim is made after the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making the claim before the end of that first income year.

The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.

Claim must be accompanied by instalment claim in some circumstances

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subdivision B—Determination of claims etc.

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

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

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

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

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

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

This subsection applies if:

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

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

This subsection applies if:

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

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

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

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

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

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

one or more of subsections (2) to (3A) apply;

then the claim is taken never to have been made.

This subsection applies if:

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

the claimant has not lodged the return before the end of:

the first income year after the past period income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the return before the end of that first income year.

This subsection applies if:

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

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

that person has not lodged the return before the end of:

the first income year after the past period income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the income tax return before the end of that first income year.

This subsection applies if:

the claimant, or any other individual whose adjusted taxable income is relevant in working out the claimant’s entitlement to, or rate of, family tax benefit for the past period, is not required to lodge an income tax return for the past period income year; and

the claimant does not notify the Secretary of the amount of the claimant’s adjusted taxable income for the past period income year before the end of:

the first income year after the past period income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making that notification before the end of that first income year.

The further period referred to in subparagraph (2)(b)(ii), (3)(c)(ii) or (3A)(b)(ii) must end no later than the end of the second income year after the past period income year.

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

If:

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

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

the Secretary can only determine the claim concerned if:

within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.

Statement that an application for a tax file number is pending

If:

a TFN claim person makes a statement of the kind set out in subsection 8(5); or

a TFN substitution person makes a statement of the kind set out in subsection 8A(5);

the Secretary can only determine the claim concerned if:

within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:

the person has not applied for a tax file number; or

an application by the person for a tax file number has been refused; or

the person has withdrawn an application for a tax file number.

If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

If a person makes a statement of the kind set out in paragraph 7A(2)(b), the Secretary can only determine the claim concerned if, within 28 days after the claim is made, the person nominates, and provides details of, a bank account of a kind referred to in paragraph 7A(2)(a) into which instalments of family tax benefit are to be paid.

If, after the 28 days mentioned in subsection (1) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

If:

an individual makes a claim for payment of family tax benefit by instalment in respect of a child before the child is an FTB child of the claimant; and

the Secretary is satisfied that, at the time the determination would otherwise be made, the claimant would be likely to be eligible for family tax benefit in respect of the child if the child were to become an FTB child of the claimant;

the Secretary must not determine the claim for family tax benefit until the earlier of the following:

the time when the child becomes an FTB child of the claimant, or is stillborn;

28 days after the day that, on the day the claim is made, is the expected day on which the child to whom the claim relates will become an FTB child of the claimant.

This section applies if the claim is one for payment of family tax benefit by instalment.

If the Secretary is satisfied that the claimant is, at the time the Secretary makes the determination on the claim, eligible for family tax benefit in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act, the Secretary must determine that the claimant is entitled to be paid family tax benefit for each day on which the determination is in force at the daily rate at which the Secretary considers the claimant to be eligible.

Additional entitlement in subsection (2) cases

If:

the Secretary is satisfied as mentioned in subsection (2); and

(b) the Secretary is also satisfied that the claimant was eligible for family tax benefit in accordance with Subdivision A or C of during the whole or part of the period since the claim was made;Division 1 of Part 3 of the Family Assistance Act

the Secretary must determine that the claimant is entitled to be paid that amount of family tax benefit.

Instalments where bereavement eligibility—remaining FTB or regular care children

If the Secretary is satisfied that, at the time of making the determination on the claim:

the claimant is eligible for family tax benefit in accordance with section 31 of the Family Assistance Act; and

assuming subsection (4) of that section were disregarded, the claimant would be eligible for family tax benefit under Subdivision A of Division 1 of Part 3 of that Act;

the Secretary must determine that:

the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant to be eligible:

for each day on which the determination is in force that occurs during the period to which subsection 31(2) of that Act applies; and

for each day, before the determination came into force, that occurred during that period; and

the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant would be eligible, on the assumption in paragraph (b) of this subsection, for each day while the determination is in force that occurs after the last day on which the claimant is entitled to be paid family tax benefit in accordance with paragraph (c) of this subsection.

Instalments where bereavement eligibility—no remaining FTB or regular care children

If the Secretary is satisfied that, at the time of making the determination on the claim:

the claimant is eligible for family tax benefit in accordance with section 31 of the Family Assistance Act; and

assuming subsection (4) of that section were disregarded, the claimant would not be eligible for family tax benefit under Subdivision A of Division 1 of Part 3 of that Act;

the Secretary must determine that the claimant is entitled to be paid family tax benefit, at the rate at which the Secretary considers the claimant to be eligible:

for each day on which the determination is in force that occurs during the period to which subsection 31(2) of that Act applies; and

for each day, before the determination came into force, that occurred during that period.

If:

the claim is one for payment of family tax benefit for a past period; and

the Secretary is satisfied that the claimant was eligible for family tax benefit:

for the whole of the period in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act; or

for part of the period in accordance with Subdivision A of that Division and for the remainder of the period in accordance with section 31 of that Act;

the Secretary must determine that the claimant is entitled to be paid family tax benefit for the past period.

If:

the claim is one for payment of family tax benefit by single payment/in substitution because of the death of another individual; and

the Secretary is satisfied that the claimant is eligible for family tax benefit under section 32 or 33 of the Family Assistance Act;

the Secretary must determine that the claimant is entitled to be paid the family tax benefit.

If the Secretary is not satisfied as mentioned in section 16, 17 or 18, the Secretary must determine:

if the determination is on a claim for payment of family tax benefit by instalment—that the claimant is not entitled to be paid family tax benefit for each day on which the determination is in force; or

in any other case—that the claimant is not entitled to be paid family tax benefit for the past period or because of the death of the other individual, as the case requires.

If:

(a) an individual’s eligibility for, or rate of, family tax benefit is required to be determined for the purposes of this Division or Division 3; and

information about the amount of adjusted taxable income needed for the determination of the eligibility or rate is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and

the individual or, if the individual has died, another individual making a claim under this Division or the Secretary an estimate of the amount needed; andDivision 3 gives

the Secretary considers the estimate to be reasonable; and

since the estimate was given, the Secretary has not given the individual a notice under subsection 20A(2) or 20B(2) with a start day that has arrived or passed;

the Secretary may determine the individual’s eligibility for, or rate of, family tax benefit on the basis of the estimate.

If:

an estimate is given to the Secretary for the purposes of subsection (1); and

the Secretary does not consider the estimate reasonable;

the following paragraphs apply:

the eligibility or rate cannot be determined; and

if the determination of the eligibility or rate is required for the purposes of this Division, section 19 applies.

If:

an individual’s eligibility for, or rate of, family tax benefit is required to be determined for the purposes of this Division or Division 3; and

information about the amount of adjusted taxable income needed for the determination of the eligibility or rate is not available (for example, because the taxable income of the individual or another individual cannot be known until after the end of the relevant income year); and

the Secretary has given the individual a notice under subsection 20A(2) or 20B(2) with a start day that has arrived or passed; and

since the notice was given, the individual has not given the Secretary an estimate of the individual’s adjusted taxable income that the Secretary considers to be reasonable;

the Secretary may determine the individual’s eligibility for, or rate of, family tax benefit on the basis of the indexed estimate or indexed actual income stated in the notice (or, if the Secretary has given the individual more than one such notice—the notice with the most recent start day).

Note: Section 20C affects the meaning of this provision for members of couples.

If:

an individual’s rate of family tax benefit is required to be calculated for the purpose of making a determination under this Division; and

information about the amount of maintenance income needed for the calculation of the rate is not available;

the Secretary may determine the individual’s rate of family tax benefit on the basis of an estimate by the Secretary of the amount needed.

Note: If family tax benefit is worked out on the basis referred to in subsection (1), (2A) or (3), it is referred to in this Act as being worked out on an estimated income basis (see the definition of this term in subsection 3(1)).

The Secretary may calculate an indexed estimate for an individual under subsection (5), with a start day chosen by the Secretary, if:

the individual is a claimant, or the partner of a claimant, for family tax benefit; and

a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and

the determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of a reasonable estimate of the claimant’s adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant.

Note: Section 20C affects the meaning of paragraph (c) for members of couples.

If the Secretary calculates an indexed estimate for the individual, the Secretary may give the claimant a notice:

stating the indexed estimate for the individual; and

specifying the start day used in the Secretary’s calculation (which must be at least 14 days after the day on which the notice is given).

The Secretary must not give a notice under subsection (2) stating an indexed estimate for the individual with a start day in an income year if the Secretary has already given a notice under subsection (2) stating an indexed estimate for that individual with a start day in the same income year.

A notice given to a claimant under subsection (2) stating an indexed estimate for an individual has no effect if, before the start day specified in the notice for the indexed estimate, the Secretary gives the claimant a notice under subsection 20B(2) stating an indexed actual income for the same individual. Any such notice under subsection 20B(2) must specify a start day that is no earlier than the start day specified in the superseded notice.

Calculate an indexed estimate (which may be nil) for the individual by multiplying the individual’s current ATI number (see subsection (6)) by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

(6) For the purposes of subsection (5), the individual’s current ATI number is:

if, at the time of calculation, the Secretary has given the claimant a notice under subsection 20B(2) stating an indexed actual income for the individual with a start day that has not arrived—the indexed actual income stated in the notice; or

if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 20 (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act); or

if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 20 if the individual were the claimant (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act).

A notice under subsection (2) is not a legislative instrument.

The Secretary may calculate an indexed actual income for an individual under subsection (4), with a start day chosen by the Secretary, if:

the individual is a claimant for, or the partner of a claimant for, family tax benefit; and

a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and

the determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of an indexed estimate for the claimant or an indexed actual income for the claimant; and

since the claimant was last given a notice under subsection 20A(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for an individual, the claimant has not given the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

(e) the adjusted taxable income for an income year (actual income) of the individual (disregarding the effect for couples of clause 3 of Schedule 3 to the Family Assistance Act) becomes known to the Secretary and it is the most recent income year for which the individual’s actual income is known to the Secretary.

Note: Section 20C affects the meaning of paragraph (1)(c) for members of couples.

If:

the Secretary calculates an indexed actual income for the individual; and

the indexed actual income is greater than the individual’s current ATI number (see subsection (5));

the Secretary may give the claimant a notice:

stating the indexed actual income for the individual; and

specifying the start day used in the Secretary’s calculation (which must be at least 14 days after the day on which the notice is given).

A notice given to a claimant under subsection (2) stating an indexed actual income for an individual has no effect if, before the start day specified in the notice, the Secretary gives the claimant another notice under that subsection or a notice under subsection 20A(2) stating an indexed estimate or indexed actual income for the same individual. Any other such notice must specify a start day that is no earlier than the start day specified in the superseded notice.

Calculate an indexed actual income (which may be nil) for the individual by multiplying the actual income of the individual which became known to the Secretary by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

(5) For the purposes of paragraph (2)(b), the individual’s current ATI number is:

if, at the time of calculation, the Secretary has given the claimant a notice under subsection 20A(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for the individual with a start day that has not arrived—the indexed estimate or indexed actual income stated in the notice; or

if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 20 (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act); or

if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 20 if the individual were the claimant (disregarding the effect for couples of section 20C of this Act and clause 3 of Schedule 3 to the Family Assistance Act).

A notice under subsection (2) is not a legislative instrument.

Section applies to couples

This section applies in relation to any individual who is a member of a couple.

Family tax benefit Part A

For the purposes of the Family Assistance Act other than Part 4 of Schedule 1, any reference in this Act to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (3).

The reference is taken to be a reference to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with:

the most recent indexed estimate or indexed actual income for the individual’s partner (see subsection (6)); or

if there is no such indexed estimate or indexed actual income—a reasonable estimate of the adjusted taxable income of the individual’s partner (disregarding the effect of clause 3 of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.

Family tax benefit Part B

For the purposes of Part 4 of Schedule 1 to the Family Assistance Act, any reference in this Act to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (5).

The reference is taken to be a reference to eligibility for, or rate of, family tax benefit being determined or worked out on the basis of the lower of these:

the indexed estimate or indexed actual income for that individual or stated in that notice;

the most recent indexed estimate or indexed actual income for the individual’s partner (see subsection (6)) or, if there is no such indexed estimate or indexed actual income, a reasonable estimate of the adjusted taxable income of the individual’s partner (disregarding the effect of clause 3 of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.

If the amounts in paragraphs (a) and (b) are equal, the reference is taken to be a reference to:

if the individual is the claimant for family tax benefit—the amount in paragraph (a); or

if the individual is the partner of the claimant for family tax benefit—the amount in paragraph (b).

Most recent indexed estimate or indexed actual income for individual’s partner

(6) In subsections (3) and (5), the most recent indexed estimate or indexed actual income for the individual’s partner is the indexed estimate or indexed actual income for the individual’s partner stated in a notice given to:

if the individual is the claimant for family tax benefit—the individual; or

if the individual is the partner of the claimant for family tax benefit—the individual’s partner;

under subsection 20A(2) or 20B(2) with a start day that has arrived or passed (or, if the Secretary has given more than one such notice—the notice with the most recent start day).

Subject to this section, a determination under this Division comes into force when it is made and remains in force at all times afterwards.

A determination under paragraph 19(a) may be expressed to come into force on a day before it is made (but not earlier than the day the claim concerned is made).

Effect of later determination on certain instalment determinations

If, on a particular day, a determination is in force:

under section 16, where under the determination the claimant is not entitled to be paid family tax benefit on the particular day or any later day; or

under paragraph 19(a);

the determination ceases to be in force on the particular day if either:

another determination is made on the particular day on a claim by the claimant for payment of family tax benefit by instalment; or

another determination is made after the particular day on a claim by the claimant for payment of family tax benefit for a past period, where the particular day occurs within the past period.

Request for cessation of instalment determination

A determination in force under section 16 on a particular day ceases to be in force if:

under the determination, the claimant is entitled to be paid family tax benefit on the particular day or any later day; and

on the particular day, the claimant is not receiving a social security pension, social security benefit, service pension, income support supplement or veteran payment; and

on the particular day, the claimant advises the Secretary, in the form and manner required by the Secretary, that the claimant wishes the determination:

to cease to be in force from the particular day or from a specified later day; or

to have ceased to be in force at the end of the most recent instalment period before the particular day.

The determination ceases to be in force in accordance with the advice.

The Secretary must give notice of a determination under this Subdivision (except subsection 23(3B)) to the claimant, stating:

whether the claimant is entitled to be paid family tax benefit under the determination; and

if the claimant is so entitled:

if the claimant is entitled to be paid family tax benefit by instalment—the daily rate of the benefit, the days on which the entitlement arises and how it is to be paid; or

in any other case—the amount of the benefit and how it is to be paid; and

that the claimant may apply for review of the determination in the manner set out in Part 5.

The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.

(1) Subject to this section, if the claimant is entitled to be paid family tax benefit by instalment, the Secretary must, after each instalment period ending after the determination is made, pay the instalment amount to the claimant, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

Instalment amount and instalment period

In subsection (1):

instalment amount means the amount accruing for the days in the instalment period for which an entitlement to be paid family tax benefit arose under the determination.

instalment period means, subject to subsection (3):

the period of 14 days beginning on the day the Secretary considers appropriate in relation to the claimant, or class of claimants in which the claimant is included, and each successive period of 14 days; or

if the claimant:

is included in a class of persons specified under subsection (3A); and

is the subject of a determination in force under subsection (3B);

the period of 7 days beginning on the day the Secretary considers appropriate, and each successive period of 7 days.

Changing the day on which later instalment periods begin

The Secretary may change the day on which successive instalment periods are to begin in relation to a claimant or class of claimants. If the Secretary does so, the last instalment period before the first day on which the new instalment periods are to begin is shortened so that it ends immediately before that day.

Persons who may have 7-day instalment periods

The Minister may by legislative instrument specify a class of persons any of whom the Secretary may determine to have 7-day instalment periods.

The Secretary may determine that a claimant who is a member of a class of persons specified under subsection (3A) has instalment periods of 7 days.

The Secretary must revoke a determination made under subsection (3B) if he or she is satisfied that the claimant is no longer a member of a class of persons specified under subsection (3A).

(3D) Subsection (3C) does not limit the operation of subsection 33(3) of the Acts Interpretation Act 1901 in relation to subsection (3B) of this section.

Secretary may make direction as to the manner of making payments

The Secretary may direct that the whole or a part of an amount which is to be paid for the purposes of this section is to be paid in a different way from that provided for by subsection (1). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

Early payment of FTB instalment in particular cases

If the Secretary is satisfied that an instalment amount that would, apart from this subsection, be paid under this section on a particular day cannot reasonably be paid on that day, the Secretary may direct that the instalment amount be paid on an earlier day.

This section is subject to Subdivision CA of this Division, Part 4, Division 3 of Part 8B and sections 225 and 226.

If the claimant is entitled to be paid family tax benefit under a determination on a claim for payment of family tax benefit:

for a past period; or

by single payment/in substitution because of the death of another individual;

the Secretary must pay the amount to the claimant, at such time and in such manner as the Secretary considers appropriate.

This section is subject to Subdivision CA of this Division, Part 4, Division 3 of Part 8B and sections 225 and 226.

If an individual is entitled to be paid an amount of family tax benefit under the Secretary must pay the amount to the individual in a single lump sum, at such time and in such manner as the Secretary considers appropriate.section 58AA of the Family Assistance Act,

This section is subject to Subdivision CA of this Division, Part 4, Division 3 of Part 8B and sections 225 and 226.

If, after a claimant becomes entitled to be paid family tax benefit by instalment:

anything happens that causes the claimant to cease to be eligible for family tax benefit on the days for which the claimant will become entitled to be paid the benefit under the determination concerned, or to become eligible for a daily rate of family tax benefit that is less than that specified in the determination; or

the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under the Secretary that it has happened or is likely to happen.section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify

Penalty: Imprisonment for 6 months.

Strict liability applies to the element of an offence against subsection (1) that a notice is a notice given under section 25A.

If, after the Secretary determines under subsection 23(3B) that a claimant has instalment periods of 7 days:

anything happens that causes the claimant to cease to be a member of a class of persons specified under subsection 23(3A); or

the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under the Secretary that it has happened or is likely to happen.section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify

If a thing that is described in both subsections (1) and (3) happens or is likely to happen, subsection (1) applies in relation to the thing but subsection (3) does not.

The Secretary must approve a manner of notification that a claimant is to use when notifying the Secretary of a thing under section 25.

The Secretary must, by written notice, notify the claimant of the approved manner of notification.

If:

a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; or

a determination is in force under which the claimant is entitled to be paid family tax benefit for a past period;

the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, a written statement, in relation to a specified TFN determination person, of whichever of the kinds set out in subsection (2), (3) or (4) the claimant chooses.

Statement of tax file number

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

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

The second kind of statement that can be made is a statement by the TFN determination person that the person:

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

The third kind of statement that can be made is a statement by the TFN determination person that the person:

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

If:

a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and

the claimant has not nominated a bank account into which instalments of family tax benefit are to be paid;

the Secretary may require the claimant to give the Secretary, within 28 days of the requirement being made, details of a bank account maintained by the claimant alone, or jointly or in common with someone else, into which instalments of family tax benefit are to be paid.

Subdivision C—Variation of determinations

Non-compliance with request

If:

the Secretary makes a request under subsection 26(1); and

the claimant does not comply with the request within 28 days of the request being made;

then, subject to subsection (2), the consequence in subsection (5) applies.

Exemption from request under subsection 26(1)

The Secretary may determine that the consequence in subsection (5) does not apply if:

the TFN determination person concerned is or was the claimant’s partner; and

the claimant cannot obtain from the person:

the person’s tax file number; or

a statement by the person under subsection 26(3) or (4).

Statement made by TFN determination person under subsection 26(3)

If:

the Secretary makes a request under subsection 26(1); and

by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(3); and

the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has no tax file number;

the consequence in subsection (5) applies.

Statement made by TFN determination person under subsection 26(4)

If:

the Secretary makes a request under subsection 26(1); and

by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 26(4); and

the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (5) applies.

Statement made by TFN claim person under subsection 8(4)

If:

a TFN claim person has made a statement of the kind set out in subsection 8(4); and

a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment or for a past period; and

the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;

the consequence in subsection (5) applies.

Statement made by TFN claim person under subsection 8(5)

If:

a TFN claim person has made a statement of the kind set out in subsection 8(5); and

a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment or for a past period; and

the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (5) applies.

Variation of determination

For the purposes of subsection (1), (3), (4), (4A) or (4B), the consequence is that the Secretary may:

if the determination is one under which the claimant is entitled to be paid family tax benefit by instalment—vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place; or

if the determination is one under which the claimant is entitled to be paid family tax benefit for a past period—vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day in the past period.

Consequence of Secretary later becoming aware of tax file number

If:

under subsection (5), the Secretary varies the determination; and

the Secretary finds out the tax file number of the TFN determination person or TFN claim person, as the case requires:

if paragraph (5)(a) applies—before the end of the income year following the one in which the variation took effect; or

if paragraph (5)(b) applies—at any time after the variation took place;

the Secretary must vary the determination to undo the effect mentioned in subsection (5).

Non-compliance with requirement

If:

the claimant is subject to a requirement under section 26A; and

the claimant does not comply with the requirement within 28 days of the requirement being made;

then, subject to subsection (2), the consequence in subsection (3) applies.

Exemption from requirement under section 26A

The Secretary may determine that the consequence in subsection (3) does not apply if the Secretary considers that it is appropriate to exempt the claimant from the consequence.

Variation of determination

For the purposes of subsection (1), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

Consequence of Secretary later becoming aware of bank account details

If:

under subsection (3), the Secretary varies the determination; and

the Secretary finds out the bank account details of the claimant concerned before the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (3).

This section applies if:

a determination under section 16 or 17 is in force at, or was in force before, a particular time; and

(b) there are one or more days (the cancellation days) before the particular time in respect of which the following conditions are satisfied:

(i) the cancellation days occur in the income year (the cancellation income year) that began 2 years before the beginning of the income year in which the particular time occurs;

the claimant is entitled to be paid family tax benefit under the determination for the cancellation days;

the claimant, or the claimant’s partner at the particular time (if he or she was also the claimant’s partner at some time in the cancellation income year), or both, are required to lodge an income tax return for the cancellation income year but have not done so by the particular time;

(iv) by the particular time, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income for the cancellation income year of everyone to whom subparagraph (iii) applies.

Consequence of section applying

If this section applies, the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.

Consequence where income tax returns are later lodged

If:

(a) after the Secretary varies the determination under subsection (2) or (6), an assessment is made under the Income Tax Assessment Act 1936 for the cancellation income year for everyone (the taxpayers involved):

who was required to lodge an income tax return as mentioned in subparagraph (1)(b)(iii); and

in respect of whom an assessment had not been made before the determination was varied; and

(b) the Secretary is satisfied that the claimant was eligible for an amount (the recalculated amount) of family tax benefit for the cancellation days; and

subsection (4) (which is about when the claimant and the claimant’s partner separate after the determination is varied) does not apply;

the Secretary must again vary the determination so that it has the effect that, for the cancellation days, the claimant is entitled to be paid:

if each of the taxpayers involved lodged an income tax return with the Commissioner of Taxation:

before the end of the income year after the cancellation income year; or

within such further period as the taxpayer is allowed under Subdivision D of Division 1 of this Part;

the recalculated amount; or

in any other case—the lesser of:

the recalculated amount; and

the amount that the claimant was entitled to be paid before the variation under subsection (2) was made.

Consequence where claimant and partner separate after determination varied

After the Secretary varies the determination under subsection (2) or (6), the Secretary must again vary the determination if the following conditions are met:

(a) the claimant and the partner mentioned in subparagraph (1)(b)(iii) (the ex-partner) ceased to be members of the same couple during the further period that the Secretary has allowed, under Subdivision D of Division 1 of this Part, within which the ex-partner may lodge an income tax return;

at the time when the Secretary would vary the determination under this subsection, the claimant and the ex-partner are not members of the same couple;

if the claimant was required to lodge an income tax return for the cancellation income year:

the claimant has lodged an income tax return for the cancellation income year before the end of the first income year after the cancellation income year, or of the further period that the Secretary has allowed, under Subdivision D of Division 1 of this Part, within which the claimant may lodge an income tax return; and

(ii) an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant’s taxable income for the cancellation income year;

in any case—the ex-partner was required to lodge an income tax return for the cancellation income year but still had not done so by:

if paragraph (c) applies—the later of the time when the claimant and the ex-partner last ceased to be members of the same couple and the time when the assessment of the claimant’s taxable income is made; or

otherwise—the time when the claimant and the ex-partner last ceased to be members of the same couple;

(e) the Secretary is satisfied that the claimant was eligible for an amount (the recalculated amount) of family tax benefit for the cancellation days.

The Secretary must vary the determination under subsection (4) so that it has the effect that, for the cancellation days, the claimant is entitled to be paid the recalculated amount.

Consequence where claimant and ex-partner reconcile after separation

If:

after the Secretary varies the determination under subsection (4), the claimant and the ex-partner become members of the same couple again; and

the ex-partner has still not lodged an income tax return for the cancellation income year by the time when the claimant and the ex-partner become members of the same couple;

the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.

If:

(a) an individual is entitled to be paid an amount (the upfront amount) of family tax benefit under section 58AA of the Family Assistance Act because an amount of newborn supplement is added in relation to the individual under Division 1A of Part 5 of Schedule 1 to that Act for one or more days; and

a variation under subsection 28(2) or (6) of this Act has the effect that the individual never was entitled to family tax benefit for those days;

then the individual is taken not to have been entitled to the upfront amount.

If a variation under subsection 28(3) or (4) of this Act has the effect that the individual is entitled to be paid family tax benefit for those days, then subsection (1) of this section ceases to apply to the individual.

Subsection (2) does not prevent subsection (1) again applying to the individual.

This section applies if:

a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

the claimant gives the Secretary an estimate of the amount of adjusted taxable income needed by the Secretary to determine the claimant’s eligibility for, or rate of, family tax benefit; and

the Secretary does not consider the estimate to be reasonable.

Consequence of section applying

(2) If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

Consequence of later provision of reasonable estimate or Secretary finding out the actual amount

If:

under subsection (2), the Secretary varies the determination; and

either:

the claimant provides an estimate of the amount that the Secretary considers reasonable by the end of the income year following the one in which the variation took effect; or

the Secretary finds out the actual amount needed to determine the claimant’s eligibility for, or rate of, family tax benefit (whether from the claimant or someone else) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (2).

This section applies if:

a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment in respect of an individual; and

the individual is any of the following:

an FTB child of the claimant;

a regular care child who is also a rent assistance child of the claimant;

an individual in respect of whom an approved care organisation is the claimant; and

the individual makes a claim for one of the following:

a social security pension;

a social security benefit;

payments under a program included in the programs known as Labour Market Programs;

if the individual is aged 16 or more—payments under a prescribed educational scheme, unless subsection (1A) applies to the individual.

This subsection applies to an individual if:

the claim is for payments under the ABSTUDY scheme; and

the individual is seeking the payments to be paid on the basis of the individual:

(i) undertaking full-time study at a secondary school (within the meaning of the Student Assistance Act 1973); and

being, in accordance with the ABSTUDY scheme, a student approved to live away from home; and

boarding away from home for the purposes of attending the school.

Note: For undertaking full-time study, see subsection 3(1) of the Family Assistance Act.

Consequence of section applying if the individual is the claimant’s only FTB or regular care child or the claimant is an approved care organisation

If:

this section applies because the individual is an individual in respect of whom the claimant is an approved care organisation; or

this section applies because the individual is the only individual who is either an FTB child, or a regular care child who is a rent assistance child, of the claimant;

the Secretary must vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day on which the determination was or will be in force, after the end of the last instalment period before the variation takes place or from a later day determined by the Secretary.

Consequence of section applying if the individual is not the claimant’s only FTB or regular care child

If:

this section applies because the individual is an FTB child, or a regular care child who is also a rent assistance child, of the claimant; and

the individual is not the claimant’s only FTB child, or regular care child who is also a rent assistance child;

the Secretary must vary the determination so that it has the effect that the daily rate of family tax benefit for which the claimant is entitled under the determination does not take into account the child who has made a claim for a payment listed in paragraph (1)(c). The determination takes effect from the day after the end of the claimant’s last instalment period before the variation takes place or from a later day determined by the Secretary.

Consequence of later rejection etc. of individual’s claim

If:

under subsection (2) or (3), the Secretary varies the determination; and

(b) the individual’s claim for the payment is rejected, withdrawn or taken not to have been made;

the Secretary must vary the determination to undo the effect mentioned in subsection (2) or (3), as the case may be.

This section applies if:

a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

the Secretary, in order to make a decision about the eligibility, or daily rate of eligibility, of the claimant for family tax benefit on either or both of the following:

the particular day or any later day;

any day or days in the past when the determination was in force;

requires the claimant or the claimant’s partner under Division 1 of Part 6 to give information or produce documents; and

the claimant or the claimant’s partner refuses or fails to comply with the requirements.

Consequences of section applying

If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

Without limiting subsection (2), if the information or documents required relate to:

the claimant’s eligibility for rent assistance; or

the amount of rent assistance to be added in calculating the claimant’s rate of family tax benefit;

the Secretary may vary the determination so as to establish a different rate of family tax benefit that does not have the amount of rent assistance added for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place or from a later day determined by the Secretary.

Without limiting subsection (2), if the Secretary considers that the information or document is relevant to whether an individual is a senior secondary school child, the Secretary may vary the determination so as to disregard the individual for the purposes of working out whether the claimant is entitled to be paid family tax benefit, and if so the rate at which it is to be paid:

for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place; or

for any later day on which the determination was or will be in force specified by the Secretary in the variation.

Consequence of later provision of information or documents

If:

under subsection (2), (2A) or (2B), the Secretary varies the determination; and

the claimant gives the information or produces the documents mentioned in paragraph (1)(b) by the end of the income year following the one in which the variation took effect;

the Secretary must vary the determination to undo the effect mentioned in subsection (2), (2A) or (2B).

This section applies if:

a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

the Secretary has reason to believe that the claimant’s address has changed since it was last known to the Secretary but the Secretary does not know the claimant’s new address; and

the Secretary, after taking reasonable steps, is not able to find out whether the claimant’s address has changed or, if it has, what the claimant’s new address is.

Consequence of section applying

If this section applies, the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

Consequence of Secretary later becoming aware of address etc.

If:

under subsection (2), the Secretary varies the determination; and

before the end of the income year following the one in which the variation took effect, the Secretary finds out:

that the claimant’s address has not changed; or

what the claimant’s new address is;

the Secretary must vary the determination to undo the effect mentioned in subsection (2).

This section applies if:

a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

the claimant leaves Australia without having notified the Secretary that the claimant proposed to leave or is leaving; and

less than 6 weeks have passed since the claimant left Australia.

The Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place.

If the Secretary varies the determination under subsection (2), and later obtains information relating to the question whether the claimant is entitled to be paid family tax benefit for a day described in that subsection, the Secretary must vary the determination to undo the effect mentioned in that subsection.

This section applies if:

a determination is in force on a particular day under which the claimant is entitled to be paid family tax benefit by instalment; and

an FTB child, or a regular care child who is also a rent assistance child, of the claimant leaves Australia without the claimant having notified the Secretary that the child will leave or is leaving; and

less than 6 weeks have passed since the child left Australia.

The Secretary may vary the determination so that, for any day on which the determination was or will be in force after the end of the last instalment period before the variation takes place, the determination:

has the effect that the claimant is not entitled to be paid family tax benefit, if the conditions in paragraphs (1)(b) and (c) are met in relation to:

each FTB child of the claimant; and

each regular care child who is also a rent assistance child of the claimant; or

has the effect that the daily rate of family tax benefit for which the claimant is entitled under the determination does not take into account the FTB child or regular care child, if the conditions in paragraphs (1)(b) and (c) are not met in relation to:

each FTB child of the claimant; and

each regular care child who is also a rent assistance child of the claimant.

If the Secretary:

varies the determination under subsection (2); and

later obtains information relating to the question whether the claimant is entitled to be paid family tax benefit for the FTB child or regular care child for a day described in that subsection or the question what is the claimant’s daily rate of family tax benefit for the day;

the Secretary must vary the determination to undo the effect mentioned in that subsection relating to the day.

If:

a determination is made under section 16 that a claimant is entitled to be paid family tax benefit by instalment; and

after the determination is made an event occurs; and

when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination immediately after the occurrence, he or she would conclude:

that the claimant was no longer eligible for family tax benefit; or

that the claimant was still so eligible but that the rate of family tax benefit should be a different rate to the rate previously determined;

the Secretary must, subject to subsection (2):

if subparagraph (c)(i) applies—vary the determination so that the claimant is not entitled to be paid family tax benefit with effect from the date of occurrence; and

if subparagraph (c)(ii) applies—vary the determination so as to establish the different rate with effect from the date of occurrence.

For the purpose of subsection (1), the occurrence of an event includes the expiration of a period of time if the expiration of that period is relevant to the operation of this Act.

The reference in subsection (1) to the occurrence does not include the occurrence of any event:

that causes the claimant to provide a revised estimate of the claimant’s adjusted taxable income to the Secretary; or

that causes the Secretary to revise an estimate of the claimant’s maintenance income;

unless:

the event also affects the claimant’s eligibility for family tax benefit, or the rate of family tax benefit payable to the claimant, for a reason other than the amount of the claimant’s adjusted taxable income or maintenance income; or

the event is the claimant’s becoming, or ceasing to be, a member of a couple.

If:

the Secretary under paragraph (1)(d) varies a determination in relation to an individual because of subsection 24(1) of the Family Assistance Act; and

the child concerned comes to Australia within the period of 13 weeks beginning on the day after the end of:

the 6-week period referred to in subsection 24(1) of the Family Assistance Act; or

if that 6-week period has been extended under subsection 24(7) or (9) of the Family Assistance Act—that period as so extended; and

the Secretary is satisfied that the individual is eligible for family tax benefit on the day the child comes to Australia;

then the Secretary must vary the determination so that the individual is entitled to be paid family tax benefit with effect from the date of the child coming to Australia.

Note: The individual does not have to make another claim for family tax benefit.

If:

the Secretary under paragraph (1)(d) varies a determination in relation to an individual because of subsection 24(4) of the Family Assistance Act; and

the individual returns to Australia within the period of 13 weeks beginning on the day after the end of:

the 6-week period referred to in subsection 24(4) of the Family Assistance Act; or

if that 6-week period has been extended under subsection 24(7), (9) or (10) of the Family Assistance Act—that period as so extended; and

the Secretary is satisfied that the individual is eligible for family tax benefit on the day the individual returns to Australia;

then the Secretary must vary the determination so that the individual is entitled to be paid family tax benefit with effect from the date of the individual’s return to Australia.

Note: The individual does not have to make another claim for family tax benefit.

Subsections (1C) and (1D) do not limit any later application of subsection (1) in relation to the determination.

Example: The Secretary under subsection (1D) varies the determination so that the individual is entitled to be paid family tax benefit.

The individual remains in Australia for 8 weeks, but then leaves Australia again for more than 6 weeks.

Because of subsection 24(4) of the Family Assistance Act, the Secretary may, under paragraph (1)(d) of this section, vary the determination again so that the individual is not entitled to be paid family tax benefit.

Beneficial variations only to have limited effect

If:

(a) the Secretary does not become aware of the occurrence of the event until after the end of the income year (the second income year) following the one in which the event occurred; and

the claimant did not notify the Secretary of the occurrence of the event before the end of the second income year; and

apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant’s entitlement to family tax benefit under the determination;

the Secretary must vary the determination so that it has that effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.

Sections 27, 27A, 28, 28A, 28B, 30, 30A and 30B and subsection 29(2) variations prevail

If:

when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 30, 30A or 30B or subsection 29(2); and

the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;

the variation under that section or subsection prevails over the variation under this section.

If:

a determination is in force on a particular day under which a claimant is entitled to be paid family tax benefit by instalment; and

the determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of a reasonable estimate of the claimant’s adjusted taxable income, an indexed estimate for the claimant or an indexed actual income for the claimant; and

the claimant provides the Secretary with a revised estimate of the claimant’s adjusted taxable income for the current income year or the next income year that is not attributable to an event mentioned in paragraph 31(1B)(c) or (d); and

the Secretary considers the revised estimate to be reasonable; and

if the claimant’s rate of family tax benefit were calculated using the revised estimate—a new rate of family tax benefit would be required;

the Secretary must vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of that revised estimate.

Note: Section 20C affects the meaning of paragraph (1)(b) for couples.

A variation of a determination under subsection (1) has effect:

if it results in an increase in the claimant’s rate of family tax benefit:

unless subparagraph (ii) applies—from the day on which the revised estimate was provided to the Secretary; or

if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i)—from that first day; and

if it results in a decrease (including a decrease to nil) in the claimant’s rate of family tax benefit:

unless subparagraph (ii) or (iii) applies—from the day on which the revised estimate was provided to the Secretary; or

if the first day of the income year to which the revised estimate relates occurs after the day identified in subparagraph (i) and subparagraph (iii) does not apply—from that first day; or

if the day after the end of the last instalment period before the variation takes place occurs after the days identified in subparagraphs (i) and (ii)—from the day first-mentioned in this subparagraph.

If:

when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 30, 30A or 30B or subsection 29(2); and

the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;

the variation under that section or subsection prevails over the variation under this section.

If:

a determination is in force on a particular day under which a claimant is entitled to be paid family tax benefit by instalment; and

that determination includes a determination of the claimant’s rate of family tax benefit worked out on the basis of an estimate of the claimant’s maintenance income in a particular income year; and

the Secretary, at any time before or during that income year, makes a revised estimate of that amount that is attributable to the occurrence of an event other than an event to which paragraph 31(1B)(c) or (d) applies; and

if the claimant’s rate of family tax benefit were calculated using the revised estimate—a new rate of family tax benefit would be required;

the Secretary must vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of that revised estimate.

A variation of a determination under subsection (1) has effect from a day determined by the Secretary, which must not be earlier than either of the following:

the day after the end of the last instalment period before the variation takes place;

the first day of the income year to which the revised estimate relates.

If:

when the variation under this section takes place, a variation of the determination is in force under section 27, 27A, 28, 28A, 28B, 30, 30A or 30B or subsection 29(2); and

the variation under that section or subsection has effect for any period when the variation under this section would have the effect that the claimant is entitled to be paid family tax benefit;

the variation under that section or subsection prevails over the variation under this section.

If:

a determination is in force under which a claimant is entitled to be paid family tax benefit by instalment; and

the Secretary gives the claimant a notice under subsection 20A(2); and

the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

if the claimant’s rate of family tax benefit were calculated using the indexed estimate stated in the notice—a new rate of family tax benefit would be required;

the Secretary may vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of the indexed estimate stated in the notice.

Note: Section 20C affects the meaning of this provision for members of couples.

The variation has effect:

from the start day specified in the notice for the indexed estimate; or

if the variation is made after that start day—from the later of the start day and the first day of the instalment period in which the variation is made.

If:

a determination is in force under which a claimant is entitled to be paid family tax benefit by instalment; and

the Secretary gives the claimant a notice under subsection 20B(2); and

the claimant does not, before the start day specified in the notice, give the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

if the claimant’s rate of family tax benefit were calculated using the indexed actual income stated in the notice—a new rate of family tax benefit would be required;

the Secretary may vary the determination so that the claimant’s rate of family tax benefit is determined on the basis of the indexed actual income stated in the notice.

Note: Section 20C affects the meaning of this provision for members of couples.

The variation has effect:

from the start day specified in the notice for the indexed actual income; or

if the variation is made after that start day—from the later of the start day and the first day of the instalment period in which the variation is made.

This section applies if:

a determination is in force in an income year under which a claimant is entitled to be paid family tax benefit by instalment; and

one of the following applies:

a variation of the determination under subsection 31A(1) has effect on a day in the income year that is after 1 July;

a variation of the determination under subsection 31B(1) has effect on a day in the income year that is after 1 July;

a variation of the determination under subsection 31C(1) has effect on a day in the income year that is after 1 July;

a variation of the determination under subsection 31D(1) has effect on a day in the income year that is after 1 July;

on a day in the income year, the claimant provides the Secretary with a revised estimate of the claimant’s adjusted taxable income for the income year that does not result in a variation of the determination under subsection 31A(1);

on a day in the income year that is after 1 July, the Secretary makes a revised estimate of the claimant’s maintenance income that does not result in a variation of the determination under subsection 31B(1);

the determination ceases to be in force in the income year and another determination comes into force in that income year under which the claimant is entitled to be paid family tax benefit by instalment or family tax benefit for a past period that falls wholly within that income year.

The Secretary must apply the following method statement to work out if there is a daily overpayment rate:

Method statement

Step 1. Work out the total amount of family tax benefit the claimant is or was entitled to be paid during the period beginning at the start of the income year and ending at the end of the day before the applicable day.

Step 2. Work out the total amount of family tax benefit the claimant would have been entitled to be paid during that period if the claimant’s rate of family tax benefit were calculated using:

if subparagraph (1)(b)(i) applies—the revised estimate concerned; or

if subparagraph (1)(b)(ii) applies—the revised estimate concerned; or

if subparagraph (1)(b)(iii) applies—the indexed estimate concerned; or

if subparagraph (1)(b)(iv) applies—the indexed actual income concerned; or

if subparagraph (1)(b)(v) applies—the revised estimate concerned; or

if subparagraph (1)(b)(vi) applies—the revised estimate concerned; or

if subparagraph (1)(b)(vii) applies—the estimate of the claimant’s adjusted taxable income for the income year, and the estimate of the claimant’s maintenance income in that income year, that were used in determining the claimant’s rate of family tax benefit under the other determination referred to in that subparagraph.

Step 3. Take the amount worked out at step 2 away from the amount worked out at step 1.

Step 4. If the amount worked out at step 3 is greater than zero, work out the number of days during the period beginning on the applicable day and ending at the end of the last day in the income year.

Step 5. Work out the daily overpayment rate by dividing the amount worked out at step 3 by the number of days worked out at step 4, and rounding the result of the division to the nearest cent (rounding 0.5 cents upwards).

If there is a daily overpayment rate, the Secretary must vary the applicable determination so that the claimant’s daily rate of family tax benefit for the period beginning on the applicable day and ending at the end of the last day in the income year is reduced (but not below nil) by that daily overpayment rate.

(3A) For the purposes of subsection (3), the applicable determination is:

if subparagraph (1)(b)(i), (ii), (iii), (iv), (v) or (vi) applies—the determination referred to in paragraph (1)(a); or

if subparagraph (1)(b)(vii) applies—the other determination referred to in that subparagraph.

This section may have more than one application in relation to the claimant during the income year.

In this section:

applicable day means:

if subparagraph (1)(b)(i), (ii), (iii) or (iv) applies—the day on which the variation concerned has effect; and

if subparagraph (1)(b)(v) or (vi) applies—the first day of the instalment period in which the Secretary applies the method statement because of that subparagraph applying; and

if subparagraph (1)(b)(vii) applies—the first day in the income year for which the claimant’s entitlement to be paid family tax benefit arose under the other determination referred to in that subparagraph.

The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.

The variation is not ineffective by reason only that the requirements of subsection (1) are not complied with.

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

If the Secretary varies a determination under subsection 28(2) in relation to a claimant, the Secretary must not make a payment of family tax benefit (worked out on an estimated income basis) to:

the claimant during a prohibited period for the claimant (see section 32AB); and

(b) the claimant’s partner (if any) (the relevant partner) mentioned in subparagraph 28(1)(b)(iii) during a prohibited period for that partner (see section 32AC).

This section is subject to section 32AE.

First kind of prohibited period

There is a prohibited period for the claimant if:

the claimant was required to lodge an income tax return for the cancellation income year concerned but the claimant has not done so by the end of the grace period; or

the claimant and the relevant partner are members of the same couple at the end of the grace period, and that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.

Note: For relevant partner see section 32AA. For grace period see subsection (8).

However, there is not a prohibited period for the claimant under subsection (1) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.

The prohibited period referred to in subsection (1):

begins on the day after the end of the grace period; and

ends when subsection (3), (4), (4A) or (7) applies (whichever occurs first).

This subsection applies if:

if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return; and

if the relevant partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return.

This subsection applies if:

the claimant and the relevant partner cease to be members of the same couple at any time after the end of the grace period; and

if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding at the end of the grace period; and

at a time after the end of the grace period, no amount of that debt is outstanding.

Second kind of prohibited period

There is a prohibited period for the claimant if:

the claimant and the relevant partner cease to be members of the same couple on or after the day the variation mentioned in section 32AA is made; and

(b) the claimant and that partner become members of the same couple again on a day (the applicable day) that is after the end of the period applicable under paragraph (a) of the definition of grace period in subsection (8); and

that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.

However, there is not a prohibited period for the claimant under subsection (5) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).

The prohibited period referred to in subsection (5):

begins on the day determined by the Secretary (which must not be earlier than the applicable day); and

ends when:

the relevant partner lodges an income tax return for the cancellation income year concerned; or

the claimant and the relevant partner cease to be members of the same couple again; or

subsection (6A) or (7) applies;

whichever occurs first.

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and

at a time on or after that day, no amount of that debt is outstanding.

Prohibited period may end in special circumstances

This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Grace period

In this section:

grace period means:

the period of 75 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the variation mentioned in section 32AA is made; or

if subsection (7) has applied in relation to a previous prohibited period—the period of 14 days, or such longer period as the Secretary determines under subsection (9), beginning on the day the determination mentioned in subsection (7) is made.

Note: The effect of paragraph (b) of the definition is that there may be another prohibited period for the claimant under subsection (1).

(9) The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of grace period in subsection (8) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determinations are not legislative instruments

A determination made under paragraph (6)(a) or subsection (7) or (9) is not a legislative instrument.

First kind of prohibited period

There is a prohibited period for the relevant partner if:

the claimant and that partner are members of the same couple at the end of the grace period; and

either or both of the following apply:

the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period;

that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the end of the grace period.

Note: For relevant partner see section 32AA. For grace period see subsection (10).

However, there is not a prohibited period for the relevant partner under subsection (1) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.

The prohibited period referred to in subsection (1):

begins on the day after the end of the grace period; and

ends when subsection (3), (4), (4A) or (9) applies (whichever occurs first).

This subsection applies if:

if that partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return; and

if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

This subsection applies if the claimant and that partner cease to be members of the same couple at any time after the end of the grace period.

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding at the end of the grace period; and

at a time after the end of the grace period, no amount of that debt is outstanding.

Second kind of prohibited period

There is a prohibited period for the relevant partner if:

the claimant and that partner cease to be members of the same couple on or after the day the variation mentioned in section 32AA is made; and

(b) the claimant and that partner become members of the same couple again on a day (the applicable day) that is after the end of the period applicable under paragraph (a) of the definition of grace period in subsection (10); and

either or both of the following apply:

the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day;

that partner was required to lodge an income tax return for the cancellation income year concerned but has not done so by the applicable day.

However, there is not a prohibited period for the relevant partner under subsection (5) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).

The prohibited period referred to in subsection (5):

begins on the day determined by the Secretary (which must not be earlier than the applicable day); and

ends when subsection (7), (8), (8A) or (9) applies (whichever occurs first).

This subsection applies if:

if that partner was required to lodge an income tax return for the cancellation income year concerned—that partner lodges or has lodged the return; and

if the claimant was required to lodge an income tax return for the cancellation income year concerned—the claimant lodges or has lodged the return.

This subsection applies if the claimant and that partner cease to be members of the same couple again.

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and

at a time on or after that day, no amount of that debt is outstanding.

Prohibited period may end in special circumstances

This subsection applies if the Secretary, by writing, determines that the prohibited period concerned ends. The Secretary may make the determination only if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Grace period

In this section:

grace period means:

the period of 75 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the variation mentioned in section 32AA is made; or

if subsection (9) has applied in relation to a previous prohibited period—the period of 14 days, or such longer period as the Secretary determines under subsection (11), beginning on the day the determination mentioned in subsection (9) is made.

Note: The effect of paragraph (b) of the definition is that there may be another prohibited period for the relevant partner under subsection (1).

(11) The Secretary may, by writing, determine a period for the purposes of paragraph (a) or (b) of the definition of grace period in subsection (10) if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determinations are not legislative instruments

A determination made under paragraph (6)(a) or subsection (9) or (11) is not a legislative instrument.

If:

(a) on or after the day the variation mentioned in new partner) is not the relevant partner; andsection 32AA is made, the claimant becomes a member of a couple and the claimant’s partner (the

the claimant was required to lodge an income tax return for the cancellation income year concerned but has not done so when the claimant becomes a member of that couple;

then, during a prohibited period for the claimant and while the claimant and the new partner are members of the same couple, the Secretary must not make a payment of family tax benefit (worked out on an estimated income basis) to the new partner.

Note: For relevant partner see section 32AA.

This section applies if 3 or more variations under subsection 28(2) have been made in relation to a claimant.

Claimant

The claimant is not entitled to be paid family tax benefit (worked out on an estimated income basis) for a period if, throughout that period, both subsections (3) and (4) of this section apply in relation to one or more of the cancellation income years concerned.

Note 1: For cancellation income year see subsection 28(1).

Note 2: Subsection (8) creates an exception to subsection (2).

This subsection applies in relation to a cancellation income year if either or both of the following apply:

if the claimant was required to lodge an income tax return for that year—the claimant has not lodged that return;

if the claimant is a member of a couple and the claimant’s partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year—that partner has not lodged that return.

Note: For relevant partner see section 32AA.

This subsection applies in relation to a cancellation income year if a debt arose under section 71 as a result of the variation concerned and an amount of that debt is outstanding.

Partner

If the claimant is a member of a couple, the claimant’s partner is not entitled to be paid family tax benefit (worked out on an estimated income basis) for a period if, throughout that period, both subsections (6) and (7) of this section apply in relation to one or more of the cancellation income years concerned.

Note 1: For cancellation income year see subsection 28(1).

Note 2: Subsection (9) creates an exception to subsection (5).

This subsection applies in relation to a cancellation income year if either or both of the following apply:

if the claimant was required to lodge an income tax return for that year—the claimant has not lodged that return;

if the claimant’s partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year—that partner has not lodged that return.

Note: For relevant partner see section 32AA.

This subsection applies in relation to a cancellation income year if a debt arose under section 71 as a result of the variation concerned and an amount of that debt is outstanding.

Exceptions

The Secretary may, by writing, determine that subsection (2) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

The Secretary may, by writing, determine that subsection (5) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

A period specified in a determination under subsection (8) or (9) may be a period beginning before, on or after the day the determination is made.

A determination made under subsection (8) or (9) is not a legislative instrument.

If this Subdivision has the effect that:

the Secretary must not make a payment of family tax benefit (worked out on an estimated income basis) to an individual during a period; or

an individual is not entitled to be paid family tax benefit (worked out on an estimated income basis) for a period;

then the individual is not entitled to be paid an amount of family tax benefit under section 58AA of the Family Assistance Act during that period.

Subdivision CB—Non-entitlement to FTB on estimated income basis

Scope of Subdivision

This Subdivision applies in relation to an individual if:

(a) there are 2 consecutive income years (each of which is a consecutive year) in which there are one or more days for which the individual was entitled to be paid family tax benefit worked out on an estimated income basis; and

in respect of each consecutive year, the Secretary, under section 105, reviews the rate of family benefit the individual was entitled to be paid for those days on the basis of the individual’s adjusted taxable income as finally determined in respect of the consecutive year by the Secretary; and

as a result of the review and in respect of each consecutive year, the Secretary determines either or both of the following:

the individual’s Part A rate of family tax benefit is nil for those days because of the individual’s adjusted taxable income, and there are no other days in either consecutive year for which the individual was entitled to be paid the Part A rate;

the individual’s Part B rate of family tax benefit is nil for those days because of subclause 28B(1) of Schedule 1 to the Family Assistance Act.

Note: Family tax benefit may be worked out on an estimated income basis under subsection 20(1), (2A) or (3) (see definition of estimated income basis in subsection 3(1)).

Basic non-entitlement rule

Subject to this Subdivision:

if subparagraph (1)(c)(i) applies—the individual is not entitled, on and after the exclusion day, to be paid the Part A rate of family tax benefit worked out on an estimated income basis; and

if subparagraph (1)(c)(ii) applies—the individual is not entitled, on and after the exclusion day, to be paid the Part B rate of family tax benefit worked out on an estimated income basis.

(3) For the purposes of this Subdivision, the exclusion day, in relation to an individual, is:

either:

if the later of the consecutive years is 2010-11—1 July 2012; or

in any other case—1 July of the first income year after the later of the consecutive years; or

if the Secretary determines a later day in relation to the individual—the later day.

A determination under paragraph (3)(b) is not a legislative instrument.

Position of individual’s partner

While paragraph (2)(a) applies in relation to the individual, the individual’s partner (if any) is not entitled to be paid the Part A rate of family tax benefit worked out on an estimated income basis.

While paragraph (2)(b) applies in relation to the individual, the individual’s partner (if any) is not entitled to be paid the Part B rate of family tax benefit worked out on an estimated income basis.

Multiple applications of section

Sections 32AG to 32AM do not prevent this section applying again in relation to the individual in respect of 2 consecutive income years, either or both of which are different from the 2 consecutive income years the subject of the previous application of this section.

Scope

(1) This section applies if, in respect of an income year (the payment year) after the later of the consecutive years, the Secretary, taking into account the individual’s adjusted taxable income as finally determined in respect of the payment year by the Secretary, determines either or both of the following on a day (the payment day):

the individual’s Part A rate of family tax benefit is greater than nil on one or more days in the payment year;

the individual’s Part B rate of family tax benefit is greater than nil on one or more days in the payment year.

Payment day is in same income year as exclusion day

If the payment day is in the income year in which the exclusion day occurs, then:

if this section applies in relation to the Part A rate of family tax benefit—paragraph 32AF(2)(a) is taken not to have applied in relation to the individual; and

if this section applies in relation to the Part B rate of family tax benefit—paragraph 32AF(2)(b) is taken not to have applied in relation to the individual.

Example: Assume that under 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.section 32AF the consecutive years are 2009-10 and 2010-11. Assume that the individual is not entitled, on and after

Assume that on 1 November 2012 the Secretary determines, under subsection (1), that the individual’s Part A rate and Part B rate of family tax benefit are greater than nil on one or more days in 2011-12. The payment day is 1 November 2012.

Under subsection (2), subsection 32AF(2) is taken not to have prevented the individual from being entitled, on and after 1 July 2012, to be paid family tax benefit worked out on an estimated income basis.

Payment day is in income year later than that of exclusion day

If the payment day is in an income year that is later than the income year in which the exclusion day occurs, then:

if this section applies in relation to the Part A rate of family tax benefit—paragraph 32AF(2)(a) ceases to apply in relation to the individual on 1 July of the later income year; and

if this section applies in relation to the Part B rate of family tax benefit—paragraph 32AF(2)(b) ceases to apply in relation to the individual on 1 July of the later income year.

Example: Assume that under 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.section 32AF the consecutive years are 2009-10 and 2010-11. Assume that the individual is not entitled, on and after

Assume that on 1 November 2013 the Secretary determines, under subsection (1), that the individual’s Part A rate and Part B rate of family tax benefit are greater than nil on one or more days in 2011-12. The payment day is 1 November 2013.

Under subsection (3), subsection 32AF(2) ceases to prevent the individual from being entitled, on and after 1 July 2013, to be paid family tax benefit worked out on an estimated income basis.

Note: For the meaning of consecutive year, see subsection 32AF(1). For the meaning of exclusion day, see subsection 32AF(3).

Scope

This section applies if:

(a) the individual is not eligible for family tax benefit for the whole of an income year (the applicable year) that is after the later of the consecutive years (other than because of the individual’s income or the individual’s partner’s income); and

(b) after the applicable year, the individual makes a claim for family tax benefit in relation to the income year (the current year) in which the claim is made; and

the Secretary has finally determined the individual’s adjusted taxable income in respect of the applicable year; and

the Secretary is satisfied that, if the Secretary were to take into account that adjusted taxable income, either or both of the following would apply in respect of one or more days in the current year:

the individual’s Part A rate of family tax benefit would be greater than nil;

the individual’s Part B rate of family tax benefit would be greater than nil, or would be nil (other than because of subclause 28B(1) of Schedule 1 to the Family Assistance Act).

Exclusion day is in current year

If the exclusion day is in the current year, then:

if this section applies in relation to the Part A rate of family tax benefit—paragraph 32AF(2)(a) is taken not to have applied in relation to the individual; and

if this section applies in relation to the Part B rate of family tax benefit—paragraph 32AF(2)(b) is taken not to have applied in relation to the individual.

Example: Assume that under 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.section 32AF the consecutive years are 2009-10 and 2010-11. Assume that the individual is not entitled, on and after

Assume that the individual is not eligible for family tax benefit for the whole of 2011-12 (the applicable year). Assume that in 2012-13 (the current year) the individual makes a claim for family tax benefit for 2012-13.

Assume that the Secretary is satisfied that, if the Secretary were to take into account the individual’s final adjusted taxable income for 2011-12, the individual’s Part A rate and Part B rate of family tax benefit would be greater than nil on one or more days in 2012-13.

Under subsection (2), subsection 32AF(2) is taken not to have prevented the individual from being entitled, on and after 1 July 2012, to be paid family tax benefit worked out on an estimated income basis.

Current year is later than that of exclusion day

If the current year is later than the income year in which the exclusion day occurs, then:

if this section applies in relation to the Part A rate of family tax benefit—paragraph 32AF(2)(a) ceases to apply in relation to the individual on 1 July of the current year; and

if this section applies in relation to the Part B rate of family tax benefit—paragraph 32AF(2)(b) ceases to apply in relation to the individual on 1 July of the current year.

Example: Assume that under 1 July 2012, to be paid the Part A rate and Part B rate of family tax benefit worked out on an estimated income basis. The exclusion day is 1 July 2012.section 32AF the consecutive years are 2010-11 and 2011-12. Assume that the individual is not entitled, on and after

Assume that the individual is not eligible for family tax benefit for the whole of 2012-13 (the applicable year). Assume that in 2013-14 (the current year) the individual makes a claim for family tax benefit for 2013-14.

Assume that the Secretary is satisfied that, if the Secretary were to take into account the individual’s final adjusted taxable income for 2012-13, the individual’s Part A rate and Part B rate of family tax benefit would be greater than nil on one or more days in 2013-14.

Under subsection (3), subsection 32AF(2) ceases to prevent the individual from being entitled, on and after 1 July 2013, to be paid family tax benefit worked out on an estimated income basis.

Note: For the meaning of consecutive year, see subsection 32AF(1). For the meaning of exclusion day, see subsection 32AF(3).

Scope

(1) This section applies if, on a day (the income support day) after the later of the consecutive years, the individual, or the individual’s partner (if any), is receiving support (income support), in the form of a social security pension, a social security benefit, a service pension, income support supplement or a veteran payment.

Trigger day is on or before exclusion day

If the trigger day is on or before the exclusion day, subsection 32AF(2) is taken not to apply to the individual.

Trigger day is after exclusion day

If the trigger day is after the exclusion day, subsection 32AF(2) ceases to apply to the individual on and from the trigger day.

Trigger day for income support payments

In this section:

trigger day means the later of:

the earliest income support day; and

1 July of the income year the Secretary becomes aware that the individual, or the individual’s partner, is receiving the income support.

Note: For the meaning of consecutive year, see subsection 32AF(1). For the meaning of exclusion day, see subsection 32AF(3).

Scope

(1) This section applies if, on a day (the FTB child day) after the later of the consecutive years:

the individual has an FTB child; and

the child was not an FTB child of the individual at any time during the consecutive years.

Trigger day is on or before exclusion day

If the trigger day is on or before the exclusion day, subsection 32AF(2) is taken not to apply to the individual.

Trigger day is after exclusion day

If the trigger day is after the exclusion day, subsection 32AF(2) ceases to apply to the individual on and from the trigger day.

Trigger day for new FTB child

In this section:

trigger day means the later of:

the earliest FTB child day; and

1 July of the income year the Secretary becomes aware of the existence of the FTB child.

Note: For the meaning of consecutive year, see subsection 32AF(1). For the meaning of exclusion day, see subsection 32AF(3).

Scope

This section applies if:

at the end of the later of the consecutive years, the individual is a member of a couple; and

(b) on any later day (a separation day) the individual ceases to be a member of that couple.

Note: Paragraph (b) may apply more than once, for example if the couple separates, then reconciles, then again separates.

Trigger day is on or before exclusion day

If the trigger day is on or before the exclusion day, subsection 32AF(2) is taken not to apply to the individual.

Trigger day is after exclusion day

If the trigger day is after the exclusion day, subsection 32AF(2) ceases to apply to the individual on and from the trigger day.

Reconciliation of separated couple

(4) However, if on any day (the reconciliation day) after a separation day, the individual again becomes a member of that couple, then subsection 32AF(2) applies in relation to the individual as if the reconciliation day were the exclusion day.

Note: This subsection may apply more than once, for example if the couple separates, then reconciles, then again separates and reconciles.

Trigger day for separation

In this section:

trigger day, in relation to a particular separation day, means the later of:

the separation day; and

1 July of the income year the Secretary becomes aware that the individual has (on that separation day) ceased to be a member of that couple.

Note: For the meaning of consecutive year, see subsection 32AF(1). For the meaning of exclusion day, see subsection 32AF(3).

Scope

This section applies if the Secretary is satisfied that:

(a) on a day (the special circumstances day) after the later of the consecutive years, special circumstances exist in relation to the individual, the individual’s partner (if any) or both; and

those circumstances did not exist at the end of the later of the consecutive years; and

those circumstances make it inappropriate to prevent the individual from being entitled to be paid the Part A rate and the Part B rate of family tax benefit worked out on an estimated income basis.

Trigger day is on or before exclusion day

If the trigger day is on or before the exclusion day, the Secretary must determine that subsection 32AF(2) is taken not to apply to the individual.

Trigger day is after exclusion day

If the trigger day is after the exclusion day, the Secretary must determine that subsection 32AF(2) ceases to apply to the individual on and from the trigger day.

Secretary’s determinations—general

A determination under subsection (2) or (3):

has effect in accordance with its terms; and

is not a legislative instrument.

Trigger day for special circumstances

In this section:

trigger day means the later of:

the special circumstances day; and

1 July of the income year the Secretary becomes aware of the existence of the special circumstances.

Note: For the meaning of consecutive year, see subsection 32AF(1). For the meaning of exclusion day, see subsection 32AF(3).

Scope

This section applies if the Secretary is satisfied that:

(a) on a day (the determined circumstances day) after the later of the consecutive years, circumstances determined in an instrument under subsection (2) exist in relation to the individual, the individual’s partner (if any) or both; and

the determined circumstances make it inappropriate to prevent the individual from being entitled to be paid the Part A rate and the Part B rate of family tax benefit worked out on an estimated income basis.

The Minister may, by legislative instrument, determine circumstances for the purposes of paragraph (1)(a).

Trigger day is on or before exclusion day

If the trigger day is on or before the exclusion day, the Secretary must determine that subsection 32AF(2) is taken not to apply to the individual.

Trigger day is after exclusion day

If the trigger day is after the exclusion day, the Secretary must determine that subsection 32AF(2) ceases to apply to the individual on and from the trigger day.

Secretary’s determinations—general

A determination under subsection (3) or (4):

has effect in accordance with its terms; and

is not a legislative instrument.

Trigger day for determined circumstances

In this section:

trigger day means the later of:

the determined circumstances day; and

1 July of the income year the Secretary becomes aware of the existence of the determined circumstances.

Note: For the meaning of consecutive year, see subsection 32AF(1). For the meaning of exclusion day, see subsection 32AF(3).

Subdivision D—FTB reconciliation conditions

(1) This section applies to a decision of the Secretary to make or vary a first individual) is entitled to be paid family tax benefit at a particular rate in respect of a period (the same-rate benefit period) that consists of, or is included in, a particular income year (the relevant income year).section 16 or 17 determination if, as a result of the decision, an individual (the

In making or varying the determination, the Secretary must disregard the following provisions:

paragraph (ca) of step 1 of the method statement in clause 3 of Schedule 1 to the Family Assistance Act;

paragraph (d) of step 1 of the method statement in clause 25 of Schedule 1 to the Family Assistance Act;

paragraph 29(1)(b) of Schedule 1 to the Family Assistance Act;

paragraph (b) of step 1 of the method statement in subclause 29(2) of Schedule 1 to the Family Assistance Act;

paragraph 29A(2)(b) of Schedule 1 to the Family Assistance Act;

subclause 31A(1) of Schedule 1 to the Family Assistance Act;

subclause 38A(1) of Schedule 1 to the Family Assistance Act;

unless and until:

if the same-rate benefit period to which the decision relates is the only same-rate benefit period for the first individual for the relevant income year—the first individual has satisfied the FTB reconciliation conditions for the same-rate benefit period; or

if the same-rate benefit period to which the decision relates is one of 2 or more same-rate benefit periods for the first individual for the relevant income year—the first individual has satisfied the FTB reconciliation conditions for each of those same-rate benefit periods.

Note 1: If those provisions are disregarded, they will be taken into account when the determination or variation is reviewed under section 105—see section 105A.

Note 2: To work out when the first individual has satisfied the FTB reconciliation conditions, see section 32B.

Subsection (2) does not apply for the purposes of working out the amount of a clean energy advance.

For the purposes of this Act, the first individual satisfies the FTB reconciliation conditions for a same-rate benefit period:

if only one of sections 32C to 32Q applies to the first individual for the same-rate benefit period—at the relevant reconciliation time; or

if 2 or more of sections 32C to 32Q apply to the first individual for the same-rate benefit period—at whichever of the relevant reconciliation times is the latest.

This section applies to the first individual for a same-rate benefit period if:

the first individual is or was required to lodge an income tax return for the relevant income year; and

clause 38L of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.

Disregard paragraph (1)(b) if the first individual was a member of a couple at any time during the same-rate benefit period.

(3) The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.

The further period under paragraph (3)(b) must end no later than the end of the second income year after the relevant income year.

This section applies to the first individual for a same-rate benefit period if:

the first individual was a member of a couple throughout that period; and

(b) the other member of the couple (the partner) is or was required to lodge an income tax return for the relevant income year; and

the first individual continues to be a member of the couple until the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the partner from lodging the return before the end of that first income year.

(2) The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the partner’s taxable income for the relevant income year, so long as the partner’s income tax return for the relevant income year was lodged before the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows under subparagraph (1)(c)(ii).

The further period under subparagraph (1)(c)(ii) must end no later than the end of the second income year after the relevant income year.

This section applies to the first individual for a same-rate benefit period if:

the first individual was a member of a couple throughout that period; and

(b) the other member of the couple (the partner) is or was required to lodge an income tax return for the relevant income year; and

the first individual ceased to be a member of the couple during the first income year after the relevant income year.

The relevant reconciliation time is:

(a) if the partner lodged the return before the end of the first income year after the relevant income year—when an assessment is made under the Income Tax Assessment Act 1936 of the partner’s taxable income for the relevant income year; or

otherwise—the end of the first income year after the relevant income year.

This section applies to the first individual for a same-rate benefit period if:

the first individual was a member of a couple throughout that period; and

(b) the other member of the couple (the partner) is or was required to lodge an income tax return for the relevant income year; and

the partner did not lodge the return before the end of the first income year after the relevant income year; and

the Secretary allowed a further period for the partner to lodge the return because the Secretary was satisfied that there were special circumstances that prevented the partner from lodging the return before the end of that first income year; and

the first individual ceased to be a member of the couple during the period beginning at the start of the second income year after the relevant income year and ending at the end of that further period allowed by the Secretary.

The relevant reconciliation time is:

(a) if the partner lodged the return while the first individual and the partner were members of the same couple—when an assessment is made under the Income Tax Assessment Act 1936 of the partner’s taxable income for the relevant income year; or

otherwise—when the first individual ceased to be a member of the couple.

The further period under paragraph (1)(d) must end no later than the end of the second income year after the relevant income year.

This section applies to the first individual for a same-rate benefit period if:

the first individual; or

any other individual whose adjusted taxable income is relevant in working out the first individual’s entitlement to, or rate of, family tax benefit for the same-rate benefit period;

is not required to lodge an income tax return for the relevant income year.

The relevant reconciliation time is whichever is the earlier of the following times:

the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual’s adjusted taxable income for the relevant income year, so long as that notification occurs before the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from making that notification before the end of that first income year;

the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.

The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year.

This section applies to the first individual for a same-rate benefit period if any of the following were taken into account in working out the first individual’s adjusted taxable income for the relevant income year:

the first individual’s target foreign income for the relevant income year (as defined by clause 5 of Schedule 3 to the Family Assistance Act);

the first individual’s tax free pension or benefit for the relevant income year (as defined by clause 7 of Schedule 3 to the Family Assistance Act);

the first individual’s child maintenance expenditure for the relevant income year (as defined by clause 8 of Schedule 3 to the Family Assistance Act);

another individual’s target foreign income for the relevant income year (as defined by clause 5 of Schedule 3 to the Family Assistance Act);

another individual’s tax free pension or benefit for the relevant income year (as defined by clause 7 of Schedule 3 to the Family Assistance Act);

another individual’s child maintenance expenditure for the relevant income year (as defined by clause 8 of Schedule 3 to the Family Assistance Act).

The relevant reconciliation time is whichever is the earlier of the following times:

the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual’s adjusted taxable income for the relevant income year, so long as that notification occurs before the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from making that notification before the end of that first income year;

the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.

The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year.

This section applies to the first individual for a same-rate benefit period if:

the first individual has an annualised amount of maintenance income (as defined by Division 5 of Part 2 of Schedule 1 to the Family Assistance Act) for the relevant income year; and

clause 19B of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.

The relevant reconciliation time is whichever is the earlier of the following times:

the time after the end of the relevant income year when the first individual notifies the Secretary of information that is sufficient to work out the first individual’s annualised amount of maintenance income for the relevant income year, so long as that notification occurs before the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from making that notification before the end of that first income year;

the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s annualised amount of maintenance income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.

The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year.

This section applies to the first individual for a same-rate benefit period if:

the first individual was not a member of a couple at any time during the same-rate benefit period; and

clause 38L of Schedule 1 to the Family Assistance Act applied to the first individual throughout the same-rate benefit period; and

either:

the first individual did not have an annualised amount of maintenance income (as defined by Division 5 of Part 2 of Schedule 1 to the Family Assistance Act) for the relevant income year; or

clause 19B of Schedule 1 to the Family Assistance Act applied to the first individual throughout the same-rate benefit period.

The relevant reconciliation time is the end of the relevant income year.

The Secretary may, by legislative instrument, determine that:

this section applies to a specified class of individuals for a same-rate benefit period in specified circumstances; and

the relevant reconciliation time applicable to that class for the same-rate benefit period is the time ascertained in accordance with the determination.

An individual may request a family tax benefit advance.

(2) If an individual makes a request for a family tax benefit advance (the first advance) accompanied by a request under section 35B (regular family tax benefit advances), the individual may also request that entitlement to the first advance be determined on a specified future day.

To be effective a request:

must be made in a form and manner, contain any information, and be accompanied by any documents required by the Secretary; and

must specify the amount of family tax benefit advance sought; and

the amount of family tax benefit advance sought must be at least the minimum amount.

If an effective request is made, the Secretary must determine the request in accordance with this Division. If a request is not effective, it is taken never to have been made.

An individual may withdraw or vary a request before the request is determined.

The individual may only do so in a manner determined by the Secretary.

If a request is withdrawn, it is taken never to have been made.

Subdivision B—Entitlement to family tax benefit advance

The Secretary must determine that an individual is entitled to be paid a family tax benefit advance if:

on the advance assessment day, the individual is entitled to be paid family tax benefit by instalment; and

the individual has made an effective request under section 34 for a family tax benefit advance; and

on the advance assessment day, the individual’s Part A rate (disregarding clauses 5 and 25A of Schedule 1 to the Family Assistance Act) is equal to or exceeds the amount that would, under clause 26 of that Schedule, be the FTB child rate if:

the individual’s Part A rate were required to be worked out using Part 3 of that Schedule; and

clause 27 of that Schedule did not apply; and

on the advance assessment day, the individual has at least one FTB child; and

on the advance assessment day, the amount of advance that the individual would be entitled to is at least the minimum amount; and

the Secretary considers, on the basis of information available to the Secretary on the advance assessment day, that the individual will not suffer financial hardship from the individual’s Part A rate being reduced as a result of being paid the advance; and

on the advance assessment day, the individual is not excluded from being paid a family tax benefit advance under subsection (2).

An individual is excluded from being paid a family tax benefit advance if:

an amount of family tax benefit advance paid to the individual more than 12 months before the advance assessment day has not been fully repaid; or

an amount of family tax benefit advance paid to the individual more than 12 months before the advance assessment day is being repaid as a new advance due to a determination under clause 51 of Schedule 1 to the Family Assistance Act; or

the individual owes a debt to the Commonwealth (whether arising under this Act or not) that is:

recoverable under Part 4 by means of deductions from the individual’s instalments of family tax benefit under section 84 (unless that debt has been written off because of subsection 95(4A) or (4B)); or

being recovered by deductions from the individual’s instalments of family tax benefit under section 227; or

on the advance assessment day, the Secretary is prohibited from making a payment of family tax benefit to the individual under section 32AA or 32AD (non-payment for non-lodgment of tax returns).

(3) An individual’s advance assessment day is the day the Secretary determines the individual’s entitlement to be paid a family tax benefit advance.

If the individual is not entitled to be paid a family tax benefit advance under subsection (1), the Secretary must determine that the individual is not entitled to the family tax benefit advance.

Subdivision C—Regular family tax benefit advances

(1) An individual who makes a request in accordance with first advance) may, when making the request, also request that a family tax benefit advance of the minimum amount be paid to the individual at regular intervals of 182 days.section 34 for a family tax benefit advance of the minimum amount (the

For the request for payment of a family tax benefit advance at regular intervals to be effective, the request must be made in a form and manner, contain any information, and be accompanied by any documents, required by the Secretary.

If an individual makes an effective request under this section:

the Secretary must make a determination under section 35A, in relation to the individual’s eligibility for a family tax benefit advance of the minimum amount, at intervals that would best facilitate payment in accordance with the request; and

(b) the advance assessment day for a determination referred to in paragraph (a) is:

if the individual has not previously been paid a family tax benefit advance requested under this section—the day that falls immediately after the end of an interval of 182 days that began on the day the first advance was paid; or

if the individual has previously been paid a family tax benefit advance requested under this section—the day that falls immediately after the end of the last of the intervals of 182 days, the first of which began on the day the first advance was paid.

The Secretary must, in making a determination referred to in subsection (3), treat paragraph 35A(1)(b) (requirement to make an effective request) as having been satisfied if:

the individual has made an effective request under this section; and

the request has not been withdrawn under subsection (6) before the determination is made; and

the individual has not failed to repay the last family tax benefit advance paid in response to the request under within 182 days.section 34 mentioned in subsection (1), or the request under this section,

A request under subsection (1) ceases to be effective if:

the Secretary, in making a determination referred to in subsection (3), determines that the individual is not entitled to a family tax benefit advance; or

the individual withdraws the request under subsection (6).

An individual may, in a manner determined by the Secretary, withdraw the request at any time.

Subdivision D—Amount of family tax benefit advance

The amount of the family tax benefit advance is the smaller of the following amounts:

the amount of advance sought;

the maximum amount of advance payable to the individual on the advance assessment day worked out under section 35D less the original amount of each family tax benefit advance paid to the individual that is unrepaid on that day.

When working out the original amount of each family tax benefit advance paid to the individual that is unrepaid for the purposes of paragraph (1)(b), disregard clause 51 of Schedule 1 to the Family Assistance Act.

The Secretary may determine that the amount of the family tax benefit advance is a lower amount than the amount that applies under subsection (1) if the Secretary is satisfied that the individual would suffer financial hardship if the individual’s Part A rate were reduced as a result of being paid that amount.

(1) Subject to subsection (2), the maximum amount of family tax benefit advance payable to the individual is set out in the following table:

Member of a couple in a blended family

(2) If a determination under section 28 percentage) of the family tax benefit for FTB children of the individual is in force, the maximum amount of family tax benefit advance payable to the individual is the section 28 percentage of the amount worked out for the individual under subsection (1).section 28 of the Family Assistance Act that the individual is eligible for a percentage (the

Rounding

Amounts worked out under this section must be rounded to the nearest cent (rounding 0.5 cents upwards).

Definitions

In this section:

adjusted Part A rate, in relation to an individual, means the individual’s Part A rate disregarding:

clause 38A of Schedule 1 to the Family Assistance Act; and

any reduction under clause 5 or 25A of that Schedule.

standard rate for a child under 13 means the FTB child rate for one FTB child who is under 13 years of age worked out under clause 7 of Schedule 1 to the Family Assistance Act (disregarding clauses 8 to 11 of that Schedule).

Subdivision E—Payment of family tax benefit advance

If an individual is entitled to be paid a family tax benefit advance, the Secretary must, at such time and in such manner as the Secretary considers appropriate, pay the individual the advance.

This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

The only way that a person can become entitled to be paid a stillborn baby payment is to make a claim in accordance with this Division.

The only persons who can make a claim in accordance with this Division are individuals.

(1) An individual (the claimant) may make a claim for payment of:

a stillborn baby payment in normal circumstances; or

a stillborn baby payment because of the death of another individual.

A claim is not effective unless:

the claim:

is made in a form and manner; and

contains any information; and

is accompanied by any documents;

required by the Secretary; and

in the case of a claim for a stillborn baby payment in normal circumstances—the claim contains an estimate of the sum of:

the individual’s adjusted taxable income; and

if the individual is a member of a couple on the day the claim is made—the adjusted taxable income of the individual’s partner;

for the 6-month period mentioned in paragraph 36(1)(d) of the Family Assistance Act; and

in the case of a claim for a stillborn baby payment in normal circumstances—the tax file number requirement in section 38A has been satisfied in relation to the claim; and

in the case of a claim for a stillborn baby payment because of the death of another individual—the tax file number requirement in section 38B has been satisfied in relation to the claim.

Estimate of adjusted taxable income

For the purposes of paragraph (2)(b):

a reference in Schedule 3 to the Family Assistance Act to an income year is taken to be a reference to the 6-month period referred to in that paragraph; and

disregard subclause 2(2) and clauses 3 and 3A of that Schedule.

This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 38(2)(b) (which states what is required for certain claims to be effective).

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

Statement of tax file number

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

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

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

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

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

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

How statement to be given

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

Exemption from tax file number requirement

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

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

the claimant cannot obtain from the person:

the person’s tax file number; or

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

This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 38(2)(c) (which states what is required for claims in substitution because of the death of another individual to be effective).

The requirement is that a statement of one of the kinds set out in subsection (3), (4) or (5) must be made in relation to each TFN substitution person. However, the requirement does not apply in relation to a TFN substitution person if a determination is in force under subsection (7) or (8) in relation to the person.

Statement of tax file number

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

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

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

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

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

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

How statement to be given

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

Exemption from tax file number requirement

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

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

“Normal circumstances” entitlement must not already have been determined, or be awaiting determination, on a previous claim

A claim for payment of a stillborn baby payment in normal circumstances is not effective if the claimant has previously made such a claim based on the same circumstances (whether or not the claim has yet been determined).

Timing of “normal circumstances” stillborn baby payment claim

Subject to subsections (3), (3A) and (4), a claim for payment of a stillborn baby payment in normal circumstances is not effective unless it is made before the end of the period of 52 weeks beginning on the day of the birth of the stillborn child.

If the Secretary is satisfied that the claimant was unable to make a claim for payment of a stillborn baby payment in normal circumstances because of severe illness associated with the birth of the stillborn child, the Secretary may extend the period of 52 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.

If:

in relation to any day during the period of 52 weeks mentioned in subsection (2), paragraphs 36(2)(a) and (b) of the Family Assistance Act apply in relation to the claimant or the claimant’s partner; and

after the end of, or during the last 13 weeks of, that 52-week period, the Secretary gives the claimant, or the claimant’s partner, a notice specifying that the claimant’s or the claimant’s partner’s rate of family tax benefit consists of or includes a Part A rate greater than nil;

subsection (2) of this section does not apply if the claim for payment of a stillborn baby payment is made within the period of 13 weeks after the day on which the notice is given.

If:

(a) the claimant, or the claimant’s partner, made a claim in accordance with Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for payment of a stillborn baby payment relates; andPart 2-4 of the

the claimant, or the claimant’s partner, is given a notice under section 24 of that Act in relation to the claim for parental leave pay that states that parental leave pay is not payable and no determination of the kind mentioned in paragraph 13(6)(b) or 14(4)(b) of that Act has been made; and

the notice is given:

after the end of the period of 52 weeks mentioned in subsection (2) of this section; or

during the last 13 weeks of that period of 52 weeks;

subsection (2) of this section does not apply if the claim for payment of a stillborn baby payment is made within the period of 13 weeks after the day on which the notice is given.

“Bereavement” entitlement must not already have been determined, or be awaiting determination, on a previous claim

A claim for payment of a stillborn baby payment because of the death of another individual is not effective if the claimant has previously made such a claim because of the death of that individual (whether or not the claim has yet been determined).

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

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

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

If a claim is effective, the Secretary must determine the claim in accordance with this section and sections 42 to 44. If the claim is not effective, it is taken not to have been made.

Information to be taken into account

The Secretary is to make the determination:

having regard only to the information in the claim (and any accompanying documents or information required by the Secretary); or

having regard to the things in paragraph (a) and also to any other information or documents (whether or not provided by the claimant).

Deferral of “normal circumstances” stillborn baby payment determination pending resolution of parental leave pay

If:

the claim is one for payment of a stillborn baby payment in normal circumstances; and

(b) the claimant, or the claimant’s partner, has made a claim in accordance with Paid Parental Leave Act 2010 for parental leave pay for the child to whom the claim for a stillborn baby payment relates;Part 2-4 of the

the Secretary must not determine the claim for a stillborn baby payment until one of the following occurs:

if the Secretary determines under that Act that parental leave pay for the child is payable to the person who made the claim for parental leave pay:

the instalment period (within the meaning of that Act) for the instalment of parental leave pay that relates to the first of those days has ended; or

the Secretary revokes the determination under section 25 of that Act;

the claimant, or the claimant’s partner, is given a notice under section 24 of that Act in relation to the claim for parental leave pay that states that parental leave pay is not payable and no determination of the kind mentioned in paragraph 13(6)(b) or 14(4)(b) of that Act has been made;

the claim for parental leave pay is withdrawn under section 61 of that Act.

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

If:

a TFN claim person makes a statement of the kind set out in subsection 38A(4); or

a TFN substitution person makes a statement of the kind set out in subsection 38B(4);

the Secretary can only determine the claim concerned if:

within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.

Statement that an application for a tax file number is pending

If:

a TFN claim person makes a statement of the kind set out in subsection 38A(5); or

a TFN substitution person makes a statement of the kind set out in subsection 38B(5);

the Secretary can only determine the claim concerned if:

within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:

the person has not applied for a tax file number; or

an application by the person for a tax file number has been refused; or

the person has withdrawn an application for a tax file number.

If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

If:

the claim is one for payment of a stillborn baby payment in normal circumstances; and

the Secretary is satisfied that the claimant is eligible for a stillborn baby payment in accordance with Subdivision A of Division 2 of Part 3 of the Family Assistance Act in respect of the child to whom the claim relates;

the Secretary must determine that the claimant is entitled to be paid the stillborn baby payment and must determine the amount of the payment that the claimant is entitled to be paid.

If:

the claim is one for payment of a stillborn baby payment because of the death of another individual; and

the Secretary is satisfied that the claimant is, in the circumstances covered by the claim, eligible for a stillborn baby payment in accordance with Subdivision B of Division 2 of Part 3 of the Family Assistance Act;

the Secretary must determine that the claimant is entitled to be paid the stillborn baby payment and must determine the amount of the payment that the claimant is entitled to be paid.

If the Secretary is not satisfied as mentioned in section 42 or 43, the Secretary must determine that the claimant is not entitled to be paid a stillborn baby payment in respect of the child to whom the claim relates, or in the circumstances covered by the claim, as the case requires.

A determination comes into force when it is made and remains in force at all times afterwards.

The Secretary must give notice of the determination to the claimant, stating:

whether the claimant is entitled to be paid a stillborn baby payment under the determination; and

if the claimant is entitled—the amount of the stillborn baby payment and how it is to be paid; and

that the claimant may apply for review of the determination in the manner set out in Part 5.

The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.

If the claimant is entitled to be paid a stillborn baby payment, the Secretary must pay the amount of the payment to the claimant in a single lump sum:

on the day that the Secretary considers to be the earliest day on which it is reasonably practicable for the amount to be paid; and

to the credit of a bank account nominated and maintained by the claimant.

Payment not to bank account

However, the Secretary may direct that an amount that is to be paid under subsection (1) is to be paid in a way other than by payment to the credit of a bank account nominated and maintained by the claimant. A direction has effect accordingly.

Interaction with other provisions

This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

If:

a TFN claim person has made a statement of the kind set out in subsection 38A(4); and

a determination is in force under which the claimant is entitled to be paid a stillborn baby payment in normal circumstances; and

the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;

the consequence in subsection (3) applies.

If:

a TFN claim person has made a statement of the kind set out in subsection 38A(5); and

a determination is in force under which the claimant is entitled to be paid a stillborn baby payment in normal circumstances; and

the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (3) applies.

For the purposes of subsection (1) or (2), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid a stillborn baby payment.

If:

under subsection (3), the Secretary varies the determination; and

the Secretary finds out the tax file number of the TFN claim person at any time after the variation took place;

the Secretary must vary the determination to undo the effect mentioned in subsection (3).

If an individual is entitled to a one-off payment to families, the Secretary must pay the payment to the individual in a single lump sum:

on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the payment.

If an individual is entitled to an economic security strategy payment to families, the Secretary must pay the payment to the individual in a single lump sum:

on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the payment.

If an individual is entitled to a back to school bonus or a single income family bonus, the Secretary must pay the bonus to the individual in a single lump sum:

on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the bonus to be made; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the bonus.

If an individual is entitled to an ETR payment, the Secretary must pay the payment to the individual in a single lump sum:

on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be made; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the payment.

If, on 8 May 2012, section 32AA or 32AD prevents the Secretary from making a payment of family tax benefit to the individual, or the individual’s partner, worked out on an estimated income basis, the Secretary must not pay the ETR payment to the individual at a time that is earlier than the time family tax benefit is paid to the individual, or the individual’s partner, in relation to that day.

Subject to this section, if an individual is entitled to a clean energy advance, the Secretary must pay the advance to the individual in a single lump sum:

on the day that the Secretary considers to be the earliest day on which it is reasonably practicable for the advance to be paid; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the advance.

If:

the decision day (see subsection 105(1) of the Family Assistance Act) or the trigger day (see subsection 108(1), (1A) or (2) of that Act), as the case may be, is on or after 1 July 2012 and before 1 July 2013; and

on that day, the Secretary from making a payment of family tax benefit to the individual, or the individual’s partner, worked out on an estimated income basis;section 32AA or 32AD of this Act prevents

then the Secretary must not pay the clean energy advance to the individual at a time that is earlier than the time family tax benefit is paid to the individual, or the individual’s partner, in relation to that day.

If:

the decision day (see subsection 105(1) of the Family Assistance Act) is on or after 1 July 2013; and

in relation to one or more days in the 2012-13 income year, the Secretary from making a payment of family tax benefit to the individual, or the individual’s partner, worked out on an estimated income basis;section 32AA or 32AD of this Act prevents

then the Secretary must not pay the clean energy advance to the individual at a time that is earlier than the time family tax benefit is paid to the individual, or the individual’s partner, in relation to those days.

If an individual is entitled to a first 2020 economic support payment, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:

on the date that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the payment.

The Secretary must not pay the payment on or after 1 July 2022 if the individual is entitled to the payment because subsection 116(2) or (4) of the Family Assistance Act applies to the individual on a day.

If an individual is entitled to a second 2020 economic support payment, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:

on the date, occurring on or after 10 July 2020, that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the payment.

The Secretary must not pay the payment on or after 1 July 2023 if the individual is entitled to the payment because subsection 116(2) or (4) of the Family Assistance Act applies to the individual on 10 July 2020.

If an individual is entitled to an additional economic support payment 2020, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:

on the date, occurring on or after 27 November 2020, that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the payment.

The Secretary must not pay the payment on or after 1 July 2023 if the individual is entitled to the payment because subsection 123(2) or (4) of the Family Assistance Act applies to the individual on 27 November 2020.

If an individual is entitled to an additional economic support payment 2021, the Secretary must, subject to subsection (2), pay the payment to the individual in a single lump sum:

on the date, occurring on or after 26 February 2021, that the Secretary considers to be the earliest date on which it is reasonably practicable for the payment to be paid; and

in such manner as the Secretary considers appropriate.

Note: The individual does not have to make a claim for the payment.

The Secretary must not pay the payment on or after 1 July 2023 if the individual is entitled to the payment because subsection 123(2) or (4) of the Family Assistance Act applies to the individual on 26 February 2021.

Subject to subsection (2), the only way that an individual can become entitled to be paid single income family supplement is to make a claim in accordance with this Division.

If:

in relation to a period in an income year:

a determination under section 16 or 17 is in force in respect of an individual as a claimant; or

a determination under the Secretary is satisfied that the individual is eligible for family tax benefit under section 32 of the Family Assistance Act; andsection 18 is in force in respect of an individual because

the individual’s rate of family tax benefit payable under the determination in relation to that period takes into account one or more FTB children of the individual;

the individual is not required to make a claim for single income family supplement in relation to that period.

(1) An individual (a claimant) may make a claim:

for payment of single income family supplement for a past period; or

for payment of single income family supplement by single payment/in substitution because of the death of another individual.

Form etc. of claim

To be effective:

a claim must:

be made in a form and manner; and

contain any information; and

be accompanied by any documents;

required by the Secretary; and

in the case of a claim for payment of single income family supplement for a past period—the tax file number requirement in section 65KB must be satisfied in relation to the claim; and

in the case of a claim for payment of single income family supplement in substitution because of the death of another individual—the tax file number requirement in section 65KC must be satisfied in relation to the claim.

This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 65KA(2)(b) (which states what is required for certain claims to be effective).

Subject to subsection (7), the requirement is that a statement of one of the kinds set out in subsections (3), (4) and (5) must be made in relation to each TFN claim person.

Statement of tax file number

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

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

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

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

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

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

How statement to be given

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

Exemption from tax file number requirement

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

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

the claimant cannot obtain from the person:

the person’s tax file number; or

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

This section sets out the tax file number requirement that must be satisfied in relation to a claim for the purposes of paragraph 65KA(2)(c) (which states what is required for claims in substitution because of the death of another individual to be effective).

Subject to subsections (7) and (8), the requirement is that a statement of one of the kinds set out in subsections (3), (4) and (5) must be made in relation to each TFN substitution person.

Statement of tax file number

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

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

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

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

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

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

How statement to be given

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

Exemption from tax file number requirement

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

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

Restriction where previous claim

A claim for payment of single income family supplement for a past period is not effective if the claimant has previously made a claim for payment of single income family supplement for any of the past period (whether or not the claim has yet been determined).

Other restrictions

A claim for payment of single income family supplement for a past period is not effective if:

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

(b) the period does fall wholly within one income year (the relevant income year) but the claim is made after the end of:

the first income year after the relevant income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the claim before the end of that first income year.

The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.

A claim for payment of single income family supplement for a past period is not effective if the period occurs in the income year in which the claim is made.

Restriction where previous claim

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

Other restrictions

If a claim for payment of single income family supplement by single payment/in substitution because of the death of another individual is based on eligibility for an amount of single income family supplement under section 57GF or 57GG of the Family Assistance Act, the claim is not effective if it is made after the end of the income year following the one in which the death occurred.

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

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

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

Subdivision B—Determination of claims and payment of single income family supplement

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

If, in relation to a claim for payment of single income family supplement made by an individual:

the claim is for payment of that supplement for a past period; and

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

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

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

This subsection applies if:

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

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

This subsection applies if:

a person is the claimant’s partner at any time during the past period; and

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

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

If, in relation to a claim for payment of single income family supplement made by an individual:

the claim is for payment of that supplement for a past period; and

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

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

then the claim is taken never to have been made.

This subsection applies if:

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

the claimant has not lodged the return before the end of:

the first income year after the past period income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the return before the end of that first income year.

This subsection applies if:

a person is the claimant’s partner at any time during the past period; and

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

that person has not lodged the return before the end of:

the first income year after the past period income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.

The further period referred to in subparagraph (2)(b)(ii) or (3)(c)(ii) must end no later than the end of the second income year after the past period income year.

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

If:

a TFN claim person makes a statement of the kind set out in subsection 65KB(4); or

a TFN substitution person makes a statement of the kind set out in subsection 65KC(4);

the Secretary can only determine the claim concerned if:

within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that the person has no tax file number.

Statement that an application for a tax file number is pending

If:

a TFN claim person makes a statement of the kind set out in subsection 65KB(5); or

a TFN substitution person makes a statement of the kind set out in subsection 65KC(5);

the Secretary can only determine the claim concerned if:

within 28 days after the claim is made, the Commissioner of Taxation tells the Secretary the person’s tax file number; or

28 days pass after the claim is made without the Commissioner of Taxation telling the Secretary that:

the person has not applied for a tax file number; or

an application by the person for a tax file number has been refused; or

the person has withdrawn an application for a tax file number.

If, after the 28 days mentioned in subsection (1) or (2) have passed, the Secretary cannot, because of that subsection, determine the claim, the claim is taken never to have been made.

If:

the claim is one for payment of single income family supplement for a past period; and

the Secretary is satisfied that the claimant was eligible for single income family supplement:

for the whole of the period in accordance with Subdivision A of Division 6 of Part 3 of the Family Assistance Act; or

for part of the period in accordance with that Subdivision and for the remainder of the period in accordance with section 57GE of that Act;

the Secretary must determine that the claimant is entitled to be paid single income family supplement for the past period.

If:

the claim is one for payment of single income family supplement by single payment/in substitution because of the death of another individual; and

the Secretary is satisfied that the claimant is eligible for single income family supplement under section 57GF or 57GG of the Family Assistance Act;

the Secretary must determine that the claimant is entitled to be paid the single income family supplement.

If the Secretary is not satisfied as mentioned in section 65KK or 65KL, the Secretary must determine that the claimant is not entitled to be paid single income family supplement for the past period or because of the death of the other individual, as the case requires.

A determination under this Division comes into force when it is made and remains in force at all times afterwards.

The Secretary must give notice of a determination under this Subdivision to the claimant, stating:

whether the claimant is entitled to be paid single income family supplement under the determination; and

if the claimant is so entitled—the amount of the supplement and how it is to be paid; and

that the claimant may apply for review of the determination in the manner set out in Part 5.

The determination is not ineffective by reason only that the requirements of subsection (1) are not complied with.

(1) Subject to this section, if an individual is not required to make a claim for single income family supplement in relation to a period (the past period) in an income year (the past period income year), the Secretary must pay any amount of single income family supplement the individual is eligible for in relation to that past period:

on the day that the Secretary considers to be the earliest day on which it is reasonably practicable for the amount to be paid; and

in such manner as the Secretary considers appropriate.

Note: Subsection 65K(2) sets out when a claim for single income family supplement is not required.

If either or both of the following apply:

the individual is required to lodge an income tax return for the past period income year;

the following apply:

a person is the individual’s partner at any time during the past period;

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

then the amount of single income family supplement cannot be paid to the individual unless, in relation to each person who is required to lodge an income tax return for that income year, an assessment has been made under the Income Tax Assessment Act 1936 of the tax payable on that person’s taxable income for that income year.

If either or both of the following apply:

the individual is required to lodge an income tax return for the past period income year, but the individual has not lodged the return before the end of:

the first income year after the past period income year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the individual from lodging the return before the end of that first income year;

the following apply:

a person is the individual’s partner at any time during the past period;

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

that person has not lodged the return before the end of the first income year after the past period income year, or of such further period (if any) as the Secretary allows if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the income tax return before the end of that first income year;

then the amount of single income family supplement is not to be paid to the individual.

The further period referred to in subparagraph (3)(a)(ii) or (3)(b)(iii) must end no later than the end of the second income year after the past period income year.

This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

If an individual is entitled to be paid an amount of single income family supplement under a determination on a claim for payment of single income family supplement:

for a past period; or

by single payment/in substitution because of the death of another individual;

the Secretary must pay the amount to the individual at such time and in such manner as the Secretary considers appropriate.

This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

If a determination is in force under which the claimant is entitled to be paid single income family supplement for a past period, the Secretary may request the claimant to give the Secretary, within 28 days of the request being made, a written statement, in relation to a specified TFN determination person, of whichever of the kinds set out in subsections (2), (3) and (4) the claimant chooses.

Statement of tax file number

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

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

The second kind of statement that can be made is a statement by the TFN determination person that the person:

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

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

authorises the Commissioner of Taxation to tell the Secretary:

whether the person has a tax file number; and

if the person has a tax file number—that number.

Statement that an application for a tax file number is pending

The third kind of statement that can be made is a statement by the TFN determination person that the person:

has an application for a tax file number pending; and

authorises the Commissioner of Taxation to tell the Secretary:

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

if the application is refused—that the application has been refused; or

if the application is withdrawn—that the application has been withdrawn.

Non-compliance with request

If:

the Secretary makes a request under subsection 65KR(1); and

the claimant does not comply with the request within 28 days of the request being made;

then, subject to subsection (2), the consequence in subsection (7) applies.

Exemption from request under subsection 65KR(1)

The Secretary may determine that the consequence in subsection (7) does not apply if:

the TFN determination person concerned is or was the claimant’s partner; and

the claimant cannot obtain from the person:

the person’s tax file number; or

a statement by the person under subsection 65KR(3) or (4).

Statement made by TFN determination person under subsection 65KR(3)

If:

the Secretary makes a request under subsection 65KR(1); and

by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 65KR(3); and

the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has no tax file number;

the consequence in subsection (7) applies.

Statement made by TFN determination person under subsection 65KR(4)

If:

the Secretary makes a request under subsection 65KR(1); and

by the end of 28 days after the request is made, the claimant gives the Secretary a statement by the TFN determination person of the kind set out in subsection 65KR(4); and

the Commissioner of Taxation subsequently tells the Secretary that the TFN determination person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (7) applies.

Statement made by TFN claim person under subsection 65KB(4)

If:

a TFN claim person has made a statement of the kind set out in subsection 65KB(4); and

a determination is in force under which the claimant is entitled to be paid single income family supplement for a past period; and

the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has no tax file number;

the consequence in subsection (7) applies.

Statement made by TFN claim person under subsection 65KB(5)

If:

a TFN claim person has made a statement of the kind set out in subsection 65KB(5); and

a determination is in force under which the claimant is entitled to be paid single income family supplement for a past period; and

the Commissioner of Taxation subsequently tells the Secretary that the TFN claim person has not applied for a tax file number, that an application by the person for a tax file number has been refused or that the person has withdrawn an application for a tax file number;

the consequence in subsection (7) applies.

Consequence—variation of determination

For the purposes of subsection (1), (3), (4), (5) or (6), the consequence is that the Secretary may, if the determination is one under which the claimant is entitled to be paid single income family supplement for a past period, vary the determination so that it has the effect that the claimant is not entitled to be paid single income family supplement for any day in the past period.

Consequence of Secretary later becoming aware of tax file number

If:

under subsection (7), the Secretary varies the determination; and

the Secretary finds out the tax file number of the TFN determination person or TFN claim person, as the case requires, at any time after the variation takes place;

the Secretary must vary the determination to undo the effect mentioned in subsection (7).

The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.

The variation is not ineffective by reason only that the requirements of subsection (1) are not complied with.

Payments of the following are absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise:

family tax benefit;

family tax benefit advances;

stillborn baby payments;

single income family supplement;

one-off payment to families;

economic security strategy payment to families;

back to school bonus or single income family bonus;

clean energy advance;

ETR payment;

2020 economic support payment;

additional economic support payment 2020;

additional economic support payment 2021.

Subsection (1) has effect subject to:

section 84 (about deductions from a person’s family tax benefit to repay a debt of the person); and

section 84A (about setting off a person’s entitlement to family assistance against a debt of the person); and

section 87A (setting off debts against various payments);

section 92 (about a person consenting to deductions from the person’s family tax benefit to repay the debt of someone else); and

section 92A (about setting off family assistance of a person to repay the debt of another person); and

Division 3 of Part 8B (about payments to payment nominee); and

the Commissioner of Taxation); andsection 225 (about making of deductions from family assistance for payment to

section 226 (about setting off a family assistance entitlement against a tax liability); and

section 227 (about deductions from family tax benefit to repay certain child support debts); and

(fa) Social Security (Administration) Act 1999; andPart 3AA of the

(g) Social Security (Administration) Act 1999.Part 3B of the

If:

a person has an account with a financial institution; and

payments of any of the kinds mentioned in subsection 66(1) are being paid, or have been paid, to the credit of the account; and

a court order in the nature of a garnishee order comes into force in respect of the account;

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

The saved amount is worked out as follows:

Method statement

Step 1. Work out the total amount of the payments mentioned in subsection (1) that have been paid to the credit of the account during the 4 week period immediately before the court order came into force.

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

Individuals must make a claim for CCS in order to become entitled to be paid CCS or ACCS in relation to child care provided to a child.

In order to become entitled to be paid ACCS (grandparent) or ACCS (transition to work), an application is needed as well as the claim for CCS.

The Secretary will determine whether an individual is eligible for CCS for a child. If the individual is eligible, weekly determinations are then made about how much (if any) CCS or ACCS is to be paid each week.

Weekly payments are mostly made via the child care service provider, who will pass them on to the individual (usually as a fee reduction).

Broadly, recipients of CCS and ACCS have responsibilities to keep the Secretary informed about changes in their circumstances that might affect their eligibility for or entitlement to CCS or ACCS, and to respond to requests for information.

An approved provider who is eligible for ACCS (child wellbeing) for a child does not need to make a claim, but does need to make a declaration in order to become entitled to be paid the ACCS. Providers also have responsibilities to keep the Secretary informed and respond to requests for information.

It is also possible for individuals to claim CCS or ACCS in substitution for an individual who has died. If an individual is entitled to be paid such an amount, it is paid directly to the individual.

Note: For the constitutional basis of the provisions of this Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers), see section 85AB of the Family Assistance Act.

An individual may, in accordance with this Part, become entitled to be paid:

CCS by fee reduction;

ACCS by fee reduction;

CCS or ACCS in substitution for an individual who has died.

An approved provider may, in accordance with this Part, become entitled to be paid ACCS (child wellbeing).

Claims for CCS must include particular information and be made in a particular way. Among other things, information is needed about bank account details and tax file numbers.

A claim that does not meet the requirements is taken not to have been made.

The only way that an individual (other than an approved provider) can become entitled to be paid CCS or ACCS is to make a claim in respect of a child for CCS in accordance with this Division.

Note 1: As well as making a claim for CCS, an individual who wants to be paid ACCS (grandparent) or ACCS (transition to work) must apply for that kind of ACCS. See paragraphs 67CD(4)(a) and (6)(a).

Note 2: An approved provider does not have to make a claim to be entitled to be paid ACCS (child wellbeing), but does need to make a declaration. See paragraph 67CH(1)(c).

The only persons who can make a claim for CCS in accordance with this Division are individuals.

An individual may make a claim in respect of a child for CCS:

by fee reduction; or

in substitution for an individual who has died.

A claim made by an individual in respect of a child for CCS is effective if:

the claim is made in a form and manner approved by the Secretary; and

the claim contains the information, and is accompanied by the documents, required by the Secretary; and

the claim contains details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid; and

unless paragraph (e) applies—the claim contains the tax file number of each TFN claim person; and

if the claim is for CCS in substitution for an individual who has died—the claim contains the tax file number of each TFN substitution person; and

if the claim is for CCS in substitution for an individual who has died—the claim is made before the end of the income year after the income year in which the individual died; and

any other requirements in the Secretary’s rules are met; and

no other provision in this Division prevents the claim being effective.

The Secretary may make a written determination that paragraph (1)(d) does not apply in relation to a claim for 28 days after the day the determination is made, if the Secretary is satisfied that it is appropriate in the circumstances to do so.

If:

a determination under subsection (2) is made in relation to a claim; and

the Secretary is satisfied that it is appropriate in the circumstances that paragraph (1)(d) not apply in relation to the claim indefinitely;

the Secretary may, before the end of the 28 days after the day the determination is made, make a further written determination accordingly.

A claim that is not effective is taken not to have been made.

A claim is taken not to have been made by an individual if:

the Secretary has made a determination under subsection 67BE(2) in relation to the claim; and

at the end of the 28 days after the day the determination was made:

if the Secretary has made a further determination under subsection 67BE(3) in relation to the claim—the individual has not provided the individual’s tax file number; or

if the Secretary has not made a further determination under subsection 67BE(3) in relation to the claim—the individual has not provided the tax file number of each TFN claim person.

The Secretary’s rules may prescribe other circumstances in which a claim is taken not to have been made.

An individual or an approved provider who is eligible for CCS or ACCS is only entitled to be paid CCS or ACCS if the Secretary has made a determination to that effect.

For individuals who claim in respect of a child for CCS by fee reduction, the Secretary will make an initial determination of the individual’s eligibility for CCS for the child. Once this is in effect, determinations are made, for each week, about the individual’s entitlement to CCS or ACCS that week.

To be entitled to be paid for a week, the individual must:

be eligible for CCS or ACCS (generally); and

meet some additional entitlement conditions.

The additional entitlement conditions mean that not everyone who is eligible for CCS or ACCS will be entitled to be paid for every week. In particular, individuals need to have met the CCS reconciliation conditions for previous income years for which they were entitled to CCS (usually these conditions are met by obtaining a timely tax assessment) and to have kept the Secretary up to date about changes affecting eligibility or entitlement.

Even if the Secretary determines that an individual is entitled to be paid CCS for a week, the individual might later have to repay the CCS if the individual does not meet the CCS reconciliation conditions. (This does not apply to ACCS.)

Determinations are also made each week in relation to an approved provider’s entitlement to be paid ACCS (child wellbeing) for a child.

One-off determinations are made in relation to an individual’s entitlement to be paid CCS or ACCS in substitution for an individual who has died.

An individual or an approved provider is only entitled to be paid CCS or ACCS if the Secretary has made a determination to that effect under this Division.

The Secretary is to make determinations under this Division on the basis of the information available to the Secretary at the time of making the determination.

Note: Part 5 provides for review of determinations, including in relation to the use of information in circumstances where information becomes available after a determination is made.

At any time, an individual or an approved provider is entitled to be paid, in accordance with this Part, the amount of CCS or ACCS (if any) for a week specified in whichever child care decision is in effect at the time for the week.

However, an individual who is entitled to be paid CCS for sessions of care provided to a child in a week:

ceases to be entitled to be paid that CCS, and is taken never to have been entitled to be paid that CCS, if the individual has not met the CCS reconciliation conditions, for the income year in which the CCS fortnight that includes the week starts, by the first deadline for the income year; and

cannot again become entitled to be paid that CCS before the individual meets the CCS reconciliation conditions for the income year.

Note 1: See the Secretary is required to make in these circumstances.section 105E for the determinations

Note 2: CCS payments for an income year are capped if the CCS reconciliation conditions for the income year are met after the second deadline for the income year (see subsection 105D(2A)).

Subsection (4) applies despite any other provision of this Act or the Family Assistance Act or any determination in effect to the contrary.

Subdivision B—Determinations for individuals claiming CCS by fee reduction

Determination on effective claim

If an individual makes an effective claim in respect of a child for CCS by fee reduction, the Secretary must determine:

if, when making the determination, the Secretary is satisfied that the requirements in subparagraphs 85BA(1)(a)(i) to (iv) of the Family Assistance Act are met in relation to the claim—that the individual is eligible for CCS by fee reduction for the child; and

if not so satisfied—that the individual is not eligible for CCS by fee reduction for the child.

Cessation of eligibility because the CCS reconciliation conditions not met by second deadline

(1A) The Secretary must determine that an individual for whom a determination (the earlier determination) under paragraph (1)(a) is in effect in relation to a child is not eligible for CCS by fee reduction for the child if the individual does not meet the CCS reconciliation conditions for an income year by the second deadline for the income year.

Subsection (1A) only applies in relation to the claim in respect of which the earlier determination was made.

Cessation of eligibility on discretionary grounds

The Secretary may determine that an individual for whom a determination under paragraph (1)(a) is in effect in relation to a child is not eligible for CCS by fee reduction for the child, if any of the following apply:

the Secretary is satisfied that the individual has ceased to be eligible, and is not reasonably likely to become eligible again, for CCS by fee reduction for sessions of care provided to the child;

the child ceased to meet the immunisation requirements in section 6 of the Family Assistance Act more than 63 days ago;

a report under the Secretary in relation to:section 204B for a week, indicating that a session of care in relation to which the individual is the claimant has been provided to the child in the week, has not been given to

unless subparagraph (ii) applies—at least 26 consecutive weeks; or

if the Minister’s rules prescribe a different number of consecutive weeks for the purposes of this subparagraph—at least that number of consecutive weeks;

the Secretary is satisfied that the individual:

does not intend that the child be enrolled for care by a child care service; or

does not intend that the child attend any sessions of care provided by a child care service.

Cessation of eligibility on request

The Secretary may determine that an individual for whom a determination under paragraph (1)(a) is in effect in relation to a child is not eligible for CCS by fee reduction for the child, if the individual requests the Secretary, in a form and manner approved by the Secretary, to do so. The Secretary may make the determination despite the individual being eligible.

Date of effect

A determination made under paragraph (1)(a):

takes effect on the day specified in the determination in accordance with subsection (4A) or (4B); and

continues in effect until any of the following happens:

it is superseded by a determination made under subsection (1A), (2) or (3);

it is set aside on review;

a day or event (if any) specified in the determination as the day or event on which the determination ceases to have effect;

the individual dies.

If subsection (4B) does not apply, the day specified in the determination must be the first day for which the Secretary is satisfied that the requirements in subparagraphs 85BA(1)(a)(i) to (iv) of the Family Assistance Act are met that is also:

the first Monday of a CCS fortnight; and

not more than 28 days before the day the claim was made.

If:

(a) the Secretary has determined under subsection (1A) that the individual is not eligible for CCS by fee reduction in relation to a child because the individual did not meet the CCS reconciliation conditions for an income year (the relevant income year) by the second deadline for the relevant income year; and

the Secretary later determines under paragraph (1)(a) that the individual is eligible for CCS by fee reduction in relation to the child;

the day specified in the later determination must be the later of:

the first Monday of a CCS fortnight that is not more than 28 days before the day the claim in respect of which the later determination was made; and

the first Monday of the CCS fortnight beginning on or after the day the individual met the CCS reconciliation conditions for the relevant income year.

A determination made under paragraph (1)(b) has effect from the day the determination is made.

A determination made under subsection (1A) has effect from the first Monday of the CCS fortnight beginning after the second deadline for the income year.

A determination made under subsection (2) or (3) has effect from the day specified in the determination (which may be earlier than the day the determination is made).

Preconditions for making determinations

The Secretary may make a determination under this section for an individual for a week, in relation to sessions of care provided to a child by an approved child care service, only if:

a determination that the individual is eligible for CCS by fee reduction for the child is in effect under paragraph 67CC(1)(a) in relation to any day in the week; and

the provider of the service has given the Secretary a report under section 204B (requirement to report about children for whom care is provided) in relation to the child for the week, including such a report as varied, substituted or corrected under subsection 204B(6) or section 204C; and

if the Secretary gives the individual a notice under subsection (11) in relation to the child’s enrolment for those sessions—the individual has complied with the notice.

For the purposes of paragraph (1)(b), the provider of the service is taken to have given the Secretary a report under section 204B in relation to the child for the week even if the report is not given by the day required under paragraph 204B(2)(d).

Note: The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).

Entitlement to be paid CCS

If the Secretary is satisfied that:

the individual is eligible for CCS under section 85BA of the Family Assistance Act for one or more of the sessions of care provided by the service to the child in the week, or would be eligible except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and

the individual meets the information requirements in subsection (10) for the week; and

in the case where all of the following apply:

(i) the Secretary has made a previous determination under this section that the individual is entitled to be paid CCS for a session of care in a week in an income year (the relevant income year);

the first deadline for the relevant income year has passed;

a CCS fortnight has begun after the first deadline for the relevant income year has passed;

the individual has met the CCS reconciliation conditions for the relevant income year on or before the first Monday of the CCS fortnight in which the week referred to in paragraph (a) occurs; and

none of subsections (3), (4) and (6) apply in relation to the sessions of care; and

the amount of CCS to which the individual will become entitled for the sessions of care is more than nil;

the Secretary must determine:

that the individual is entitled to be paid CCS for the sessions of care referred to in paragraph (a); and

the amount of CCS the individual is entitled to be paid.

Note: See subsection (1) for preconditions for making determinations under this subsection.

Entitlement to be paid ACCS (child wellbeing) or ACCS (temporary financial hardship)

If the Secretary is satisfied that:

the individual is eligible for ACCS under section 85CA or 85CG of the Family Assistance Act for one or more sessions of care provided by the service to the child in the week, or would be except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and

there is no determination in effect under subsection 67CH(2) that a provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and

the individual meets the information requirements in subsection (10) for the week; and

in the case where all of the following apply:

(i) the Secretary has made a previous determination under this section that the individual is entitled to be paid ACCS for a session of care in a week in an income year (the relevant income year);

the first deadline for the relevant income year has passed;

a CCS fortnight has begun after the first deadline for the relevant income year has passed;

the individual has met the CCS reconciliation conditions for the relevant income year on or before the first Monday of the CCS fortnight in which the week referred to in paragraph (a) occurs;

the Secretary must determine:

that the individual is entitled to be paid ACCS (child wellbeing) or ACCS (temporary financial hardship) (as applicable) for the sessions of care referred to in paragraph (a); and

the amount of ACCS the individual is entitled to be paid.

Note: See subsection (1) for preconditions for making determinations under this subsection.

Entitlement to be paid ACCS (grandparent)

If the Secretary is satisfied that:

the individual has applied to the Secretary, in a form and manner approved by the Secretary, and within any time period approved by the Secretary, for ACCS (grandparent) in relation to the week; and

the application contains the information, and is accompanied by the documents, required by the Secretary; and

the individual is eligible for ACCS under section 85CJ of the Family Assistance Act for one or more sessions of care provided by the service to the child in the week, or would be except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and

there is no determination in effect under subsection 67CH(2) that a provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and

the individual meets the information requirements in subsection (10) for the week; and

in the case where all of the following apply:

(i) the Secretary has made a previous determination under this section that the individual is entitled to be paid ACCS for a session of care in a week in an income year (the relevant income year);

the first deadline for the relevant income year has passed;

a CCS fortnight has begun after the first deadline for the relevant income year has passed;

the individual has met the CCS reconciliation conditions for the relevant income year on or before the first Monday of the CCS fortnight in which the week referred to in paragraph (a) occurs;

the Secretary must determine:

that the individual is entitled to be paid ACCS (grandparent) for the sessions of care referred to in paragraph (c); and

the amount of ACCS (grandparent) the individual is entitled to be paid.

Note: See subsection (1) for preconditions for making determinations under this subsection.

A determination cannot be made under subsection (4) for an individual for a week if the CCS fortnight that includes the week starts more than 28 days before the individual made the application referred to in paragraph (4)(a).

Entitlement to be paid ACCS (transition to work)

If the Secretary is satisfied that:

the individual has applied to the Secretary, in a form and manner approved by the Secretary, and within any time period approved by the Secretary, for ACCS (transition to work) in relation to the week; and

the application contains the information, and is accompanied by the documents, required by the Secretary; and

the individual is eligible for ACCS under section 85CK of the Family Assistance Act for one or more sessions of care provided by the service to the child in the week, or would be except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and

there is no determination in effect under subsection 67CH(2) that a provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and

the individual meets the information requirements in subsection (10) for the week; and

in the case where all of the following apply:

(i) the Secretary has made a previous determination under this section that the individual is entitled to be paid ACCS for a session of care in a week in an income year (the relevant income year);

the first deadline for the relevant income year has passed;

a CCS fortnight has begun after the first deadline for the relevant income year has passed;

the individual has met the CCS reconciliation conditions for the relevant income year on or before the first Monday of the CCS fortnight in which the week referred to in paragraph (a) occurs;

the Secretary must determine:

that the individual is entitled to be paid ACCS (transition to work) for the sessions of care referred to in paragraph (b); and

the amount of ACCS (transition to work) the individual is entitled to be paid.

Note: See subsection (1) for preconditions for making determinations under this subsection.

A determination cannot be made under subsection (6) for an individual for a week if the CCS fortnight that includes the week starts before the individual made the application referred to in paragraph (6)(a).

No entitlement to be paid CCS or ACCS

If the Secretary is not satisfied as referred to in subsection (2), (3), (4) or (6), the Secretary must determine that the individual is not entitled to be paid CCS or ACCS for the sessions of care provided to the child by the service in the week.

Immunisation grace period

(9) A session of care is provided on a day in an immunisation grace period for a child if:

on the day, the child does not meet the immunisation requirements in section 6 of the Family Assistance Act; and

the day is no more than 63 days after the day the child ceased to meet the immunisation requirements.

Meeting the information requirements

(10) An individual meets the information requirements for a week if, on a day in the week:

either of the following applies:

the Secretary has the details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid;

the Secretary made a request of the individual under section 67FE no more than 28 days ago; and

any of the following applies:

the Secretary has the tax file number of each TFN determination person;

the Secretary made a determination under subsection 67BE(2) or (3) in relation to the individual’s claim no more than 28 days ago;

the Secretary made a request of the individual under section 67FG no more than 28 days ago;

the Secretary has the tax file number of the individual and is satisfied that it is unreasonable in the circumstances for the individual to provide the tax file number of each TFN determination person other than the individual;

if, before the week, a period for giving information or producing a document required under Division 1 of Part 6 had ended without the individual giving the information or producing the document—the individual has given the information or produced the document.

Notice requiring information about enrolments

For paragraph (1)(e), the Secretary may, by written notice, require an individual to give to the Secretary, in a form and manner approved by the Secretary, information stated in the notice in relation to the child’s enrolment for sessions of care provided, or to be provided, by an approved child care service.

Notice to individual

The Secretary must give written notice to an individual for whom any of the following determinations are made, no later than 7 days after making the determination:

a determination under section 67CC about the individual’s eligibility for CCS for a child;

a determination under section 67CD about the individual’s entitlement to be paid CCS or ACCS for a week, if the determination is different from a determination made under that section for the individual for the previous week for any of the following reasons:

a change in the individual’s applicable percentage;

a change in the individual’s subsidised hours.

At least once every CCS quarter, the Secretary must give written notice to an individual for whom determinations are made under section 67CD for weeks starting in the CCS quarter.

(3) A CCS quarter is the period of 3 months starting on the first Monday of the first CCS fortnight each January, April, July and October.

Notice to providers

The Secretary must give written notice of a determination made under section 67CD to the provider of the child care service that provided the sessions of care to which the determination relates, as soon as practicable after making the determination.

A notice under subsection (4) may be given to a provider by making the notice available to the provider using an electronic interface.

If the Secretary has decided to pay the fee reduction amount in relation to a determination under section 67CD directly to the individual under subsection 67EC(2), the notice under subsection (4) of this section must include a statement to that effect.

Subdivision C—Determinations for individuals claiming CCS or ACCS in substitution for individual who has died

Preconditions for making determinations

(1) The Secretary may make a determination under this section for an individual (the substitute) only if:

the substitute has made an effective claim in respect of a child for CCS in substitution for an individual who has died; and

the provider of a child care service that provided sessions of care to the child in a week to which the claim relates has given the Secretary a report under section 204B (requirement to report about children for whom care is provided) in relation to the child for each week in which such sessions of care were provided, including such a report as varied, substituted or corrected under subsection 204B(6) or section 204C; and

either of the following applies:

the Secretary has the details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid;

the Secretary made a request of the individual under section 67FE no more than 28 days ago.

For the purposes of paragraph (1)(b), the provider of the child care service is taken to have given the Secretary a report under section 204B in relation to the child for a week even if the report is not given by the day required under paragraph 204B(2)(d).

Note: The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).

Individual entitled to be paid CCS or ACCS in substitution

If the Secretary is satisfied that the substitute is eligible for an amount of CCS or ACCS under section 85DA of the Family Assistance Act, the Secretary must determine in writing:

that the substitute is entitled to be paid CCS or ACCS in substitution for the individual who has died; and

the amount of CCS or ACCS that the substitute is entitled to be paid.

Individual not entitled to be paid CCS or ACCS in substitution

If the Secretary is not satisfied as referred to in subsection (2), the Secretary must determine that the substitute is not entitled to be paid CCS or ACCS in substitution for the individual who has died.

The Secretary must give written notice to an individual for whom a determination is made under section 67CF about the individual’s entitlement to be paid CCS or ACCS in substitution for an individual who has died, no later than 7 days after making the determination.

Subdivision D—Determinations for approved providers

Preconditions for making determinations

The Secretary must make a determination under this section for an approved provider for a week, in relation to sessions of care provided by an approved child care service of the provider to a child, if:

either of the following is in effect in relation to the child for the week:

a certificate given by the provider under section 85CB of the Family Assistance Act;

a determination made by the Secretary under section 85CE of the Family Assistance Act; and

the provider has given the Secretary a report for the week under section 204B (requirement to report about children for whom care is provided) in relation to the child, including such a report as varied, substituted or corrected under subsection 204B(6) or section 204C; and

the provider has given the Secretary a declaration, in a form approved by the Secretary:

for a certificate or determination in effect because of subparagraph 85CA(2)(b)(i) of the Family Assistance Act—that the provider has made reasonable endeavours to identify an individual who is eligible for CCS (child wellbeing) for the sessions of care and has not been able to identify anyone; or

for a certificate or determination in effect because of subparagraph 85CA(2)(b)(ii) of the Family Assistance Act—that the child is in a class prescribed for the purposes of that subparagraph.

For the purposes of paragraph (1)(b), the provider is taken to have given the Secretary a report for the week under section 204B in relation to the child even if the report is not given by the day required under paragraph 204B(2)(d).

Note: The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).

Provider entitled to be paid ACCS (child wellbeing)

If the Secretary is satisfied that the provider is eligible for ACCS under subsection 85CA(2) of the Family Assistance Act for sessions of care provided to the child in the week, the Secretary must determine in writing:

that the provider is entitled to be paid ACCS (child wellbeing) for those sessions of care; and

the amount of ACCS (child wellbeing) that the provider is entitled to be paid.

Provider not entitled to be paid ACCS (child wellbeing)

If the Secretary is not satisfied as referred to in subsection (2), the Secretary must determine in writing that the provider is not entitled to be paid ACCS (child wellbeing) for those sessions of care.

The Secretary must give written notice of a determination made under this Subdivision to the approved provider for whom the determination was made as soon as practicable.

A notice under subsection (1) may be given to an approved provider by making the notice available to the provider using an electronic interface.

To work out the amount of CCS an individual is entitled to be paid for a week, it is necessary to know the individual’s adjusted taxable income for the income year the week relates to.

The final amount of the individual’s income for the income year usually cannot be known until after the income year has ended.

In the meantime, the Secretary is able to rely on an estimate provided by the individual, or on an indexed estimate or the indexed actual income of an earlier income year.

After the individual meets the CCS reconciliation conditions, any underpayment to the individual will generally be topped up and any overpayments become debts due to the Commonwealth.

Determinations under section 67CD

This section applies if, at the time of making a determination under section 67CD for a week in a CCS fortnight, for an individual who is not eligible for any kind of ACCS, the individual has not met the CCS reconciliation conditions.

Estimate

The Secretary may make the determination under section 67CD on the basis of the most recent of whichever of the following estimates (if any) exists on the first Monday of the CCS fortnight:

a reasonable estimate given to the Secretary by the individual;

the indexed estimate stated in a notice given to the individual under section 67DC and with a start day that has arrived or passed;

the indexed actual income stated in a notice given to the individual under section 67DD and with a start day that has arrived or passed.

No estimate

If none of the estimates referred to in subsection (2) exists on the first Monday of the CCS fortnight, the Secretary must determine under subsection 67CD(8) that the individual is not entitled to be paid CCS or ACCS.

The Secretary may calculate an indexed estimate for an individual under subsection (5), with a start day chosen by the Secretary, if:

the individual, or the individual’s partner, is a claimant for CCS by fee reduction; and

a determination is in effect under paragraph 67CC(1)(a) that the claimant is eligible for CCS for a child; and

information about the adjusted taxable income of the individual needed to make a determination under Division 3 for the claimant is not known; and

the claimant has given the Secretary an estimate of the amount needed that the Secretary considers to be reasonable.

If the Secretary calculates an indexed estimate for the individual, the Secretary may give the claimant a notice:

stating the indexed estimate for the individual; and

specifying the start day used in the Secretary’s calculation (which must be the first day of a CCS fortnight at least 14 days after the day the notice is given).

The Secretary must not give a notice under subsection (2) stating an indexed estimate for the individual with a start day in an income year if the Secretary has already given a notice under subsection (2) stating an indexed estimate for that individual with a start day in the same income year.

A notice given to a claimant under subsection (2) stating an indexed estimate for an individual has no effect if, before the start day specified in the notice for the indexed estimate, the Secretary gives the claimant a notice under subsection 67DD(2) stating an indexed actual income for the same individual. Any such notice under subsection 67DD(2) must specify a start day that is no earlier than the start day specified in the superseded notice.

Calculate an indexed estimate (which may be nil) for the individual by multiplying the individual’s current ATI number (see subsection (6)) by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

(6) For the purposes of subsection (5), the individual’s current ATI number is:

if, at the time of calculation, the Secretary has given the claimant a notice under subsection 67DD(2) stating an indexed actual income for the individual with a start day that has not arrived—the indexed actual income stated in the notice; or

if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 67DB (disregarding the effect for couples of section 67DE of this Act and clause 3AA of Schedule 3 to the Family Assistance Act); or

if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 67DB if the individual were the claimant (disregarding the effect for couples of section 67DE of this Act and clause 3AA of Schedule 3 to the Family Assistance Act).

A notice under subsection (2) is not a legislative instrument.

The Secretary may calculate an indexed actual income for an individual under subsection (4), with a start day chosen by the Secretary, if:

the individual, or the individual’s partner, is a claimant for CCS by fee reduction; and

a determination is in effect under paragraph 67CC(1)(a) that the claimant is eligible for CCS; and

information about the adjusted taxable income of the individual needed to make a determination under Division 3 for the claimant is not known; and

the most recent such determination made for the claimant was made on the basis of an indexed estimate or an indexed actual income; and

since the claimant was last given a notice under subsection 67DC(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for an individual, the claimant has not given the Secretary an estimate of the claimant’s adjusted taxable income that the Secretary considers to be reasonable; and

(f) the adjusted taxable income for an income year (actual income) of the individual (disregarding the effect for couples of clause 3AA of Schedule 3 to the Family Assistance Act) becomes known to the Secretary and it is the most recent income year for which the individual’s actual income is known to the Secretary.

If:

the Secretary calculates an indexed actual income for the individual; and

the indexed actual income is greater than the individual’s current ATI number (see subsection (5));

the Secretary may give the claimant a notice:

stating the indexed actual income for the individual; and

specifying the start day used in the Secretary’s calculation (which must be the start of a CCS fortnight at least 14 days after the day the notice is given).

A notice given to a claimant under subsection (2) stating an indexed actual income for an individual has no effect if, before the start day specified in the notice, the Secretary gives the claimant another notice under that subsection or a notice under subsection 55AA(2) stating an indexed estimate or indexed actual income for the same individual. Any other such notice must specify a start day that is no earlier than the start day specified in the superseded notice.

Calculate an indexed actual income (which may be nil) for the individual by multiplying the actual income of the individual which became known to the Secretary by the indexation factor, rounding the result to the nearest dollar and rounding 50 cents upwards. The indexation factor is the greater of 1 and the factor worked out to 3 decimal places as follows (increasing the factor by 0.001 if it would, if worked out to 4 decimal places, end in a number greater than 4):

where:

AWE means the amount published by the Australian Statistician in a document titled “Average Weekly Earnings” under the headings “Average Weekly Earnings, Australia—Original—Persons—All employees total earnings” (or, if any of those change, in a replacement document or under replacement headings).

highest previous November means the November in which, of all the Novembers from November 2004 to the November before the most recent November (inclusive), AWE was the highest.

most recent November means the November of the income year before the income year in which the start day occurs.

reference period, in a particular November, means the period described by the Australian Statistician as the last pay period ending on or before a specified day that is the third Friday of that November.

(5) For the purposes of paragraph (2)(b), the individual’s current ATI number is:

if, at the time of calculation, the Secretary has given the claimant a notice under subsection 67DC(2) or subsection (2) of this section stating an indexed estimate or indexed actual income for the individual with a start day that has not arrived—the indexed estimate or indexed actual income stated in the notice; or

if paragraph (a) does not apply and the individual is the claimant—the amount the Secretary is permitted to use for the individual under section 67DB (disregarding the effect for couples of section 67DE of this Act and clause 3AA of Schedule 3 to the Family Assistance Act); or

if paragraph (a) does not apply and the individual is the claimant’s partner—the amount the Secretary would be permitted to use for the individual under section 67DB if the individual were the claimant (disregarding the effect for couples of section 67DE of this Act and clause 3AA of Schedule 3 to the Family Assistance Act).

A notice under subsection (2) is not a legislative instrument.

This section applies in relation to any individual who is a member of a couple.

For the purposes of this Act or the Family Assistance Act, any reference to a determination under section 67CD being made on the basis of an indexed estimate, or an indexed actual income, for an individual or stated in a notice, is affected by subsection (3).

The reference is taken to be a reference to the determination being made on the basis of the indexed estimate, or the indexed actual income, for that individual or stated in that notice, combined with:

the indexed estimate or indexed actual income for the individual’s partner stated in a notice given to:

if the individual is the claimant for CCS or ACCS (grandparent)—the individual; or

if the individual is the partner of the claimant—the individual’s partner;

under subsection 67DC(2) or 67DD(2) with the most recent start day that has arrived or passed; or

if there is no such indexed estimate or indexed actual income—a reasonable estimate of the adjusted taxable income of the individual’s partner (disregarding the effect of clause 3AA of Schedule 3 to the Family Assistance Act) that has been given to the Secretary by the individual.

If an individual is entitled to be paid CCS or ACCS by fee reduction for sessions of care provided to a child in a week:

the Secretary pays the amount to the provider of the child care service (less a withholding amount in the case of CCS); and

the provider must pass on the amount to the individual within 14 days or a longer period directed by the Secretary (whether as a fee reduction or in any other way). The provider’s obligation to pass on the amount is dealt with in section 201A.

If the individual does not receive their full entitlement in this way, the entitlement is paid directly to them, though usually not until after the CCS reconciliation conditions are met.

Approved providers who are entitled to be paid ACCS (child wellbeing), and individuals who are entitled to be paid CCS or ACCS in substitution for an individual who has died, are paid their entitlements directly.

If a fee reduction decision is made for an individual in relation to sessions of care provided by a child care service to a child, the Secretary must pay the fee reduction amount for the decision to the credit of a bank account nominated and maintained by the provider of the service.

Note: However, the Secretary may instead pay the fee reduction amount directly to the individual (see subsection 67EC(2)).

(2) The following table sets out the decisions that are fee reduction decisions and the amount that is the fee reduction amount for each such decision. A reference to a provider being given notice of a fee reduction decision is a reference to the provider being given notice of the decision under the provision specified for the decision in the table.

(3) The withholding amount, for a payment, is the following percentage of the payment:

10%;

if the Minister’s rules prescribe a different percentage and paragraph (c) does not apply—the prescribed percentage;

if a determination made under subsection (4) applies to the individual—the percentage specified in the determination.

The Secretary may make a determination specifying a percentage for an individual for the purposes of paragraph (3)(c), if the Secretary is satisfied that the percentage is appropriate to manage a debt that has been or might be incurred by the individual under Part 4.

A determination made under subsection (4) is not a legislative instrument.

This section is subject to:

subsection 67EC(2) (direct payment to individuals); and

Part 4 (overpayments and debt recovery); and

paragraph 195H(1)(f) (suspension of payments); and

section 205B (setting off business continuity payments).

Before CCS reconciliation conditions met

If:

a decision is made for an individual in relation to sessions of care provided by an approved child care service to a child; and

the decision would be a fee reduction decision except that the child is not enrolled for care by the service when the decision is made;

the Secretary must pay the amount that would have been the fee reduction amount for the decision, in accordance with subsection (5):

directly to the individual; or

if the Secretary considers it appropriate—to another person:

on the individual’s behalf; or

to discharge or set off an obligation of the individual to the other person.

If:

a fee reduction decision is made for an individual in relation to sessions of care provided by an approved child care service to a child; and

the Secretary considers that it is appropriate in the circumstances;

the Secretary may pay the fee reduction amount directly to the individual in accordance with subsection (5) instead of under subsection 67EB(1) (payment to credit of approved provider’s bank account).

Fee reduction amounts not passed on

If a provider:

remits a fee reduction amount to the Secretary in accordance with paragraph 201A(1)(b); or

incurs a debt to the Commonwealth under section 71D in relation to a fee reduction amount;

the Secretary may pay the fee reduction amount directly to the individual in accordance with subsection (5).

After CCS reconciliation conditions met

If:

(a) an individual is entitled to be paid CCS or ACCS by fee reduction for sessions of care provided by an approved child care service in CCS fortnights starting in an income year (the relevant income year); and

the individual meets the CCS reconciliation conditions for the relevant income year; and

the total of the fee reduction amounts passed on by the provider of the service to the individual under section 201A, for fee reduction decisions for weeks in CCS fortnights starting in the relevant income year, is less than the total amount of CCS or ACCS the individual is entitled to be paid for those weeks;

the Secretary must pay so much of the difference as has not already been paid under subsection (1), (2) or (3) to the individual under subsection (5).

How amounts are to be paid under this section

Note: CCS payments for an income year are capped if the CCS reconciliation conditions for the income year are met after the second deadline for the income year (see subsection 105D(2A)).

The whole or any part of an amount mentioned in subsection (1), (2), (3) or (4) must be paid at such time as the Secretary considers appropriate:

to the credit of a bank account nominated and maintained by:

the individual; or

if the amount is to be paid to another person under paragraph (1)(b)—the other person; or

if the Secretary so directs—in a different way.

Without limitation, the Secretary may consider that it is not appropriate to make a payment under subsection (1), (2) or (3) until after the individual meets the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week to which the payment relates starts.

Provisions this section is subject to

This section is subject to:

Part 4 (overpayments and debt recovery); and

Division 3 of Part 8B (payments to payment nominees).

If an individual is entitled to be paid CCS or ACCS in substitution for an individual who has died, the Secretary must pay the amount of the entitlement, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the individual.

The Secretary may direct that the whole or part of the amount is to be paid in a different way. If the Secretary does so, the amount must be paid in accordance with the direction.

This section is subject to:

Part 4 (overpayments and debt recovery); and

Division 3 of Part 8B (payments to payment nominees).

If a provider is entitled to be paid an amount of ACCS (child wellbeing) for sessions of care provided to a child in a week, the Secretary must pay the amount, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the provider.

This section is subject to:

Part 4 (overpayments and debt recovery); and

paragraph 195H(1)(f) (suspension of payments); and

section 205B (setting off business continuity payments).

Individuals who are eligible for CCS or ACCS have a duty to keep the Secretary informed about changes of circumstances that might affect their eligibility or entitlement.

The Secretary may also request individuals from time to time to give information relevant to their eligibility or entitlement.

Providers have a duty to notify the Secretary if they consider that a child who has been considered to be at risk of serious abuse or neglect is not at risk. The Secretary may also request them to give information about various matters.

An individual must notify the Secretary as soon as practicable, in a manner set out in a notice given to the individual under section 67FD, if:

a determination is in effect under paragraph 67CC(1)(a) that the individual is eligible for CCS for a child; and

any of the following happens:

an event that causes the individual to cease to be eligible for CCS for sessions of care provided by an approved child care service to the child;

if the individual was eligible for a kind of ACCS—an event that causes the individual to cease to be eligible for that kind of ACCS for sessions of care provided by an approved child care service to the child;

an event that affects whether the individual is entitled to be paid CCS or a kind of ACCS, or the amount of CCS or ACCS the individual is entitled to be paid, for the child;

the individual becomes aware that an event referred to in subparagraph (i), (ii) or (iii) is likely to happen.

An individual commits an offence if the individual contravenes subsection (1).

Penalty: Imprisonment for 6 months.

Subsection (1) does not require an individual who has been eligible for ACCS (transition to work) to notify the Secretary of the end of the 24 week period referred to in paragraph 85CK(2)(b) of the Family Assistance Act.

To avoid doubt, subsection (1) does not require an individual who is eligible for CCS or ACCS for an Aboriginal or Torres Strait Islander child to notify the Secretary that the child is an Aboriginal or Torres Strait Islander child.

(1) An approved provider must notify the Secretary as soon as practicable, in a manner set out in a notice given to the provider under if:section 67FD,

a certificate given by the provider under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to a child for a week; and

the provider considers that the child is not at any risk of serious abuse or neglect during the week; and

the time for cancelling the certificate under section 85CC of the Family Assistance Act has passed.

An approved provider must notify the Secretary as soon as possible, in a manner set out in a notice given to the provider under section 67FD, if:

the provider knows that a determination made by the Secretary under section 85CE (determination for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to a child for a week; and

the provider considers that the child is not at any risk of serious abuse or neglect during the week.

A person commits an offence if the person contravenes subsection (1) or (2).

Penalty: 60 penalty units.

Subsection (1) and (2) apply even if the certificate or determination has ceased to have effect.

The Secretary must approve a manner of notification to be used to notify the Secretary of matters required to be notified under sections 67FB and 67FC.

The Secretary must give individuals to whom section 67FB applies and approved providers to whom section 67FC applies written notice of the approved manner.

If:

a determination is in effect under paragraph 67CC(1)(a) that an individual is eligible for CCS for a child; and

the Secretary is satisfied that the Secretary does not have the details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid;

the Secretary may, by written notice given to the individual, request the individual to give the Secretary the details of such a bank account within 28 days of the request.

If:

a determination is in effect under paragraph 67CC(1)(a) that an individual is eligible for CCS for a child; and

the Secretary does not know the tax file number of one or more of the TFN determination persons;

the Secretary may, by written notice given to the individual, request that the individual provide the tax file number of a specified TFN determination person within 28 days of the request.

The Secretary may, by written notice given to the approved provider of a child care service, require the provider to give the Secretary information in relation to any aspect of care provided or expected to be provided by the service.

The notice must:

specify the period in relation to which, or the intervals at which, the information is to be provided; and

be given in a form and manner approved by the Secretary.

Information given in response to the notice must be given in a form and manner approved by the Secretary.

The Secretary may, by written notice given to an individual for whom a determination is in effect under paragraph 67CC(1)(a) that the individual is eligible for CCS for a child, request the individual to give the Secretary, before the end of the period specified in the notice, the information specified in the notice in relation to the individual’s present or future eligibility or entitlement for CCS or ACCS.

Generally, a payment of CCS or ACCS is protected, subject to some exceptions related to debt management and payment to nominees.

Payments of the following amounts are absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise:

child care subsidy;

additional child care subsidy;

payments under section 67EB (fee reduction amounts);

payments under section 205A or 205C (business continuity payments).

Subsection (1) has effect subject to the following provisions:

paragraph 67EC(5)(b) and subsection 67ED(2) (about payment of CCS or ACCS in a different way);

section 84A (about setting off a person’s entitlement to family assistance against a debt of the person);

section 87A (setting off debts against various payments);

Division 3 of Part 8B (about payments to payment nominee).

If:

a person has an account with a financial institution; and

payments of any of the kinds mentioned in subsection 67GB(1) are being paid, or have been paid, to the credit of the account; and

a court order in the nature of a garnishee order comes into force in respect of the account;

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

The saved amount is worked out as follows:

Method statement

Step 1. Work out the total amount of the payments mentioned in subsection (1) that have been paid to the credit of the account during the 4 week period immediately before the court order came into force.

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

For the purposes of this Part, an amount of family assistance is taken to be paid to a person if:

the amount is applied against a liability of that person or another person for:

a primary tax; or

(ii) a debt under this Act or the Social Security Act 1991; or

the amount is set off under this Part against another amount.

Note: CCS or ACCS is also taken to have been paid to a person if a fee reduction amount is passed on to an individual (see section 201A).

For the purposes of this Part, a reference to an amount being paid to a person when the person is an approved provider includes a reference to an amount that, at the time when it was paid, was paid to an approved provider even if:

the provider is no longer approved; or

the provider is no longer approved in respect of the service concerned.

If an amount has been paid by way of family assistance, one-off payment to families, a payment under section 67EB, a payment under section 205A or 205C, economic security strategy payment to families, back to school bonus, single income family bonus, a clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021, the amount is a debt due to the Commonwealth only to the extent to which a provision of:

this Act; or

(b) the Data-matching Program (Assistance and Tax) Act 1990;

expressly provides that it is.

No entitlement to amount

If:

(a) an amount has been paid to a person by way of family tax benefit, stillborn baby payment or single income family supplement (the assistance) in respect of a period or event; and

the person was not entitled to the assistance in respect of that period or event;

the amount so paid is a debt due to the Commonwealth by the person.

Overpayment

If:

(a) an amount (the received amount) has been paid to a person by way of assistance; and

(b) the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.

No entitlement to advance

If:

a family tax benefit advance has been paid to an individual; and

the individual was not entitled to the advance;

the amount so paid is a debt due to the Commonwealth by the individual.

Overpayment

If:

(a) an amount (the received amount) of family tax benefit advance has been paid to an individual; and

(b) the received amount is greater than the amount (the correct amount) of family tax benefit advance that should have been paid to the individual under the family assistance law;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.

Debt arising during the repayment period for a family tax benefit advance

If:

an individual is paid a family tax benefit advance; and

the repayment period for the advance has not expired; and

one of the following occurs:

the individual ceases to be entitled to be paid family tax benefit by instalment;

the individual’s Part A rate becomes nil (before reduction under clause 5 or 25A of Schedule 1 to the Family Assistance Act);

the amount of unrepaid family tax benefit advance becomes a debt due to the Commonwealth by the individual.

Debt arising due to variation or review after the repayment period for a family tax benefit advance has expired

(4) If:

an individual is paid a family tax benefit advance; and

the individual’s Part A rate has been reduced under clause 5 or 25A of Schedule 1 to the Family Assistance Act to repay the advance; and

the repayment period for the advance has expired; and

due to a variation in a determination, or a variation or substitution of a decision on review (other than a variation under subsection 28(2) or (6)), the reduction in the individual’s Part A rate under clause 5 or 25A of Schedule 1 to the Family Assistance Act has not been sufficient to repay the advance; and

at the time of the variation of the determination, or the variation or substitution of the decision on review:

the individual is not entitled to be paid family tax benefit by instalment; or

the individual’s Part A rate is nil (before reduction under clause 5 or 25A of Schedule 1 to the Family Assistance Act);

the amount of the family tax benefit advance left unrepaid as a result of the variation of the determination, or the variation or substitution of the decision on review, becomes a debt due to the Commonwealth by the individual.

Debt arising due to variation under subsection 28(2) or (6)

Note: If the individual is entitled to be paid family tax benefit by instalment and has a Part A rate greater than nil, the unrepaid amount of the advance is to be repaid by reductions in the individual’s Part A rate (see clause 51 of Schedule 1 to the Family Assistance Act).

If:

an individual is paid a family tax benefit advance; and

the individual’s Part A rate has been reduced under clause 5 or 25A of Schedule 1 to the Family Assistance Act to repay the advance; and

due to a variation in a determination of the individual’s entitlement to family tax benefit made under subsection 28(2) or (6), the reduction in the individual’s Part A rate under clause 5 or 25A of Schedule 1 to the Family Assistance Act has not been sufficient to repay the advance;

the amount of the family tax benefit advance left unrepaid as a result of the variation of the determination becomes a debt due to the Commonwealth by the individual.

If a debt is created under subsection (5) and the Secretary varies the determination of the individual’s entitlement to family tax benefit under subsection 28(3) or (4), the debt is taken never to have been created.

Note: If, after the variation, the individual’s Part A rate was not sufficient to repay the advance, the unrepaid amount of the advance is to be repaid either by reductions in the individual’s Part A rate (see clauses 48 and 51 of Schedule 1 to the Family Assistance Act) or as a debt under subsection (3) or (4).

Debt arising due to determination under clause 45 of Schedule 1 to the Family Assistance Act

If:

an individual is paid a family tax benefit advance; and

the Secretary determines under clause 45 of Schedule 1 to the Family Assistance Act that the amount of the advance that is unrepaid is to be a debt;

the amount of the family tax benefit advance becomes a debt due to the Commonwealth by the individual.

Meaning of FTB advance debt

(8) The debt due to the Commonwealth under subsection (1), (2), (3), (4), (5) or (7) is an FTB advance debt.

If:

(a) an amount is paid to an individual (the recipient) by way of CCS for one or more sessions of care, but the recipient is not entitled to be paid CCS for the sessions of care; or

(b) an amount is paid to an individual (the recipient) by way of a kind of ACCS for one or more sessions of care, but the recipient is not entitled to be paid that kind of ACCS for the sessions of care; or

(c) an amount is paid to a provider (the recipient) by way of ACCS (child wellbeing) for a session of care provided to a child, but the recipient is not entitled to be paid ACCS (child wellbeing) for the session of care;

the amount is a debt due to the Commonwealth by the recipient.

If:

(a) a payment is made under incorrect account); andDivision 5 of Part 3A to a financial institution for the credit of an account kept with the institution (an

the Secretary is satisfied that the amount was intended to be paid for the credit of an account kept in the name of a person who is not the person, or one of the persons, in whose name the incorrect account is kept;

an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name the incorrect account is kept.

If:

(a) an amount (the received amount) is paid to an individual by way of CCS or ACCS for one or more sessions of care; and

(b) the received amount is greater than the amount (the correct amount) of CCS or ACCS the individual was entitled to be paid for the sessions of care;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the individual.

If:

(a) an amount (the received amount) is paid to a provider under section 67EE by way of ACCS (child wellbeing) for one or more sessions of care; and

(b) the received amount is greater than the amount (the correct amount) of ACCS (child wellbeing) the provider was entitled to be paid for the sessions of care;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the provider.

If a provider to whom notice of a fee reduction decision is given does not do one of the following within 14 days after the notice is given (or, if that period has been extended under subsection 201A(2A), within the extended period):

pass on the fee reduction amount for the decision to the individual to whom the decision relates;

remit the fee reduction amount to the Secretary in a manner approved by the Secretary;

an amount equal to the fee reduction amount is a debt due to the Commonwealth by the provider.

When this section applies

This section applies if:

(a) an amount (the CCS/ACCS amount) is paid to an individual by way of CCS or ACCS for a session of care provided by a child care service of a provider to a child on a day; and

the child did not attend any part of the session of care on the day; and

the day was:

before the day the child first attended a session of care provided by the service; or

after the last day the child attended a session of care provided by the service before the child ceased to be enrolled for care by the service; and

the service is not taken to have provided the session of care to the child on the day under subsection 10(2), (3) or (5) of the Family Assistance Act; and

the individual incurs a debt under subsection 71B(1) for the CCS/ACCS amount.

If debt is incurred before reconciliation

If the individual incurs the debt before the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:

the individual is not taken to have incurred the debt; and

the CCS/ACCS amount is instead a debt due to the Commonwealth by the provider.

If debt is incurred after reconciliation

If the individual incurs the debt after the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:

the amount of the debt is taken to be the amount of the withholding component of the CCS/ACCS amount (see subsection (4)); and

the amount of the fee reduction component of the CCS/ACCS amount is a debt due to the Commonwealth by the provider (see subsection (5)).

(4) The withholding component of the CCS/ACCS amount is the amount that would be the withholding amount under subsection 67EB(3), if it were assumed that:

subsections 67EB(3) and (4) applied for the purposes of this section; and

references to a payment in subsection 67EB(3) were instead references to the CCS/ACCS amount.

(5) The fee reduction component of the CCS/ACCS amount is the CCS/ACCS amount less the withholding component of the CCS/ACCS amount.

Interaction with section 71F

If:

under paragraph (2)(b), the provider incurs a debt for the CCS/ACCS amount; and

(b) under paragraph 71F(2)(b), the provider incurs a debt that consists wholly or partly of an amount (the corresponding 71F(2)(b) amount) that relates to the same session of care as the CCS/ACCS amount;

then:

if the CCS/ACCS amount is equal to, or more than, the corresponding 71F(2)(b) amount—the provider is taken not to have incurred so much of the debt under paragraph 71F(2)(b) that is equal to the corresponding 71F(2)(b) amount; and

if the corresponding 71F(2)(b) amount is more than the CCS/ACCS amount—the provider is taken not to have incurred a debt for the CCS/ACCS amount under paragraph (2)(b) of this section.

If:

under paragraph (3)(b), the provider incurs a debt for the amount of the fee reduction component of the CCS/ACCS amount; and

(b) under paragraph 71F(3)(b), the provider incurs a debt that consists wholly or partly of an amount (the corresponding 71F(3)(b) amount) that relates to the same session of care as the CCS/ACCS amount;

then:

if the amount of the fee reduction component is equal to, or more than, the corresponding 71F(3)(b) amount—the provider is taken not to have incurred so much of the debt under paragraph 71F(3)(b) that is equal to the corresponding 71F(3)(b) amount; and

if the corresponding 71F(3)(b) amount is more than the amount of the fee reduction component—the provider is taken not to have incurred a debt for the amount of the fee reduction component under paragraph (3)(b) of this section.

The Secretary may make a determination for an individual and a provider in the circumstances referred to in subsection (2). If the Secretary does so:

the provider is taken not to have incurred a debt that, apart from the determination, was incurred by the provider under subsection 71B(1) or 71C(2); and

the amount of the debt is instead a debt due to the Commonwealth by the individual.

The circumstances are that:

the individual makes a false or misleading statement; and

because of the statement, the provider is paid an amount by way of ACCS (child wellbeing) for one or more sessions of care provided by a service to a child who was in the care of the individual immediately before the sessions of care were provided; and

the provider incurs a debt under subsection 71B(1) or 71C(2) in relation to the payment.

When this section applies

This section applies if:

(a) an amount (the CCS/ACCS amount) is paid to an individual by way of CCS or ACCS for a session of care provided by a child care service of a provider; and

(b) all or part of the CCS/ACCS amount (the attributable component) is paid to the individual because the provider has:

made a false or misleading statement; or

failed to comply with the family assistance law; and

the individual incurs a debt under subsection 71B(1) or 71C(1) for the CCS/ACCS amount.

If debt is incurred before reconciliation

If the individual incurs the debt before the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:

the amount of the debt is taken to be reduced by the amount of the attributable component; and

the amount of the attributable component is instead a debt due to the Commonwealth by the provider.

If debt is incurred after reconciliation

If the individual incurs the debt after the individual meets the CCS reconciliation conditions for the income year in which the session of care occurs, then:

the amount of the debt is taken to be the amount of the withholding component of the CCS/ACCS amount (see subsection (4)); and

the amount of the fee reduction component of the CCS/ACCS amount (see subsection (5)) is a debt due to the Commonwealth by the provider.

(4) The withholding component of the CCS/ACCS amount is the amount that would be the withholding amount under subsection 67EB(3), if it were assumed that:

subsections 67EB(3) and (4) applied for the purposes of this section; and

references to a payment in subsection 67EB(3) were instead references to the CCS/ACCS amount.

(5) The fee reduction component of the CCS/ACCS amount is the CCS/ACCS amount less the withholding component of the CCS/ACCS amount.

If:

an amount is paid to a provider under the family assistance law; and

before the payment is made:

the provider’s approval, or the provider’s approval in respect of a service, is suspended by operation of section 197AB; or

the provider’s approval is cancelled by operation of subsection 197L(1); or

the provider’s approval is varied to remove a service from the approval by operation of subsection 197L(3); and

because of that suspension, cancellation or variation, the recipient should not have been paid the amount;

the amount paid is a debt due to the Commonwealth by the provider.

If:

a fee reduction amount is paid to a provider under section 67EB in relation to a session of care provided by a child care service of the provider on a day; and

after the payment is made, one of the following events occurs and takes effect on or before the day:

the provider’s approval is cancelled or suspended (other than by operation of section 197AB or subsection 197L(1));

the provider’s approval is varied to remove the service from the approval (other than by operation of subsection 197L(3));

the provider’s approval in respect of the service is suspended (other than by operation of section 197AB);

so much of the fee reduction amount as relates to the session of care is a debt due to the Commonwealth by the provider.

If:

an amount is paid under section 205A or 205C (business continuity payments) in respect of a child care service; and

any of the following occurs:

the approval of the provider of the service is suspended or cancelled;

the approval of the provider of the service is varied to remove the service from the approval;

the approval of the provider in respect of the service is suspended; and

the whole or a part of the amount has not already been set off against another amount under section 205B by the day the suspension, cancellation or variation takes effect;

then that whole or part is a debt due to the Commonwealth by the provider immediately before the provider’s approval was suspended, cancelled or varied.

If:

an amount is paid under section 205C (business continuity payments—emergency or disaster) in respect of a child care service; and

the provider of the service is not eligible for the whole or a part of the payment;

then that whole or part is a debt due to the Commonwealth by the provider.

If:

(a) a payment under incorrect account); andsection 205A or 205C is made to a financial institution for the credit of an account kept with the institution (an

the Secretary is satisfied that the amount paid to the institution was intended to be paid for the credit of an account kept in the name of a person who was not the person, or one of the persons, in whose name the incorrect account was kept;

an amount equal to the amount of the payment made to the institution is, subject to subsection 93A(5), a debt due to the Commonwealth by the person, or jointly and severally by the persons, in whose name the incorrect account was kept.

(1) This section applies in relation to an individual (the recipient) who has been paid a one-off payment to families (the relevant payment).

What determinations are relevant?

(2) Each of the following is a relevant determination in relation to the recipient:

if the relevant payment was made because, at that time, subsection 86(2) of the Family Assistance Act applied to the recipient (whether or not it was also made because subsection 86(3) of that Act also applied)—the determination referred to in paragraph 86(2)(a) of the Family Assistance Act;

(b) if the relevant payment was made because, at that time, subsection 86(3) of the Family Assistance Act applied to the recipient (whether or not it was also made because subsection 86(2) also applied)—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the, or an, instalment that satisfied paragraphs 86(3)(a), (b) and (c) of the Family Assistance Act was paid;

if the relevant payment was made because, at that time, subsection 86(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 86(4)(b) of the Family Assistance Act.

Situation in which whole amount is a debt

If:

after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to:

11 May 2004 (if the relevant determination is covered by paragraph (2)(a) or (b)); or

all or part of the 2002-03 income year (if the relevant determination is covered by paragraph (2)(c));

is or was (however described) changed, revoked, set aside, or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

unless subparagraph (ii) applies—the recipient; or

if the relevant determination is covered by paragraph (2)(b)—the other individual, or one of the other individuals, referred to in paragraph 86(3)(b) of the Family Assistance Act; and

had the change, revocation, setting aside or superseding occurred on or before 11 May 2004, the relevant payment would not have been made;

the amount of the relevant payment is a debt due to the Commonwealth by the recipient.

Situation in which part of amount is a debt

If:

after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to:

11 May 2004 (if the relevant determination is covered by paragraph (2)(a) or (b)); or

all or part of the 2002-03 income year (if the relevant determination was covered by paragraph (2)(c));

is or was (however described) changed, revoked, set aside, or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

unless subparagraph (ii) applies—the recipient; or

if the relevant determination is covered by paragraph (2)(b)—the other individual, or one of the other individuals, referred to in paragraph 86(3)(b) of the Family Assistance Act; and

had the change, revocation, setting aside or superseding occurred on or before 11 May 2004, the amount of the relevant payment would have been reduced;

the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.

(1) This section applies in relation to an individual (the recipient) who has been paid an economic security strategy payment to families (the relevant payment).

What determinations are relevant?

(2) Each of the following is a relevant determination in relation to the recipient:

if the relevant payment was made because, at that time, subsection 89(2) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 89(2)(a) of that Act;

if the relevant payment was made because, at that time, subsection 89(3) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 89(3)(a) of that Act;

if the relevant payment was made because, at that time, subsection 89(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 89(4)(a) of that Act;

(d) if the relevant payment was made because, at that time, subsection 89(5) of the Family Assistance Act applied to the recipient—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs 89(5)(a), (b) and (c) of the Family Assistance Act was paid;

if the relevant payment was made because, at that time, subsection 89(6) of the Family Assistance Act applied to the recipient—a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;

if the relevant payment was made because, at that time, subsection 89(7) of the Family Assistance Act applied to the recipient—a determination under the Veterans’ Children Education Scheme because of which the whole or part of the allowance was paid in the circumstances described in that subsection;

if the relevant payment was made because, at that time, subsection 89(8) of the Family Assistance Act applied to the recipient—a determination under the Military Rehabilitation and Compensation Act Education and Training Scheme because of which the whole or part of the allowance was paid in the circumstances described in that subsection;

(h) if the relevant payment was made because, at that time, subsection 93(2) of the Family Assistance Act applied to the recipient—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs 93(2)(a) and (b) of the Family Assistance Act was paid;

if the relevant payment was made because, at that time, subsection 93(3) of the Family Assistance Act applied to the recipient—a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;

if the relevant payment was made because, at that time, subsection 93(4) of the Family Assistance Act applied to the recipient—a determination under the Veterans’ Children Education Scheme because of which the allowance was paid in the circumstances described in that subsection;

if the relevant payment was made because, at that time, subsection 93(5) of the Family Assistance Act applied to the recipient—a determination under the Military Rehabilitation and Compensation Act Education and Training Scheme because of which the allowance was paid in the circumstances described in that subsection.

Situation in which whole amount is a debt

If:

after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 14 October 2008, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

unless subparagraph (ii) or (iii) applies—the recipient;

if the relevant determination is covered by paragraph (2)(d)—the recipient or the other individual, or one of the other individuals, covered by paragraph 89(5)(b) of the Family Assistance Act;

if the relevant determination is covered by paragraph (2)(e), (f) or (g)—the recipient or the student, or one of the students, covered by paragraph 89(6)(a), (7)(a) or (8)(a) of the Family Assistance Act; and

had the change, revocation, setting aside or superseding occurred on or before 14 October 2008, the relevant payment would not have been made;

the amount of the relevant payment is a debt due to the Commonwealth by the recipient.

Situation in which part of amount is a debt

If:

after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 14 October 2008, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the following person knowingly made a false or misleading statement, or knowingly provided false information:

unless subparagraph (ii) or (iii) applies—the recipient;

if the relevant determination is covered by paragraph (2)(d)—the recipient or the other individual, or one of the other individuals, covered by paragraph 89(5)(b) of the Family Assistance Act;

if the relevant determination is covered by paragraph (2)(e), (f) or (g)—the recipient or the student, or one of the students, covered by paragraph 89(6)(a), (7)(a) or (8)(a) of the Family Assistance Act; and

had the change, revocation, setting aside or superseding occurred on or before 14 October 2008, the amount of the relevant payment would have been reduced;

the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.

(1) This section applies in relation to an individual (the recipient) who has been paid a back to school bonus or a single income family bonus (the relevant payment).

What determinations are relevant?

(2) Each of the following is a relevant determination in relation to the recipient:

if the relevant payment was made because, at that time, subsection 95(2) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 95(2)(a) of that Act;

if the relevant payment was made because, at that time, subsection 95(3) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 95(3)(a) of that Act;

if the relevant payment was made because, at that time, subsection 95(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 95(4)(a) of that Act;

(d) if the relevant payment was made because, at that time, Social Security (Administration) Act 1999 that resulted in the recipient receiving the carer payment or disability support pension;section 98 of the Family Assistance Act applied to the recipient—the determination made under Part 3 of the

if the relevant payment was made because, at that time, subsection 101(2) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 101(2)(a) of that Act;

if the relevant payment was made because, at that time, subsection 101(3) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 101(3)(a) of that Act;

if the relevant payment was made because, at that time, subsection 101(4) of the Family Assistance Act applied to the recipient—the determination referred to in paragraph 101(4)(a) of that Act.

Situation in which whole amount is a debt

If:

after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 3 February 2009, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the recipient knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before 3 February 2009, the relevant payment would not have been made;

the amount of the relevant payment is a debt due to the Commonwealth by the recipient.

Situation in which part of amount is a debt

If:

after the relevant payment was made to the recipient, a relevant determination in relation to the recipient, at least so far as it relates to 3 February 2009, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the recipient knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before 3 February 2009, the amount of the relevant payment would have been reduced;

the amount by which the relevant payment would have been reduced is a debt due to the Commonwealth by the recipient.

(1) This section applies in relation to an individual who has been paid a clean energy advance.

(2) For the purposes of this section, the relevant determination in relation to the individual is the determination referred to in paragraph 103(1)(a) or (2)(a) or 104(1)(a) of the Family Assistance Act.

Situation in which whole amount is a debt

If:

after the advance was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to a day in the period starting on 1 July 2012 and ending on 30 June 2013, is or was (however described) changed, revoked, set aside or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before the day the advance was paid, the advance would not have been paid;

the amount of the advance is a debt due to the Commonwealth by the individual.

Situation in which part of amount is a debt

If:

after the advance was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to a day in the period starting on 1 July 2012 and ending on 30 June 2013, is or was (however described) changed, revoked, set aside or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before the day the advance was paid, the amount of the advance would have been reduced;

the amount by which the advance would have been reduced is a debt due to the Commonwealth by the individual.

This section applies in relation to an individual who has been paid an ETR payment.

(2) For the purposes of this section, each of the following is a relevant determination in relation to the individual:

if the ETR payment was made because, at that time, subsection 102A(1) of the Family Assistance Act applied to the individual—the determination referred to in paragraph 102A(1)(a) of that Act;

(b) if the ETR payment was made because, at that time, subsection 102A(2) of the Family Assistance Act applied to the individual—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs 102A(2)(a), (b), (c) and (e) of the Family Assistance Act was paid;

if the ETR payment was made because, at that time, subsection 102A(3) of the Family Assistance Act applied to the individual—a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;

(d) if the ETR payment was made because, at that time, subsection 102A(4) of the Family Assistance Act applied to the individual—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied:

paragraphs 102A(4)(a), (c), (d) and (f) of the Family Assistance Act was paid; or

paragraphs 102A(4)(b), (c), (d) and (f) of the Family Assistance Act was paid, if that instalment was paid to the individual;

(e) if the ETR payment was made because, at that time, subsection 102D(1) of the Family Assistance Act applied to the individual—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied paragraphs 102D(1)(a), (b) and (c) of the Family Assistance Act was paid;

if the ETR payment was made because, at that time, subsection 102D(2) of the Family Assistance Act applied to the individual—a determination under the ABSTUDY Policy Manual because of which the whole or part of the instalment was paid in the circumstances described in that subsection;

(g) if the ETR payment was made because, at that time, subsection 102D(3) of the Family Assistance Act applied to the individual—a determination made under Part 3 of the Social Security (Administration) Act 1999 because of which the instalment that satisfied:

paragraphs 102D(3)(a), (c) and (d) of the Family Assistance Act was paid; or

paragraphs 102D(3)(b), (c) and (d) of the Family Assistance Act was paid, if that instalment was paid to the individual;

if the ETR payment was made because, at that time, subsection 102F(1) of the Family Assistance Act applied to the individual—the determination referred to in paragraph 102F(1)(a) of that Act.

Situation in which whole amount is a debt

If:

after the ETR payment was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to 8 May 2012, is or was (however described) changed, revoked, set aside or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before the day the ETR payment was paid, the ETR payment would not have been paid;

the amount of the ETR payment is a debt due to the Commonwealth by the individual.

Situation in which part of amount is a debt

If:

after the ETR payment was paid to the individual, the relevant determination in relation to the individual, at least so far as it relates to 8 May 2012, is or was (however described) changed, revoked, set aside or superseded by another determination; and

the decision to change, revoke, set aside or supersede the relevant determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before the day the ETR payment was paid, the amount of the ETR payment would have been reduced;

the amount by which the ETR payment would have been reduced is a debt due to the Commonwealth by the individual.

This section applies in relation to an individual who has been paid a 2020 economic support payment because subsection 116(2), (3) or (4) of the Family Assistance Act applied to the individual on a day.

If:

after the payment was paid to the individual, the determination mentioned in that subsection of the Family Assistance Act, at least so far as the determination relates to that day, is or was (however described) changed, revoked, set aside, or superseded by another determination; and

the decision to change, revoke, set aside or supersede the determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before that day, the payment would not have been paid;

the amount of the payment is a debt due to the Commonwealth by the individual.

This section applies in relation to an individual who has been paid an additional economic support payment 2020 or additional economic support payment 2021 because subsection 123(2), (3) or (4) of the Family Assistance Act applied to the individual on a day.

If:

after the payment was paid to the individual, the determination mentioned in that subsection of the Family Assistance Act, at least so far as the determination relates to that day, is or was (however described) changed, revoked, set aside or superseded by another determination; and

the decision to change, revoke, set aside or supersede the determination is or was made for the reason, or for reasons including the reason, that the individual knowingly made a false or misleading statement, or knowingly provided false information; and

had the change, revocation, setting aside or superseding occurred on or before that day, the payment would not have been paid;

the amount of the payment is a debt due to the Commonwealth by the individual.

If:

a person applies to the ART for ART review or ART child care provider review of a decision; and

the ART makes an order under subsection 32(2) (ART may stay operation or implementation) of the ART Act; and

as a result of the order or the operation of subsection 107(3) (when ART’s decision on review comes into operation) of the ART Act, the amount that has in fact been paid to the person under the family assistance law is greater than the amount that should have been paid to the person under the family assistance law;

the difference between the amount that was in fact paid to the person and the amount that should have been paid is a debt due to the Commonwealth.

If:

an amount of family assistance, one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021 is paid by cheque; and

a person other than the payee obtains possession of the cheque from the payee; and

the cheque is not endorsed by the payee to the person; and

the person obtains value for the cheque;

the amount of the cheque is a debt due by the person to the Commonwealth.

If:

(a) a person (the recipient) is liable to repay an amount paid to the recipient under the family assistance law; and

the amount was paid to the recipient because the recipient contravened a provision of the family assistance law; and

another person is convicted of an offence:

(i) that is taken to have been committed because of Criminal Code; orsection 11.2 or 11.2A of the

(ii) against Criminal Code;section 11.4 or 11.5 of the

in relation to that contravention;

the recipient and the other person are jointly and severally liable to pay the debt.

If:

an amount has been paid to a person by way of family assistance; and

(b) the amount is a debt due to the Commonwealth under subsection 11(6) of the Data-matching Program (Assistance and Tax) Act 1990;

the amount so paid is recoverable by the Commonwealth.

If a debt by a person to the Commonwealth under a provision of this Part has not been wholly paid, the Secretary must give the person a notice specifying:

(a) the date on which it was issued (the date of the notice); and

the reason the debt was incurred, including a brief explanation of the circumstances that led to the debt being incurred; and

the period to which the debt relates; and

the outstanding amount of the debt at the date of the notice; and

the day on which the outstanding amount is due and payable; and

the effect of sections 78 and 78A; and

that a range of options is available for repayment of the debt; and

the contact details for inquiries concerning the debt.

The outstanding amount of the debt is due and payable on the 28th day after the date of the notice.

The Secretary may give more than one notice under subsection (1) in relation to a person and a debt of the person.

If:

a notice is given to a person under subsection 77(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

at the end of the due day, there is no arrangement in effect under section 91 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 78D and 78E.

(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:

the last day at the end of which any of the following remains unpaid:

the unpaid amount;

interest charge on any of the unpaid amount;

the day before the first day, after the due day, on which the person makes a payment under an arrangement under section 91 in relation to the debt.

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:

the unpaid amount;

the interest charge from previous days.

Note 1: For interest charge rate see section 78C.

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 78B.

If:

an arrangement is in effect under section 91 in relation to a person and a debt; and

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 78D and 78E.

(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:

the last day at the end of which any of the following remains unpaid:

the outstanding amount of the debt;

interest charge on any of the outstanding amount of the debt;

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;

the day before the day the arrangement is terminated under section 91.

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:

the outstanding amount of the debt;

the interest charge from previous days.

Note 1: For interest charge rate see section 78C.

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 78B.

Repayment arrangement is terminated

If:

an arrangement is in effect under section 91 in relation to a person and a debt; and

(b) the arrangement is then terminated under termination day);section 91 on a day (the

then:

the following amounts (if any) are due and payable on the 14th day after the termination day:

the outstanding amount of the debt;

interest charge on any of the outstanding amount of the debt; and

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 78D and 78E.

(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:

the last day at the end of which any of the following remains unpaid:

the outstanding amount of the debt;

interest charge on any of the outstanding amount of the debt;

the day before the first day, after that 14th day, on which the person makes a payment under another arrangement under section 91 in relation to the debt.

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:

the outstanding amount of the debt;

the interest charge from previous days.

Note 1: For interest charge rate see section 78C.

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 78B.

When interest charge is due and payable

The interest charge under section 78 or 78A for a day is due and payable to the Commonwealth at the end of that day.

Interest charge is a debt

The interest charge under section 78 or 78A for a day is a debt due to the Commonwealth by the person.

Provisions that do not apply to interest charge debt

Subsection 77(1) does not apply in relation to the debt referred to in subsection (2) of this section.

(1) For the purposes of sections 78 and 78A, 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.

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.

The base interest rate must be rounded to the second decimal place (rounding .005 upwards).

A person is not liable to pay interest charge under section 78 or 78A if on the day before the start of the period in respect of which the person would otherwise have been liable to pay that charge:

the person is receiving instalments of family tax benefit; or

the person is receiving a social security payment; or

(c) the person is receiving a payment of pension, veteran payment or allowance under the Veterans’ Entitlements Act 1986; or

the person is receiving instalments under the ABSTUDY scheme (also known as the Aboriginal Study Assistance Scheme) that includes an amount identified as living allowance; or

the person is receiving instalments under the Assistance for Isolated Children Scheme; or

the circumstances determined in an instrument under subsection (2) apply in relation to the person.

The Minister may, by legislative instrument, determine circumstances for the purposes of paragraph (1)(f).

The Secretary may determine that interest charge is not payable, or is not payable in respect of a particular period, by a person on the outstanding amount of a debt.

The Secretary may make a determination under this section in circumstances that include (but are not limited to) the Secretary being satisfied that the person has a reasonable excuse for:

failing to enter into an arrangement under section 91 to pay the outstanding amount of the debt; or

having entered an arrangement, failing to make a payment in accordance with that arrangement.

The determination may relate to a period before, or to a period that includes a period before, the making of the determination.

The determination may be expressed to be subject to the person complying with one or more specified conditions.

If the determination is expressed to be subject to the person complying with one or more specified conditions, the Secretary must give written notice of the determination to the person as soon as practicable after the determination is made.

If:

the determination is expressed to be subject to the person complying with one or more specified conditions; and

the person contravenes a condition or conditions without reasonable excuse;

the determination ceases to have effect from and including the day on which the contravention or the earliest of the contraventions occurred.

The Secretary may cancel or vary the determination by written notice given to the person.

The Minister may, by legislative instrument, determine guidelines relating to the operation of the provisions of this Division dealing with interest charge.

If:

(a) a person (the garnishee debtor) is given a notice under section 89 in respect of a debt due by another person (the original debtor) under this Act; and

the garnishee debtor fails to comply with the notice to the extent that he or she is capable of complying with it;

then the amount of the debt outstanding (worked out under subsection (2)) is recoverable from the garnishee debtor by the Commonwealth by means of:

legal proceedings; or

garnishee notice.

The amount of the debt outstanding is the amount equal to:

as much of the amount required by the notice under section 89 to be paid by the garnishee debtor as the garnishee debtor was able to pay; or

as much of the debt due by the original debtor at the time when the notice was given as remains due from time to time;

whichever is the lesser.

If the Commonwealth recovers:

the whole or part of the debt due by the garnishee debtor under subsection (1); or

the whole or part of the debt due by the original debtor;

then:

both debts are reduced by the amount that the Commonwealth has so recovered; and

the amount specified in the notice under section 89 is to be taken to be reduced by the amount so recovered.

This section applies to an amount in spite of any law of a State or Territory (however expressed) under which the amount is inalienable.

This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

Sections 71 to 75 extend to:

acts, omissions, matters and things outside Australia, whether in a foreign country or not; and

all persons (irrespective of nationality or citizenship).

A debt owed by a person is recoverable by the Commonwealth by one or more of the following means:

deductions from instalments of family tax benefit to which the person is entitled;

setting off family assistance to which the person is entitled against the debt;

setting off against one or more child care service payments that are to be made to the person;

repayment by instalments under an arrangement entered into under section 91;

if section 92 applies to another person who is entitled to be paid family tax benefit by instalment—deductions from that other person’s instalments of family tax benefit;

if section 92A applies to another person who is entitled to family assistance—setting off (otherwise than as mentioned in paragraph (b)) the family assistance against the debt;

the application of an income tax refund owed to the person;

if section 93 applies to another person to whom an income tax refund is owed—the application of that refund;

legal proceedings;

garnishee notice.

Note: For child care service payment see subsection 3(1).

In this section:

debt means:

a debt due to the Commonwealth under section 71, 71A, 71B, 71C, 71D, 71DA, 71E, 71F, 71G, 71H, 71I, 71J, 71K, 71L, 71M, 73, 74, 76, 77, 78B or 80; or

a debt due to the Commonwealth for which a person is liable because of section 75.

This section applies to a debt if:

under section 82, the debt is recoverable by the Commonwealth by means of deductions from instalments of family tax benefit to which the person is entitled; or

(b) the debt is a debt due by the person to the Commonwealth under the Social Security Act 1991, the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Student Assistance Act 1973, the Veterans’ Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or

(c) the debt was incurred under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998.

The debt is to be deducted from instalments of family tax benefit to which the person is entitled in the following way:

the Secretary is to determine the amount by which each instalment of family tax benefit is to be reduced; and

a determination under paragraph (a) may be an amount that would reduce the payment to nil if the person has consented to the amount of the deduction being an amount that would reduce the payment to nil; and

each instalment of family tax benefit is to be reduced by the amount determined by the Secretary until the sum of those amounts, and any amounts recovered under an Act referred to in paragraph (1)(b), is equal to the debt.

The Secretary may from time to time vary the amount by which instalments of family tax benefit are to be reduced.

This section applies:

to a person if the person is entitled to an amount of family assistance; and

to a debt owed by the person if:

under section 82, the debt is recoverable by the Commonwealth by means of setting off family assistance to which the person is entitled against the debt; or

(ii) the debt is a debt due by the person to the Commonwealth under the Social Security Act 1991, the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Student Assistance Act 1973, the Veterans’ Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or

(iii) the debt was incurred under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998.

The Secretary may determine that the whole or a part of the entitlement is to be set off against the debt.

Under subsection (2), the Secretary may set off a person’s CCS or ACCS only against a debt the person incurs in relation to CCS or ACCS.

If the Secretary makes a determination under subsection (2), the amount of the entitlement and the amount of the debt are reduced accordingly.

If, under the Commissioner of Taxation may apply the whole or a part of the refund to the debt.section 82, a debt owed by a person is recoverable by the Commonwealth by means of application of an income tax refund payable to the person,

The amount of the refund and the amount of the debt are reduced accordingly.

This section applies if a debt owed by an approved provider is to be recovered by the Commonwealth by means of setting off the debt against a payment referred to in paragraph 82(1)(c) (child care service payments).

The Secretary must determine the amount by which the payment is to be reduced. The determination has effect accordingly.

A determination under subsection (2) may cover one or more payments and may make different provision for different payments.

The Secretary may vary a determination under subsection (2).

If a payment is reduced by an amount in accordance with this section, the debt is reduced by that amount.

A determination under subsection (2) is not a legislative instrument.

If, under section 82, a debt is recoverable by the Commonwealth by means of legal proceedings, the debt is recoverable by the Commonwealth in a court of competent jurisdiction.

(1) If, under debtor) by the Commonwealth by means of a garnishee notice, the Secretary may by written notice given to another person:section 82, a debt is recoverable from a person (the

by whom any money is due or accruing, or may become due, to the debtor; or

who holds or may subsequently hold money for or on account of the debtor; or

who holds or may subsequently hold money on account of some other person for payment to the debtor; or

who has authority from some other person to pay money to the debtor;

require the person to whom the notice is given to pay the Commonwealth:

an amount specified in the notice, not exceeding the amount of the debt or the amount of the money referred to in paragraph (a), (b), (c) or (d); or

such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied; or

such percentage as is specified in the notice of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied.

The time for making a payment in compliance with a notice under subsection (1) is such time as is specified in the notice, not being a time before the money concerned becomes due or is held or before the end of the period of 14 days after the notice is given.

A person must not refuse or fail to comply with a notice under subsection (1) to the extent to which the person is capable of complying with the notice.

Penalty: Imprisonment for 12 months.

If the Secretary gives a notice to a person under subsection (1), the Secretary must give a copy of the notice to the debtor.

A person who makes a payment to the Commonwealth in compliance with a notice under subsection (1) is to be taken to have made the payment under the authority of the debtor and of any other person concerned.

If:

a notice is given to a person under subsection (1) in respect of a debt; and

an amount is paid by another person in reduction or in satisfaction of the debt;

the Secretary must notify the first-mentioned person accordingly, and the amount specified in the notice is to be taken to be reduced by the amount so paid.

If, apart from this subsection, money is not due or repayable on demand to a person unless a condition is fulfilled, the money is to be taken, for the purposes of this section, to be due or repayable on demand, as the case may be, even though the condition has not been fulfilled.

This section applies to money in spite of any law of a State or Territory (however expressed) under which the amount is inalienable.

This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

The Secretary may, on behalf of the Commonwealth, enter into an arrangement with a person, other than an approved provider, who owes a debt under which the person is to pay the debt, or the outstanding amount of the debt, by instalments in accordance with the terms of the arrangement.

The Secretary may, on behalf of the Commonwealth, enter into an arrangement with an approved provider that owes a debt under which the provider is to pay the debt, or the outstanding amount of the debt, by instalments in accordance with the terms of the arrangement.

If a payment is required to be made under an arrangement entered into under subsection (1) or (1A) before the end of a particular day, the payment must be made before the end of that day.

An arrangement entered into under subsection (1) or (1A) has effect, or is taken to have had effect, on and after the day specified in the arrangement as the day on which the arrangement commences (whether that day is the day on which the arrangement is entered into or an earlier or later day).

If an arrangement entered into under subsection (1) or (1A) does not specify a day as mentioned in subsection (2), it has effect on and after the day on which it is entered into.

The Secretary may terminate or alter an arrangement entered into under subsection (1) or (1A):

at the debtor’s request; or

after giving 28 days’ notice to the debtor of the proposed termination or alteration; or

without notice, if the Secretary is satisfied that the debtor has failed to disclose material information about the debtor’s true capacity to repay the debt.

In this section:

debt means a debt recoverable by the Commonwealth under Division 2.

If:

(a) a person (the debtor):

(i) has a debt under this Act or under the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Social Security Act 1991, the Student Assistance Act 1973, the Veterans’ Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or

(ii) had incurred a debt under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998; and

(b) another person (the consenting person) is entitled to be paid family tax benefit by instalment; and

for the purpose of the recovery of the debt, the consenting person consents to the deduction of an amount from the consenting person’s instalments;

the Secretary may deduct the amount from the consenting person’s instalments of family tax benefit.

The debtor’s debt is reduced by an amount equal to the amount deducted from the consenting person’s family tax benefit.

The consenting person may revoke the consent at any time.

If:

(a) a person (the debtor):

(i) has a debt under this Act or under the Data-matching Program (Assistance and Tax) Act 1990, the Farm Household Support Act 2014, the Paid Parental Leave Act 2010, the Social Security Act 1947, the Social Security Act 1991, the Student Assistance Act 1973, the Veterans’ Entitlements Act 1986 or the Military Rehabilitation and Compensation Act 2004; or

(ii) had incurred a debt under Part 8 of the Student and Youth Assistance Act 1973 as in force before 1 July 1998; and

(b) another person (the consenting person) is entitled to an amount of family assistance (except family tax benefit to which section 92 applies); and

for the purpose of the recovery of the debt, the consenting person consents to the deduction of an amount from the consenting person’s entitlement;

the Secretary may determine that the whole or a part of the entitlement is to be set off against the debt.

Subsection (1) does not apply to an entitlement to be paid CCS or ACCS.

If the Secretary makes a determination under subsection (1), the amount of the entitlement and the amount of the debt are reduced accordingly.

The consenting person may revoke the consent at any time.

If:

(a) a person (the debtor) has a debt under this Act; and

(b) another person (the consenting person) is entitled to an income tax refund; and

for the purpose of the recovery of the debt, the consenting person consents to the application of an amount from the consenting person’s refund to the debt;

the Commissioner of Taxation may apply the whole or a part of the refund to the debt.

The amount of the refund and the amount of the debt are reduced accordingly.

The consenting person may revoke the consent at any time.

If:

a family assistance payment or family assistance payments are made to a financial institution for the credit of an account kept with the institution; and

the Secretary is satisfied that the payment or payments were intended to be paid to someone who was not the person or one of the persons in whose name or names the account was kept;

the Secretary may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:

an amount specified in the notice, being the amount, or the sum of the amounts, of the family assistance payment or family assistance payments;

the amount standing to the credit of the account when the notice is given to the institution.

If:

a family assistance payment or family assistance payments that are intended to be paid to a person are made to a financial institution for the credit of an account that was kept with the institution by the person or by the person and one or more other persons; and

the person died before the payment or payments were made;

the Secretary may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:

an amount specified in the notice, being the amount, or the sum of the amounts, of the family assistance payment or family assistance payments;

the amount standing to the credit of the account when the notice is received by the institution.

As soon as possible after issuing a notice under subsection (2), the Secretary must inform the deceased estate in writing of:

the amount sought to be recovered from the deceased person’s account; and

the reasons for the recovery action.

A financial institution must comply with a notice given to it under subsection (1) or (2).

Penalty: 300 penalty units.

It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (1) or (2) if the financial institution proves that it was incapable of complying with the notice.

If a notice is given to a financial institution under subsection (1) (payment made to wrong account) or under subsection (2) (death of person in whose name the account was kept) in respect of a family assistance payment or family assistance payments, any amount recovered by the Commonwealth from the institution in respect of the debt reduces any debt owed to the Commonwealth by any other person in respect of the family assistance payment or family assistance payments.

In this section:

family assistance payment means:

a payment of family tax benefit, stillborn baby payment, family tax benefit advance, CCS or ACCS; or

a payment of single income family supplement; or

a payment under section 67EB (fee reduction amount); or

a payment under section 205A or 205C (business continuity payments); or

a payment of one-off payment to families; or

a payment of economic security strategy payment to families; or

a payment of back to school bonus or single income family bonus; or

a payment of clean energy advance; or

a payment of ETR payment; or

a payment of 2020 economic support payment; or

a payment of additional economic support payment 2020; or

a payment of additional economic support payment 2021.

For the purposes of this Part, legal proceedings, or any action under a provision of this Part, for the recovery of a debt may be commenced or taken at any time.

In this Division:

debt means a debt recoverable by the Commonwealth under Division 2.

This section applies if:

an individual incurs a debt under subsection 71B(1) or 71C(1) in relation to an amount of CCS; and

the debt is incurred because the individual does not meet the CCS reconciliation conditions for an income year by the first deadline for the income year.

The Secretary need not pursue recovery of the debt before the second deadline for the income year.

Note: It is possible for the individual to become entitled again to the amount of the CCS by meeting the CCS reconciliation conditions for the income year.

The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.

Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.

The Secretary may decide to write off a debt under subsection (1) if:

the debt is irrecoverable at law; or

the debtor has no capacity to repay the debt; or

the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

it is not cost effective for the Commonwealth to take action to recover the debt.

For the purposes of paragraph (2)(a), a debt is taken to be irrecoverable at law if, and only if:

there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

For the purposes of paragraph (2)(b), if a debt is recoverable by means of:

deductions under section 84; or

(aa) deductions under Social Security Act 1991; orsection 1231 of the

setting off under section 84A family assistance; or

application of an income tax refund under section 87; or

setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments);

the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

Secretary may write off subsection 28(2) or (6) debt if claimant and partner separate

The Secretary may, under subsection (1), decide to write off a debt arising because of subsection 28(2) or (6) (which deal with when income tax returns have not been lodged) if the following conditions are met:

(a) the claimant and the partner mentioned in subparagraph 28(1)(b)(iii) (the ex-partner) ceased to be members of the same couple after the end of the income year after the cancellation income year mentioned in subsection 28(1);

(b) if the claimant was required to lodge an income tax return for the cancellation income year—an assessment is or has been made under the Income Tax Assessment Act 1936 of the claimant’s taxable income for the cancellation income year;

in any case—the ex-partner was required to lodge an income tax return for the cancellation income year but still had not done so by the time when the claimant and the ex-partner ceased to be members of the same couple.

Debt arising because of CCS reconciliation conditions not being met if claimant and partner separate

(4B) The Secretary may, under subsection (1), decide to write off a debt arising because of subsection 105E(2) (review if CCS reconciliation conditions not met) in relation to an income year (the relevant income year) if:

the debtor, and an individual who was a TFN determination person for the purposes of a determination under Division 3 of Part 3A for the claimant in relation to sessions of care provided in CCS fortnights starting in the relevant income year, ceased to be members of the same couple after the end of the income year after the relevant income year; and

if the debtor was required to lodge an income tax return for the relevant income year—the Commissioner of Taxation has made an assessment of the taxable income for the relevant income year of the debtor; and

the other individual was required to lodge an income tax return for the relevant income year but had not done so at the time the debtor and the other individual ceased to be members of the same couple.

When decision under subsection (1) takes effect

A decision made under subsection (1) takes effect:

if no day is specified in the decision—on the day on which the decision is made; or

if a day is specified in the decision—on the day so specified (whether that day is before, after or on the day on which the decision is made).

Debt that has been written off may be recovered

Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.

On behalf of the Commonwealth, the Secretary may waive the Commonwealth’s right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 97, 98, 99, 100, 101 or 102.

A waiver takes effect:

on the day specified in the waiver (whether that day is before, after or on the day on which the decision to waive is made); or

if the waiver does not specify when it takes effect—on the day on which the decision to waive is made.

(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.

The Secretary must waive the administrative error proportion of a debt if:

the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and

the person would suffer severe financial hardship if it were not waived.

The Secretary must waive the administrative error proportion of a debt if:

(a) the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and

the debt is raised after the end of:

the debtor’s next income year after the one in which the eligibility period or event occurs; or

the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;

whichever ends last; and

the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.

For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.

If:

a debtor has been convicted of an offence that gave rise to a proportion of a debt; and

the court indicated in sentencing the debtor that it imposed a longer custodial sentence on the debtor because he or she was unable or unwilling to pay the debt;

the Secretary must waive the right to recover the proportion of the debt that arose in connection with the offence.

For the purposes of this section, a proportion of a debt may be 100% of the debt.

(1) The Secretary must waive the right to recover a debt if the debt is, or is likely to be, less than the amount referred to in Social Security Act 1991.section 1237AAA of the

Note 1: The amount referred to in Social Security Act 1991 is indexed on each 1 July (see sections 1191 to 1194 of that Act). Immediately before 1 July 2026, the amount was $250.section 1237AAA of the

Note 2: If the Secretary suspects that there may have been fraud or serious non-compliance in relation to a debt waived under this section, the waiver does not prevent the Secretary from taking further appropriate action against the debtor or any other person.

Subsection (1) does not apply if the debt could be recovered by setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments).

Settlement of civil action

If the Commonwealth has agreed to settle a civil action against a debtor for recovery of a debt for less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

Settlement of proceedings before the ART

If the Secretary has agreed to settle proceedings before the ART relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

Waiver where at least 80% of debt recovered and debtor cannot pay more

If:

the Commonwealth has recovered at least 80% of the original value of a debt from a debtor; and

the Commonwealth and the debtor agree that the recovery is in full satisfaction for the whole of the debt; and

the debtor cannot repay a greater proportion of the debt;

the Secretary must waive the remaining 20% or less of the value of the original debt.

Agreement for part-payment in satisfaction of outstanding debt

(4) If the Secretary and a debtor agree that the debtor’s debt will be fully satisfied if the debtor pays the Commonwealth an agreed amount less than the amount of the debt outstanding at the time of the agreement (the unpaid amount), the Secretary must waive the right to recover the difference between the unpaid amount and the agreed amount.

Limits on agreement to accept part-payment in satisfaction of outstanding debt

The Secretary must not make an agreement described in subsection (4) unless the Secretary is satisfied that the agreed amount is at least the present value of the unpaid amount if it is repaid in instalments of amounts, and at times, determined by the Secretary.

Formula for working out present value of unpaid amount

(6) For the purposes of subsection (5), the present value of the unpaid amount is the amount worked out in accordance with the following formula:

where:

annual repayment is the amount of the debt that the Secretary believes would be recovered under Division 2 in a year if subsection (4) did not apply in relation to the debt.

interest is the annual rate of interest specified by the Minister by legislative instrument.

rp (repayment period) is the number of years needed to repay the unpaid amount if repayments equal to the annual repayment were made each year.

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

one of the following subparagraphs applies:

the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation, or failing or omitting to comply with a provision of the family assistance law;

the debt resulted wholly or partly from the debtor knowingly making a false statement or a false representation, or failing or omitting to comply with a provision of the family assistance law, but that act, failure or omission was justified in the circumstances;

the debt resulted wholly or partly from another person knowingly making a false statement or a false representation, or failing or omitting to comply with a provision of the family assistance law, but the debtor did not know about that act, failure or omission;

the debt resulted wholly or partly from another person knowingly making a false statement or a false representation, or failing or omitting to comply with a provision of the family assistance law, and the debtor knew about that act, failure or omission but it was justified in the circumstances for the debtor not to correct that act, failure or omission; and

there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

it is more appropriate to waive than to write off the debt or part of the debt.

The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth’s right to recover debts, or parts of debts, arising under or as a result of this Act that are included in a class of debts specified by the Minister by legislative instrument.

An instrument made by the Minister under subsection (1):

may specify conditions to be met before the Secretary exercises the power to waive debts, or parts of debts, in the specified class; and

may specify limits on the amounts to be waived in relation to debts in the specified class.

The Secretary must exercise the power to waive in accordance with any conditions or limits specified in the instrument.

A decision under subsection (1) takes effect:

if no day is specified in the decision—on the day on which the decision is made; or

if a day is specified in the decision—on the day so specified (whether that day is before, after or on the day on which the decision is made).

(1) The Secretary may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:

the person has one or more debts to the Commonwealth under this Part; and

there are not arrangements satisfactory to the Secretary for the one or more debts to be wholly paid; and

the Secretary believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:

having wholly paid the one or more debts; or

there being arrangements satisfactory to the Secretary for the one or more debts to be wholly paid.

Matters to be taken into account in making order

Before making an order under this section, the Secretary must have regard to the following matters:

the capacity of the person to pay the one or more debts;

whether any action has been taken to recover any such debt, and the outcome of the recovery action;

the length of time for which any such debt has remained unpaid after the day on which it became due and payable;

such other matters as the Secretary considers appropriate.

Form of order

A departure prohibition order must be in a form approved by the Secretary.

Subdivision B—Departure from Australia of debtors prohibited

A person must not depart from Australia for a foreign country if:

a departure prohibition order in respect of the person is in force, and the person knows that the order is in force, or is reckless as to whether the order is in force; and

the person’s departure is not authorised by a departure authorisation certificate, and the person knows that the departure is not authorised by such a certificate, or is reckless as to whether the departure is authorised by such a certificate.

Penalty: Imprisonment for 12 months.

Subdivision C—Other rules for departure prohibition orders

This section applies if the Secretary makes a departure prohibition order in respect of a person.

Notifying person of order

The Secretary must notify the person that the order has been made.

The notice must be in a form approved by the Secretary and must be given as soon as practicable after making the order.

Notifying other persons of order

(4) Unless the Secretary is satisfied that the person is an Australian citizen, the Secretary must give the Secretary of the Department administered by the Minister administering the Migration Act 1958 a copy of the order, and information likely to facilitate identification of the person, for the purposes of administering that Act.

The Secretary must also give a copy of the order, and information likely to facilitate identification of the person for the purposes of this Division, to such other persons as the Secretary considers appropriate in the circumstances, being persons declared in an instrument under subsection (6).

The Secretary may, by legislative instrument, declare persons for the purposes of subsection (5).

The Secretary must give a copy of the order or information under subsection (4) or (5) as soon as practicable after making the order.

A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court.

Note: Subdivision E deals with appeals to the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) against the making of departure prohibition orders.

(2) However, a departure prohibition order in respect of a person is not in force during any period when a deportation order in respect of the person is in force under the Migration Act 1958.

The Secretary must revoke a departure prohibition order in respect of a person if:

the person no longer has any debts to the Commonwealth under this Part; or

there are arrangements satisfactory to the Secretary for the one or more debts the person has to the Commonwealth under this Part to be wholly paid; or

the Secretary is satisfied that the one or more debts the person has to the Commonwealth under this Part are completely irrecoverable.

The Secretary may revoke or vary a departure prohibition order in respect of a person if the Secretary considers it desirable to do so.

A revocation or variation, under this section, of a departure prohibition order may be:

on application by the person in a form approved by the Secretary; or

on the Secretary’s own initiative.

If the Secretary revokes or varies a departure prohibition order in respect of a person, the Secretary must give notice of the revocation or variation to:

the person; and

each person to whom a copy of the departure prohibition order was given under subsection 102C(4) or (5).

If:

a person makes an application under paragraph 102E(3)(a) for the revocation or variation of a departure prohibition order; and

the Secretary refuses to revoke or vary the order;

the Secretary must give notice of the refusal to the person.

A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.

Subdivision D—Departure authorisation certificates

(1) A person in respect of whom a departure prohibition order is in force may apply for a certificate (a departure authorisation certificate) authorising the person to depart from Australia for a foreign country.

The application must be in a form approved by the Secretary.

This section applies if a person makes an application under section 102G for a departure authorisation certificate.

The Secretary must issue the departure authorisation certificate if the Secretary is satisfied:

that, if the certificate is issued:

it is likely that the person will depart from Australia and return to Australia within a period that the Secretary considers appropriate; and

it is likely that, within a period that the Secretary considers appropriate, the Secretary will be required by subsection 102E(1) to revoke the departure prohibition order in respect of the person; and

that it is not necessary for the person to give security under section 102J for the person’s return to Australia.

If the Secretary is not satisfied as mentioned in subsection (2), the Secretary must issue the departure authorisation certificate if:

the person has given security under section 102J for the person’s return to Australia; or

if the person is unable to give such security, the Secretary is satisfied:

that the certificate should be issued on humanitarian grounds; or

that refusing to issue the certificate will be detrimental to Australia’s interests.

A person may give such security as the Secretary considers appropriate by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed by the person and the Secretary and is specified in the departure authorisation certificate.

The Secretary may substitute a later day for the day mentioned in subsection (1):

on application by the person in a form approved by the Secretary; or

on the Secretary’s own initiative.

The Secretary may refuse an application by a person to substitute a later day if:

the person refuses to increase the value of the security already given to a level that the Secretary considers appropriate; or

the person refuses to give such further security as the Secretary considers appropriate; or

the Secretary considers that it would not be appropriate to substitute the later day.

A departure authorisation certificate in respect of a person must authorise the departure of the person on or before the seventh day after a day specified in the certificate.

The day specified in the certificate must be a day that is after the day on which the certificate is issued, but not more than 7 days after that day.

If the Secretary issues a departure authorisation certificate in respect of a person, the Secretary must, as soon as practicable, give a copy of the certificate to:

the person; and

each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 102C(4) or (5).

If:

a person makes an application under section 102G for a departure authorisation certificate; and

the Secretary refuses to issue the certificate;

the Secretary must give notice of the refusal to the person.

The notice must be in a form approved by the Secretary and must be given as soon as practicable after the refusal.

If, under the Secretary substitutes a later day for a person’s return to Australia, the Secretary must give notice of that decision to:section 102J,

the person; and

each person to whom a copy of the departure prohibition order in respect of the person was given under subsection 102C(4) or (5).

If:

a person makes an application under paragraph 102J(2)(a) to substitute a later day for the person’s return to Australia; and

the Secretary refuses the application;

the Secretary must give notice of the refusal to the person.

A notice under this section must be in a form approved by the Secretary and must be given as soon as practicable after the decision concerned is made.

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

A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) against the making of the order.

This section has effect subject to Chapter III of the Constitution.

The jurisdiction of a court under section 102N must be exercised by a single Judge.

A court hearing an appeal under section 102N against the making of a departure prohibition order may, in its discretion:

make an order setting aside the order; or

dismiss the appeal.

Applications may be made to the ART for review of a decision of the Secretary under section 102E, 102H or 102J.

Despite any provision of the Secretary under this Division.Part 5, that Part does not apply in relation to any decision of

Subdivision F—Enforcement

(1) This section applies if an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, believes on reasonable grounds that:

a person is about to depart from Australia for a foreign country; and

a departure prohibition order in respect of the person is in force; and

the person’s departure is not authorised by a departure authorisation certificate.

The officer or member may:

take such steps as are reasonably necessary to prevent the person’s departure, including, but not limited to, steps to prevent the person going on board, or to remove the person from, a vessel or aircraft in which the officer or member believes on reasonable grounds the departure will take place; and

require the person to answer questions or produce documents to the officer or member for the purposes of working out whether:

a departure prohibition order in respect of the person is in force; and

if such an order in respect of the person is in force—whether the person’s departure is authorised by a departure authorisation certificate.

A person commits an offence if:

the person is subject to a requirement under paragraph (2)(b); and

the person refuses or fails to comply with the requirement.

Penalty: 30 penalty units.

Subsection (3) does not apply if the person answers the question or produces the document to the extent that the person is capable of answering the question or producing the document.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (4): see subsection 13.3(3) of the Criminal Code.

An individual is not excused from answering a question, or producing a document, under paragraph 102S(2)(b) on the ground that the answer to the question or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

However:

the answer given or document produced; and

answering the question or producing the document; and

any information, document or thing obtained as a direct or indirect consequence of the answering of the question or producing the document;

are not admissible in evidence against the individual in any criminal proceedings, other than proceedings under Criminal Code in relation to answering the question or producing the document.section 137.1 or 137.2 of the

If:

a departure prohibition order in respect of a person is in force; and

the person is about to depart from Australia for a foreign country; and

the person’s departure is authorised by a departure authorisation certificate;

an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, may request the person to give a copy of the certificate to the officer or member for inspection.

A person commits an offence of strict liability if:

(a) an officer (within the meaning of the Customs Act 1901), or a member of the Australian Federal Police, has made a request of the person under subsection (1); and

the person refuses or fails to comply with the request.

Penalty for contravention of this subsection: 5 penalty units.

Subdivision G—Interpretation

A reference in this Division to the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia.

For the purposes of this Division, Australia, when used in a geographical sense, includes the external Territories.

A child care decision is:

a determination made by the Secretary under Division 3 of Part 3A; or

a decision made on review under Part 5 or the ART Act of:

a determination mentioned in paragraph (a); or

a decision that is a child care decision under a previous application of this paragraph.

(1) An individual (the claimant) meets the CCS reconciliation conditions for an income year (the relevant income year) if subsection (2), (3) or (4) applies in relation to each of the following persons:

the claimant;

each person who was a TFN determination person for the purposes of a determination under Division 3 of Part 3A for the claimant in relation to sessions of care provided in CCS fortnights starting in the relevant income year.

Income tax assessment made

This subsection applies to a person if the Commissioner of Taxation has made an assessment of the taxable income of the person for the relevant income year.

No requirement to lodge income tax return

This subsection applies to a person if:

the relevant income year has ended; and

the person is not required to lodge an income tax return in respect of the income year; and

either:

the claimant has notified the Secretary of the amount of the claimant’s adjusted taxable income for the relevant income year; or

the Secretary is satisfied that the claimant’s adjusted taxable income for the relevant income year can be worked out without such notification.

Former partner has not lodged income tax return

This subsection applies to a person who was, but is no longer, a partner of the claimant if:

(a) the person was a TFN determination person for the purposes of a determination under relevant sessions of care) provided in CCS fortnights starting in the relevant income year; andDivision 3 of Part 3A for the claimant in relation to sessions of care (the

the relevant income year has ended; and

the person is required to lodge an income tax return in respect of the relevant income year, but has not done so by the first deadline for the relevant income year; and

the Secretary is satisfied that it is reasonable in all the circumstances to estimate the claimant’s adjusted taxable income for the relevant income year; and

the Secretary is otherwise satisfied that it is appropriate for this subsection to apply in all the circumstances.

Note: For subparagraph (3)(c)(ii) and paragraph (4)(d), the claimant’s adjusted taxable income for the relevant year is worked out taking into account the adjusted taxable income of any TFN determination person who has been the claimant’s partner during the relevant income year (see clauses 3AA and 3A of Schedule 3 to the Family Assistance Act).

(1) The first deadline for an income year (the relevant income year) is:

the end of the first income year after the relevant income year; or

if the Secretary allows the individual a longer period under subsection (2)—the end of the longer period.

The Secretary may allow an individual a longer period if the Secretary is satisfied that special circumstances prevented the individual meeting the CCS reconciliation conditions for the relevant income year before the end of the first income year after the relevant income year.

The end of the longer period must not be later than the end of the second income year after the relevant income year.

First deadline for 2018-19 income year

(4) Despite paragraph (1)(a), the first deadline for the 2018-19 income year is 31 March 2021.

Subsection (4) does not prevent the Secretary from allowing an individual a longer period in accordance with this section.

(1) The second deadline for an income year (the relevant income year) is:

the end of the second income year after the relevant income year; or

if the Secretary allows the individual a longer period under subsection (2)—the end of the longer period.

The Secretary may allow an individual a longer period if the Secretary is satisfied that special circumstances prevented the individual meeting the CCS reconciliation conditions for the relevant income year before the end of the second income year after the relevant income year.

Under the Secretary may review any decision of an officer under the family assistance law except:section 105,

a decision under section 67EB to pay an amount; or

a decision to give a person a notice under section 199E (notice about effect of non-compliance by provider on eligibility for CCS or ACCS); or

a decision under section 205A (business continuity payments—reports not given); or

a decision under section 85GA of the Family Assistance Act (funding agreements) in relation to an agreement.

If:

(a) a decision (the original decision) is a decision that, under section 104, the Secretary may review under this section; and

the Secretary is satisfied that there is sufficient reason to review the decision;

the Secretary may review the decision.

Secretary may review decision even if application has been made to the ART

The Secretary may review the original decision even if an application has been made to the ART for review in relation to the decision.

Secretary must not review decision if review under section 109A occurring

The Secretary must not review the original decision under this section while any review of the decision is taking place under section 109A.

Secretary may make decisions in respect of an original decision

(4) The Secretary may decide (the review decision) to:

affirm the original decision; or

vary the original decision; or

set the original decision aside and substitute a new decision.

If:

the review involves (wholly or partly) a review of an original decision that is a care percentage decision; and

(b) a consideration of an objection to a decision carried out under Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) the consideration of the determination to which the care percentage decision relates;Part VII of the

the Secretary must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

Secretary may deem certain events to have occurred

If:

the Secretary makes a review decision to set the original decision aside under subsection (4); and

the Secretary is satisfied that an event that did not occur would have occurred if the original decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.

(1) This section applies to a decision of the Secretary to make or vary a first individual) is entitled to be paid family tax benefit at a particular rate in respect of a period (the same-rate benefit period) that consists of, or is included in, a particular income year (the relevant income year).section 16 or 17 determination if, as a result of the decision, an individual (the

If:

in making or varying the determination, the Secretary disregarded one or more of the following provisions:

paragraph (ca) of step 1 of the method statement in clause 3 of Schedule 1 to the Family Assistance Act;

paragraph (d) of step 1 of the method statement in clause 25 of Schedule 1 to the Family Assistance Act;

paragraph 29(1)(b) of Schedule 1 to the Family Assistance Act;

paragraph (b) of step 1 of the method statement in subclause 29(2) of Schedule 1 to the Family Assistance Act;

paragraph 29A(2)(b) of Schedule 1 to the Family Assistance Act;

subclause 31A(1) of Schedule 1 to the Family Assistance Act;

subclause 38A(1) of Schedule 1 to the Family Assistance Act; and

if the Secretary would have been required to take account of one or more of the provisions mentioned in paragraph (a); andsection 32A had not been enacted,

either:

if the same-rate benefit period to which the decision relates is the only same-rate benefit period for the first individual for the relevant income year—the first individual satisfies the FTB reconciliation conditions for the same-rate benefit period; or

if the same-rate benefit period to which the decision relates is one of 2 or more same-rate benefit periods for the first individual for the relevant income year—the first individual satisfies the FTB reconciliation conditions for each of those same-rate benefit periods;

then:

for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the determination or variation; and

the Secretary must exercise the power conferred by subsection 105(1) to review the determination or variation; and

the review must take account of whichever of the provisions mentioned in paragraph (a) are relevant.

Note: To work out when the first individual has satisfied the FTB reconciliation conditions, see section 32B.

Paragraph (2)(f) does not limit the scope of the review.

This section applies if:

a determination under section 16 is in force in a quarter under which an individual is entitled to be paid family tax benefit by instalment; and

disregarding subsections (2) and (2A) of this section, an election made by the individual under subsection 58A(1) of the Family Assistance Act is in force on one or more days in that quarter.

The consequences in subsection (2A) apply:

once one of the following applies in that quarter:

the individual ceases to be entitled to be paid family tax benefit under the determination;

a revocation of the election takes effect;

the election ceases to be in force under subsection 58A(3A) of the Family Assistance Act; or

otherwise—after the end of that quarter.

The consequences are:

for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the determination; and

the Secretary must exercise the power conferred by subsection 105(1) to review the determination; and

the review must be done by assuming that:

Division 2B of Part 4 of Schedule 1 to the Family Assistance Act and Division 2AA of Part 5 of that Schedule applied in relation to those days; and

the election was not in force on those days.

Note: Those Divisions deal with energy supplement (Part A) and energy supplement (Part B).

Definition

In this section:

quarter means a period of 3 months beginning on 1 July, 1 October, 1 January or 1 April.

Favourable changes affecting individuals

A decision on review under section 105 of a child care decision in relation to section 67CD as to an individual’s entitlement to be paid CCS or ACCS for a week must not take into account information if:

apart from this section, the information would have the effect that the amount of CCS or ACCS the individual is entitled to be paid for the week is increased (including from nil); and

one of the following applies:

the individual was required to notify the Secretary of the information by subsection 67FB(1);

the information is that a child for whom the individual is eligible for CCS or ACCS is an Aboriginal or Torres Strait Islander child, and the information was notified to the Secretary in a manner approved by the Secretary;

the Secretary required the individual to give the information or produce a document containing the information under Part 6 and the individual did not give the information or produce the document within the required period; and

the CCS fortnight that includes the week started more than 28 days before the earlier of the following events:

the individual notified or gave the information or produced the document;

the Secretary otherwise became aware of the information.

Despite subsection (1), the Secretary may take the information into account if the Secretary is satisfied that the individual notified or gave the information, or produced the document, as soon as practicable.

Subsection (1) does not apply if the information is the adjusted taxable income of the individual.

Favourable changes affecting providers

A decision on review under section 105 of a child care decision in relation to section 67CH as to a provider’s entitlement to be paid ACCS (child wellbeing) for a week must not take into account information if:

apart from this section, the information would have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for the week is increased (including from nil); and

either:

the provider was required to notify the Secretary of the information by section 204F; or

the Secretary required the provider to give the information or produce a document containing the information under Part 6 and the provider did not give the information or produce the document within the required period; and

the CCS fortnight that includes the week started more than 28 days before the earlier of the following events:

the provider notified or gave the information or produced the document;

the Secretary otherwise became aware of the information.

Despite subsection (4), the Secretary may take the information into account if the Secretary is satisfied that the provider notified or gave the information, or produced the document, as soon as practicable.

A decision on review under section 105 of a child care decision in relation to section 67CD as to an individual’s entitlement to be paid CCS or ACCS must not have the effect that the amount of CCS or ACCS the individual is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the decision on review is made.

Subsection (1) does not apply if:

the decision on review is a child care decision made because of or in relation to section 105E, to the extent that the review relates to:

the individual’s adjusted taxable income for the income year in which the CCS fortnight starts; or

the individual’s subsidised hours for the CCS fortnight; or

the review is conducted:

because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight starts; and

within 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.

However, if:

the decision on review is a child care decision made under subsection 105E(3); and

the individual did not meet the CCS reconciliation conditions for the income year by the second deadline for the income year;

the decision must not have the effect that the amount of CCS the individual is entitled to be paid for the income year is more than the amount (less any withholding amounts) the individual was entitled to be paid for the income year before the child care decisions for the individual for the income year were set aside under paragraph 105E(2)(c).

A decision on review under section 105 of a child care decision in relation to section 67CH as to a provider’s entitlement to be paid ACCS (child wellbeing) must not have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the decision on review is made.

(1) If an individual meets the CCS reconciliation conditions for an income year (the relevant income year) by the first deadline for the relevant income year:

for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the child care decisions (if any) in relation to subsection 67CD(2) or (8) for the individual in relation to sessions of care provided in each week in CCS fortnights starting in the relevant income year; and

the Secretary must exercise the power conferred by subsection 105(1) to review those child care decisions; and

the review must take into account:

information obtained about the adjusted taxable income of the individual by the meeting of the CCS reconciliation conditions; and

subject to section 105C, any other information available about the individual’s subsidised hours or any other matter relevant to the individual’s entitlement.

(2) If an individual does not meet the CCS reconciliation conditions for an income year (the relevant income year) by the first deadline for the relevant income year:

for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the child care decisions (if any) in relation to subsection 67CD(2) or (8) for the individual in relation to sessions of care provided in each week in CCS fortnights starting in the relevant income year; and

the Secretary must exercise the power conferred by subsection 105(1) to review those child care decisions; and

despite subsection 105(4), the Secretary must set the child care decisions aside and substitute them with determinations under subsection 67CD(8) that the individual is not entitled to be paid CCS or ACCS for the sessions of care.

(3) If an individual meets the CCS reconciliation conditions for an income year (the relevant income year) after the first deadline for the relevant income year:

for the purposes of subsection 105(1), the Secretary is taken to be satisfied that there is sufficient reason to review the child care decisions in relation to subsection 67CD(8) made for the individual in accordance with paragraph (2)(c) of this section; and

the Secretary must exercise the power conferred by subsection 105(1) to review those child care decisions; and

the review must take into account:

information obtained about the adjusted taxable income of the individual by the meeting of the CCS reconciliation conditions; and

subject to sections 105C and 105D, any other information available about the individual’s subsidised hours or any other matter relevant to the individual’s entitlement.

Member of a couple for part of a year

Subsections (5) and (6) apply to the review, under this section, by the Secretary of a child care decision that relates to an individual who is a member of a couple on one or more, but not all, of the first Mondays in CCS fortnights that start in an income year.

The Secretary must apply Part 1 of Schedule 2 to the Family Assistance Act in relation to each CCS fortnight that starts in the income year as if paragraph 3AA(2)(b) of Schedule 3 to the Family Assistance Act had not been enacted.

If the individual is a member of a couple on the first Monday in a CCS fortnight that starts in the income year, the Secretary must apply Part 1 of Schedule 2 to the Family Assistance Act in relation to the fortnight as if the individual’s adjusted taxable income for the year included the adjusted taxable income for the year for the other member of the couple.

To avoid doubt, subsections (5) and (6) have effect despite Part 1 of Schedule 2 to the Family Assistance Act.

If:

the Secretary makes a review decision under section 105 to:

vary an original decision; or

set aside an original decision and substitute a new decision; and

the review decision is not a decision to which section 106A applies (certain review decisions relating to CCS or ACCS);

the Secretary must give notice of the review decision to the person whose entitlement, or possible entitlement, to family assistance, one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021 is affected by the decision.

A notice must state the effect of the review decision and that the applicant, or person whose entitlement or possible entitlement is affected by the decision, may apply for review of the review decision involved in the manner set out in this Part.

A contravention of this section in relation to a review decision does not affect the validity of the review decision.

If the Secretary makes a review decision under section 105 to vary or substitute a child care decision in relation to section 67CC that an individual is or is not eligible for CCS for a child by fee reduction, the Secretary:

(a) must give written notice of the review decision to the individual (the affected person); and

may give written notice of the review decision to the provider of any approved child care service at which the child has been enrolled since the determination under section 67CC first took effect.

If the Secretary makes a review decision under section 105 to vary or substitute a child care decision in relation to section 67CD (entitlement to be paid CCS or ACCS) for an individual in relation to sessions of care, or to affirm a child care decision in relation to section 67CD for an individual in relation to sessions of care when reviewing the child care decision because of section 105E, the Secretary:

(a) must give written notice of the review decision to the individual (the affected person); and

if the review decision is a fee reduction decision—must give written notice of the decision and the fee reduction amount for the decision to the provider of the approved child care service that provided the sessions of care; and

if the review decision is not a fee reduction decision—may give written notice of the decision to the provider of the approved child care service that provided the sessions of care.

If the review decision is a fee reduction decision, and the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2), a notice under subsection (2) of this section must include a statement to that effect.

(4) If the Secretary makes a review decision under affected person).section 105 to vary or substitute a child care decision in relation to section 67CF (entitlement to be paid CCS or ACCS in substitution for a person who has died), the Secretary must give written notice of the review decision to the individual for whom the determination under section 67CF was made (the

(5) If the Secretary makes a review decision under affected person).section 105 to vary or substitute a child care decision in relation to section 67CH (entitlement of provider to be paid ACCS (child wellbeing)), the Secretary must give written notice of the review decision to the provider for whom the determination under section 67CH was made (the

(6) If the Secretary makes a review decision under affected person).section 105 to vary or substitute a decision made under Part 8 or 8A in relation to a provider (or a decision made on review of such a decision), the Secretary must give written notice of the review decision to the provider (the

A notice under this section to an affected person must state the effect of the review decision and inform the affected person that the affected person may apply for review of the review decision in the manner set out in this Part.

A notice under this section may be given to a provider by making the notice available to the provider using an electronic interface.

A contravention of this section in relation to a review decision does not affect the validity of the review decision.

If the Secretary makes a review decision under section 105 to vary or substitute a decision after a person has applied to the ART for a review in relation to the decision, the Secretary must give written notice of the review decision to the ART Principal Registrar.

A contravention of this section in relation to a review decision does not affect the validity of the review decision.

Subject to subsection (1AA), if:

(a) the Secretary reviews, under original decision) relating to the payment to a person of family tax benefit by instalment; andsection 105 (including because of the operation of section 105A), a decision (the

(b) the Secretary decides (the review decision) to vary the original decision or set aside the original decision and substitute a new decision; and

the review decision will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment; and

the review decision is made more than 52 weeks after the person concerned was given notice of the original decision;

the date of effect of the review decision is the first day of the period to which the original decision relates.

(1AA) If:

paragraphs (1)(a), (b), (c) and (d) apply; and

(b) the first day of the period to which the original decision relates is earlier than the first day (the cut-off day) of the income year before the income year in which the review decision was made;

then, despite subsection (1), the person cannot be paid any entitlement created or increased as mentioned in paragraph (1)(c) (including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.

Subsection (1AA) does not apply if the review was undertaken under section 105 because of the operation of section 105A.

If:

the Secretary makes a review decision under section 105 to vary, or set aside and substitute a new decision for, a child care decision in relation to section 67CC (eligibility for CCS) for an individual; and

the review decision has the effect that the individual becomes eligible for CCS for a child, or eligible for additional days;

the date of effect of the review decision cannot be earlier than the first day of the income year before the income year in which the review decision was made.

Subdivision B—Review initiated by the applicant

Decisions that may and may not be reviewed under section 109A

A decision of any officer under the family assistance law must be reviewed on application under section 109A unless an exception set out in subsection (2), (5) or (6) applies to the decision.

The exceptions to the rule in subsection (1) are:

a decision made by:

the Secretary personally; or

another agency head himself or herself in the exercise of a delegated power; or

the Chief Executive Centrelink in the exercise of a delegated power; or

the Chief Executive Medicare in the exercise of a delegated power; or

a decision under section 67EB to pay an amount; or

a decision to give a person a notice under section 199E (notice about effect of non-compliance by provider on eligibility for CCS or ACCS); or

a decision under section 205A (business continuity payments—reports not given); or

except as mentioned in subsection (3) or (4), a determination about a person’s eligibility for, or entitlement to, family assistance other than CCS or ACCS if that determination:

is neither a determination made under the Secretary is not satisfied that an estimate of adjusted taxable income is reasonable nor a determination varied under section 28A; andsection 19 because

is wholly or partly based on an estimate of the amount of adjusted taxable income, or maintenance income, in a particular income year, to the extent that the determination is so based; or

a decision under section 199B to publicise information; or

a decision under section 85GA of the Family Assistance Act (funding agreements) in relation to an agreement.

a decision under an instrument (including regulations) made under this Act or the Family Assistance Act.

Paragraph (2)(h) does not apply in relation to a decision under an instrument if the instrument provides that the decision is reviewable for the purposes of this section.

(3) A determination about a person’s (the applicant’s) eligibility for, or entitlement to, family assistance other than CCS, to the extent the determination is based on an estimate of adjusted taxable income for an income year (the relevant income year), is not to be reviewed under section 109A unless the applicant applies for the review after the end of the relevant income year and one of the following paragraphs applies:

the Commissioner of Taxation has, on the basis of income tax returns lodged before the end of the income year immediately after the relevant income year, made an assessment of the taxable income for the relevant income year of all persons whose taxable income was relevant in making the determination;

there is no person whose taxable income was relevant in making the determination who was required to lodge an income tax return for the relevant income year.

(4) A determination about a person’s (the applicant’s) eligibility for, or entitlement to, family tax benefit to the extent that the determination was based on an estimate of the amount of maintenance income in a particular income year, may be reviewed under section 109A only if the applicant seeks that review after the end of that year.

A child care decision about an individual’s entitlement to be paid CCS for a week, to the extent the child care decision is based on:

(a) the individual’s adjusted taxable income for the income year (the relevant income year) in which the CCS fortnight that includes the week starts; or

the individual’s subsidised hours for the CCS fortnight that includes the week;

is not to be reviewed under section 109A unless the individual has met the CCS reconciliation conditions for the relevant income year.

A child care decision made because of subsection 105E(2) is not to be reviewed under section 109A unless the individual has met the CCS reconciliation conditions for the relevant income year.

(1) A person affected by a decision (the original decision):

that is not a care percentage decision; and

that is not a decision under Part 8 (approval of providers of child care services); and

that, under section 108, must be reviewed under this section;

may apply to the Secretary for review of the original decision.

(1A) A person affected by a decision (the original decision):

that is a care percentage decision; and

that, under section 108, must be reviewed under this section;

may apply to the Secretary, or the Child Support Registrar, for review of the original decision.

(1B) If a decision (the original decision):

is made under Part 8 (approval of providers of child care services) in relation to a provider; and

under section 108, must be reviewed under this section;

the provider may apply to the Secretary for review of the original decision.

If the person makes an application under subsection (1), (1A) or (1B), the Secretary must either:

(a) review the original decision and decide (the review decision) to:

affirm it; or

vary it; or

set it aside and substitute a new decision; or

arrange for an authorised review officer (see section 109C) to do so.

If:

the review involves (wholly or partly) a review of an original decision that is a care percentage decision; and

(b) a consideration of an objection to a decision carried out under Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) the consideration of the determination to which the care percentage decision relates;Part VII of the

the Secretary must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

If:

(a) the person who reviews the decision (the decision reviewer) makes a review decision to set aside an original decision; and

the decision reviewer is satisfied that an event that did not occur would have occurred if the original decision had not been made;

the decision reviewer may, if satisfied that it is reasonable to do so, deem the event to have occurred for the purposes of the family assistance law.

If:

a person who may apply to the Secretary or Child Support Registrar for review of a decision under subsection (1), (1A) or (1B) has not done so; and

the person applies to the ART for review of the decision (despite not being entitled to do so);

the person is taken to have applied to the Secretary or Child Support Registrar for review of the decision under that subsection on the day on which the person applied to the ART.

Decision reviewer to give notice of section 109A decision

The decision reviewer of a decision reviewed under section 109A must give notice of the review decision as set out in this section.

Notice of decisions relating to CCS or ACCS

If a review decision is a decision to affirm, vary or substitute a child care decision in relation to section 67CC that an individual is or is not eligible for CCS for a child by fee reduction, the decision reviewer:

must give written notice of the review decision to the individual; and

may give written notice of the review decision to the provider of any approved child care service at which the child has been enrolled since the determination under section 67CC first took effect.

If a review decision is a decision to affirm, vary or substitute a child care decision in relation to section 67CD (entitlement to be paid CCS or ACCS) for an individual in relation to sessions of care, the decision reviewer:

must give written notice of the review decision to the individual; and

if the review decision is a fee reduction decision—must give written notice of the decision and the fee reduction amount for the decision to the provider of the approved child care service that provided the sessions of care; and

if the review decision is not a fee reduction decision—may give written notice of the decision to the provider of the approved child care service that provided the sessions of care.

If the review decision is a fee reduction decision, and the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2), a notice under subsection (2A) of this section must include a statement to that effect.

A notice under subsection (2) or (2A) may be given to a provider by making the notice available to the provider using an electronic interface.

Notice to be given of other review decisions

If a review decision is in respect of any other original decision that may be reviewed under section 109A, other than an original decision referred to in subsection (2) or (2A), the decision reviewer must give the applicant written notice of his or her decision:

to affirm or vary the decision reviewed; or

to set it aside and substitute a new decision.

The Secretary must authorise officers to be authorised review officers for the purposes of this Division.

Time for making applications for review

Subject to this section, an application for review under section 109A of any decision (other than an excepted decision) must be made no later than:

for a decision in relation to CCS or ACCS (including a decision in relation to Part 8A)—90 days after the applicant is notified of the decision; and

otherwise—52 weeks after the applicant is notified of the decision.

Exception—Secretary may extend time limits in special circumstances

The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section 109A for review of a decision (other than an excepted decision) within the period specified for the decision in subsection (1), permit a person to make the application after the end of that period and within such further period as the Secretary determines to be appropriate.

Further exceptions

An application under section 109A for review of a decision (other than an excepted decision) to which paragraph (1)(b) applies may also be made after the 52 weeks mentioned in that paragraph if the application is for review of one or other of the following decisions:

a determination decision that a person is or is not entitled to be paid family tax benefit for a past period if the period occurs in the income year in which the application was made or in the previous income year (a determination of entitlement is made under section 17 or 19);

a determination decision that a person is or is not entitled to be paid family tax benefit by single payment/in substitution because of the death of another individual if the death occurred in the income year in which the application was made or in the previous income year (a determination of entitlement is made under section 18 or 19).

An application under section 109A for review of a decision (other than an excepted decision or a decision to which subsection (5A) relates) relating to the payment to a person of family assistance, or of one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021, may also be made after the period specified for the decision in subsection (1), if:

the application for review is made because of an assessment, by the Commissioner of Taxation, of taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (4A); or

the application for review is made:

because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (4A); and

within 90 days after the relevant person was notified by the Commissioner of the outcome of the review; or

the family assistance is family tax benefit and the application for review is made:

because of a review, by the Child Support Registrar, of a previous decision by the Registrar about the child support entitlement of any relevant person; and

within 90 days after the relevant person was notified by the Registrar of the outcome of the review.

(4A) For the purposes of paragraph (4)(a) or subparagraph (4)(b)(i), the income tax return of a person in respect of a particular income year (the base year) must be lodged before the end of:

the first income year after the base year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.

The further period under paragraph (4A)(b) must end no later than the end of the second income year after the base year.

In subsection (4), a reference to a relevant person, in relation to the person first-mentioned in that subsection, is a reference:

so far as paragraph (4)(a) or (b) is concerned—to any person (including the first-mentioned person) whose taxable income is relevant in determining the first-mentioned person’s eligibility for, or rate of, family assistance, one-off payment to families, economic security strategy payment to families, back to school bonus, single income family bonus, clean energy advance, ETR payment, 2020 economic support payment, additional economic support payment 2020 or additional economic support payment 2021; and

so far as paragraph (4)(c) is concerned—to any person (including the first-mentioned person) whose entitlement to child support is relevant in determining the first-mentioned person’s rate of family tax benefit.

An application under section 109A for review of a decision (other than an excepted decision) relating to the payment to an individual of CCS for a week may also be made after the 90 days mentioned in paragraph (1)(a) if the application for review is made:

because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week starts; and

within 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.

In this section:

excepted decision means a decision:

relating to the payment to a person of family tax benefit by instalment; or

relating to the raising of a debt under Division 2 of Part 4; or

made under Part 8 (approval of providers of child care services).

Note: Applications by providers for review of decisions made under Division 2 of Part 4 relating to CCS or ACCS or decisions made under Part 8 are subject to the time limits set out in section 109DA.

An application by a provider for review under subsection 109A(1) of a decision made under Division 2 of Part 4 relating to CCS or ACCS must be made no later than:

52 weeks after the provider is notified of the decision; or

if the provider was not notified of the decision—52 weeks after the provider becomes aware of the decision.

An application by a provider for review under subsection 109A(1B) of a decision made under Part 8 (approval of providers of child care services) must be made no later than:

14 days after the provider is notified of the decision; or

if the provider was not notified of the decision—14 days after the provider becomes aware of the decision.

Section 105C applies to a decision on review under section 109A of a child care decision in relation to section 67CD or 67CH as if the references to section 105 were references to section 109A.

Note: Section 105C limits the information that can be taken into account in the decision on review.

Section 105D applies to a decision on review under section 109A of a child care decision in relation to section 67CD or 67CH as if:

the references to section 105 were references to section 109A; and

the references to the income year in which the decision on review is made were references to the income year in which the application for review is made; and

subparagraph (2)(a)(ii) were omitted; and

paragraph (2)(c) referred to the application being made instead of the review being conducted.

Note: Section 105D limits when a decision on review can increase the amount of CCS or ACCS an individual or provider is entitled to be paid.

If:

(a) a person applies under original decision) relating to the payment to the person of family tax benefit by instalment; andsection 109A for review of a decision (the

the application is made more than 52 weeks after the person was given notice of the original decision; and

the Secretary or an authorised review officer decides, under subsection 109A(2), to vary the original decision or to set aside the original decision and substitute a new decision; and

(d) the decision of the Secretary or authorised review officer (the review decision) will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;

the date of effect of the review decision is the first day of the period to which the original decision relates.

The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under within 52 weeks, determine that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.section 109A for review of the original decision

(2AA) If:

paragraphs (1)(a), (b), (c) and (d) apply; and

(b) the first day of the period to which the original decision relates is earlier than the first day (the cut-off day) of the income year before the income year in which the application referred to in paragraph (1)(b) was made;

then, despite subsection (1), the person cannot be paid any entitlement created or increased as mentioned in paragraph (1)(d) (including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.

Subsection (2AA) does not apply in relation to a decision by the Secretary or by an authorised review officer on an application by a person under section 109A for review of the original decision if:

(a) as a result of the original decision, the person was entitled to be paid family tax benefit by instalment at a particular rate in respect of a period (the same-rate benefit period) that consists of, or is included in, a particular income year (the relevant income year); and

the original decision is not a decision made under subsection 105(4) (including because of the operation of section 105A) or 109A(2); and

either:

if the same-rate benefit period to which the original decision relates is the only same-rate benefit period for the person for the relevant income year—the person satisfies the FTB reconciliation conditions for the same-rate benefit period; or

if the same-rate benefit period to which the original decision relates is one of 2 or more same-rate benefit periods for the person for the relevant income year—the person satisfies the FTB reconciliation conditions for each of those same-rate benefit periods.

Note: To work out when the person satisfied the FTB reconciliation conditions, see section 32B.

Subsection (2AA) does not apply in relation to a decision by the Secretary or by an authorised review officer on an application under section 109A for review of the original decision if:

the application for review is made:

because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (3A); and

within 90 days after the relevant person was notified by the Commissioner of the outcome of the review; or

the application for review is made:

because of a review, by the Child Support Registrar, of a previous decision by the Registrar about the child support entitlement of any relevant person; and

within 90 days after the relevant person was notified by the Registrar of the outcome of the review.

(3A) For the purposes of subparagraph (3)(b)(i), the income tax return of a person in respect of a particular income year (the base year) must be lodged before the end of:

the first income year after the base year; or

such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.

The further period under paragraph (3A)(b) must end no later than the end of the second income year after the base year.

In subsection (3), a reference to a relevant person, in relation to the person first-mentioned in that subsection, is a reference:

so far as paragraph (3)(b) is concerned—to any person (including the first-mentioned person) whose taxable income is relevant in determining the first-mentioned person’s eligibility for, or rate of, family tax benefit; and

so far as paragraph (3)(c) is concerned—to any person (including the first-mentioned person) whose entitlement to child support is relevant in determining the first-mentioned person’s rate of family tax benefit.

Section 107A applies to a review under section 109A of a child care decision in relation to section 67CC as if:

the reference to section 105 were a reference to section 109A; and

the reference to the income year in which the review decision was made were a reference to the income year in which the application for review was made.

Note: Section 107A provides for the date of effect of a decision to vary, or set aside and substitute a new decision for, a child care decision in relation to section 67CC.

An applicant for review under the Secretary, withdraw the application at any time before the decision reviewer does any of the things in subsection 109A(2).section 109A may, in writing or in any other manner approved by

If an application is so withdrawn, it is taken never to have been made.

If:

an adverse family assistance decision is made; and

the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and

a person applies under section 109A for review of the adverse decision;

the Secretary may declare that entitlement to the family assistance to which the adverse family assistance decision relates is to continue, pending the determination of the review, as if the adverse decision had not been made.

While the declaration is in force in relation to the adverse decision, this Act (other than this Part) applies as if the adverse decision had not been made.

The declaration:

starts to have effect on the day on which it is made or on the earlier day (if any) specified in the declaration; and

stops having effect if:

the application for review of the adverse decision is withdrawn; or

the review of the adverse decision is determined by the Secretary or an authorised review officer; or

the declaration is revoked by the Secretary.

In this section:

adverse family assistance decision, in relation to a person, means any decision having the effect that:

the person ceases to be entitled to family assistance; or

the person’s entitlement to family assistance is reduced.

If the decision reviewer gives an applicant a notice under section 109B, the notice must include:

a statement to the effect that the applicant may, subject to this Part and the ART Act, apply to the ART for review of the review decision mentioned in the notice; and

a statement about the review decision that:

sets out the reasons for the decision; and

sets out the findings by the decision reviewer on material questions of fact; and

refers to the evidence or other material on which those findings were based.

A contravention of subsection (1) in relation to a review decision does not affect the validity of the decision.

If a person is dissatisfied with a decision of a decision reviewer under Subdivision B of Division 1, the person may apply to the ART for review of the decision (an “ART review”) (certain decisions are excepted).

If a decision has been reviewed by the ART, in some circumstances the ART Act allows a person to apply to refer the matter to the ART as constituted by the guidance and appeals panel for further review.

In other circumstances, application may be made for review (a “second review”) of the decision by the ART on ART review. Applications for second review are made under the ART Act.

The rules relating to reviews by the ART are mainly in the ART Act, but the operation of that Act is modified in some ways by this Division.

The ART Act allows a person to appeal to the Federal Court on a question of law from a decision of the ART.

Subdivision B—Application for ART review

(1) If the decision reviewer has affirmed, varied or set aside a decision under Subdivision B of ART review) of the decision as affirmed or varied or, if it has been set aside and another decision substituted, the decision so substituted.Division 1, application may be made to the ART for review (

If a decision has been made by:

the Secretary personally; or

another agency head himself or herself in the exercise of a delegated power; or

the Chief Executive Centrelink in the exercise of a delegated power; or

the Chief Executive Medicare in the exercise of a delegated power;

application may be made to the ART for review (also ART review) of the decision.

However, a person cannot apply for review under subsection (1) or (1A) in respect of any of the following decisions:

a decision about the form or manner in which an application or claim is to be made or a notice given;

a decision about the kind of information or documents required to be given in or to accompany an application, claim or notice;

a decision under section 109G or 113 (continuation of payment etc. pending review of adverse decision);

a decision under Division 1 of Part 6 or section 203AA or 203A (Secretary requiring or requesting information from person);

a decision under section 67FE, 67FG, 67FH or 67FI (Secretary requesting information in relation to CCS or ACCS) or subsection 204A(6) (Secretary requesting further information about a child care service stopping operations);

a decision relating to the Secretary’s power under section 137 or 141 to settle proceedings before the ART;

a child care provider decision;

a decision under section 203C (engaging expert for independent audit);

a decision under section 204D (information about number of child care places).

A child care decision about an individual’s entitlement to be paid CCS for a week, to the extent the child care decision is based on:

(a) the individual’s adjusted taxable income for the income year (the relevant income year) in which the CCS fortnight that includes the week starts; or

the individual’s subsidised hours for the CCS fortnight that includes the week;

is not to be reviewed on ART review unless the individual has met the CCS reconciliation conditions for the relevant income year.

In this section:

decision reviewer means a person who, in accordance with subsection 109A(2), reviewed a decision that was the subject of an application under section 109A.

90 day time limit for most kinds of decision

Subject to subsections (2) and (2A), an application for ART review of a decision, other than a decision covered by subsection (3A) or excepted under subsection (5), must be made no later than 90 days after the person is notified of the decision.

The ART may, if it determines that there are special circumstances that prevented the person from making an application for ART review of a decision of the kind referred to in subsection (1) within the 90 days mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the ART determines to be appropriate.

An application for ART review of a child care decision about an individual’s entitlement to be paid CCS for a week, other than a decision excepted under subsection (5), may also be made after the 90 days mentioned in subsection (1) if the application for review is made:

because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week starts; and

within 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.

Subsections (1), (2) and (2A) apply despite sections 18 and 19 of the ART Act (which deal with when applications for review may be made).

52 week time limit for certain provider debt decisions

An application by a provider for ART review in respect of a decision under Division 2 of Part 4 relating to CCS or ACCS must be made no later than:

52 weeks after the provider is notified of the decision; or

if the provider was not notified of the decision—52 weeks after the provider becomes aware of the decision.

Subsection (3A) applies despite sections 18 and 19 of the ART Act (which deal with when applications for review may be made).

No time limit for excepted decisions

Section 18 (when to apply for review) of the ART Act does not apply in relation to an application for ART review of a decision that is excepted under subsection (5).

Excepted decisions

A decision is excepted under this subsection if the decision:

relates to the payment to a person of family tax benefit by instalment; or

relates to the raising of a debt under Division 2 of Part 4 (other than a decision referred to in subsection (3A)).

Subdivision C—Other matters relating to ART review

For the purposes of ART review of a decision, a reference in the ART Act to the decision-maker for the decision is taken to be a reference to the Secretary.

For the purposes of ART review of a decision, the decision-maker for the decision is taken to have given the ART an election notice (within the meaning of the ART Act) in relation to a kind of proceeding that is a proceeding for ART review of the decision.

Subsection 32(2) (ART may stay operation or implementation) of the ART Act does not apply in relation to a proceeding for ART review.

Section 85 (ART may remit decision to decision-maker for reconsideration) of the ART Act does not apply in relation to a proceeding for ART review.

Section 268 (requesting reasons for reviewable decision from decision-maker) of the ART Act does not apply in relation to a decision for which an application for ART review may be made.

Subsection 294(1) (legal or financial assistance for applicants) of the ART Act does not apply in relation to:

a person who proposes to apply to the ART for ART review; or

a person who applies to the ART for ART review, unless the proceeding in relation to the application is a guidance and appeals panel proceeding.

Subsection 294(3) (legal or financial assistance for other parties) of the ART Act does not apply in relation to a proceeding for ART review unless the proceeding is a guidance and appeals panel proceeding.

Subsection 294(4) (legal or financial assistance for court proceedings) of the ART Act does not apply in relation to a matter that relates to a proceeding for ART review unless the proceeding is a guidance and appeals panel proceeding.

If:

an adverse family assistance decision is made; and

the adverse decision depends on the exercise of a discretion, or the holding of an opinion, by a person; and

a person makes an application for ART review of the adverse decision;

the Secretary may declare that entitlement to the family assistance is to continue, pending the determination of the review, as if the adverse decision had not been made.

While the declaration is in force in relation to the adverse decision, this Act (other than this Part) applies as if the adverse decision had not been made.

The declaration:

starts to have effect on the day it is made or on the earlier day (if any) specified in the declaration; and

stops having effect if:

the ART dismisses the application for ART review of the adverse decision; or

the ART determines the ART review of the adverse decision; or

the Secretary revokes the declaration.

In this section:

adverse family assistance decision, in relation to a person, means any decision having the effect that:

the person ceases to be entitled to family assistance; or

the person’s entitlement to family assistance is reduced.

If a declaration under section 113 is in force in relation to a decision for which an application for ART review has been made, the President of the ART must take reasonable steps to ensure that the decision is reviewed as quickly as possible.

If an officer varies or substitutes a decision after an application has been made for ART review of the decision, the application is taken to be an application for ART review of the decision as varied or substituted.

However, if the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 (decision cannot be altered outside Tribunal process) of that Act applies to the decision after the referral is made.

The ART may, in relation to an application for ART review, request the Secretary to lodge with the ART the statement and other documents referred to in section 23 (decision-maker must give ART reasons and documents—general rule) of the ART Act before the end of the period that otherwise applies.

If the ART does so, the Secretary must take reasonable steps to comply with the request.

Nothing in this section prevents the operation of subsection 28(4) of the ART Act (which allows the ART to shorten the period for giving documents).

The parties to an ART review of a care percentage decision include, in addition to the parties referred to in subsection 22(1) of the ART Act, each person who is a responsible person (within the meaning of the Child Support (Assessment) Act 1989) for the child to whom the decision relates.

If the ART reasonably believes that a person has information that is relevant to an ART review and the person is not a party to the review, the ART may, by written notice given to the person, require the person to give to the ART, within the period and in the manner specified in the notice, any such information.

Note: Section 74 of the ART Act deals with the ART’s power to summon a person to give evidence or produce documents.

A person commits an offence if:

the ART gives the person a notice under subsection (1); and

the person fails to comply with the notice.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Subsection (2) does not apply if complying with the notice might tend to incriminate the person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

If the ART reasonably believes that a person will be able to give information, or produce a document or records, relevant to an ART review, the ART may, for the purposes of the review, request the Secretary to exercise the Secretary’s powers under section 154 or 157A.

The Secretary must comply with the request as soon as practicable and no later than 7 days after the request is made.

Section 153A does not apply to the Secretary when complying with a request under subsection (1).

This section applies in relation to a proceeding for ART review if the ART is constituted for the purposes of the proceeding otherwise than by the guidance and appeals panel.

The hearing of the proceeding must be in private.

The ART may give directions, in writing or otherwise, as to the persons who may be present at the hearing of the proceeding.

In giving directions, the ART must have regard to the wishes of the parties and the need to protect their privacy.

Section 69 (hearings to be in public unless practice directions or ART order requires otherwise) of the ART Act does not apply in relation to the hearing of the proceeding.

Subject to subsection (4) and the outcome of any application under section 294 of the ART Act, a party to an ART review must bear any expenses incurred by the party in connection with the review.

The ART may determine that the Commonwealth is to pay the reasonable costs that are:

incurred by a party for travel and accommodation in connection with an ART review; and

specified in the determination.

If the ART arranges for the provision of a medical service in relation to a party to an ART review, the ART may determine that the Commonwealth is to pay the costs of the provision of the service.

If the ART makes a determination under subsection (2) or (3), the costs to which the determination relates are payable by the Commonwealth.

If:

the ART has reviewed:

(i) a decision (a child support decision) on application referred to in section 89 of the Child Support (Registration and Collection) Act 1988; or

a decision on application referred to in section 131D of the ART Act in relation to a child support decision; and

that review involved (wholly or partly) a review of a determination to which a care percentage decision relates;

then, despite section 54 of the ART Act, the ART must not, on ART review of the care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).

If, on ART review of a decision, the ART sets the decision aside under section 105 of the ART Act and substitutes for it a decision that a person is entitled to have a payment made under this Act, the ART must:

assess the amount of the payment; or

ask the Secretary to assess the amount of the payment.

(2) Despite subsection (1), the ART must ask the Secretary to assess, in accordance with any directions or recommendations of the ART, the amount of CCS or ACCS an individual or provider is entitled to be paid, if:

on ART review, the ART:

reviews a child care decision in relation to section 67CD, 67CF or 67CH as to an amount of CCS or ACCS that the individual or provider is entitled to be paid; and

considers that the individual or provider is entitled to be paid a different amount of CCS or ACCS; or

on ART review, the ART:

reviews a child care decision in relation to subsection 67CD(6), 67CF(3) or 67CH(3) that the individual or provider is not entitled to be paid CCS or ACCS; and

considers that the individual or provider is entitled to be paid an amount of CCS or ACCS.

(3) For the purposes of this Part and the definition of child care decision in subsection 3(1), the Secretary’s assessment under subsection (2) forms part of the ART’s decision on the review.

If:

(a) a person makes an application for ART review of a decision (the original decision) relating to the payment to a person of family tax benefit by instalment; and

the application is made more than 90 days after the person was given notice of the original decision; and

the ART makes a decision under section 105 of the ART Act to vary or substitute the original decision; and

the decision of the ART will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;

then, despite subsections 108(4) and (5) of the ART Act, the date of effect of the decision of the ART is the first day of the period to which the original decision relates.

The ART may, if satisfied that there are special circumstances that prevented the applicant from making an application within 90 days, determine that subsection (1) applies as if the reference to 90 days were a reference to such longer period as the ART determines to be appropriate.

If:

paragraphs (1)(a), (b), (c) and (d) apply; and

(b) the first day of the period to which the original decision relates is earlier than the first day (the cut-off day) of the income year before the income year in which the application referred to in paragraph (1)(b) was made;

then, despite subsection (1), the person cannot be paid any entitlement created or increased as mentioned in paragraph (1)(d) (including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.

If:

the ART makes a decision on ART review to vary, or set aside and substitute a new decision for, a child care decision in relation to section 67CC (eligibility for CCS) for an individual; and

the ART’s decision has the effect that the individual becomes eligible for CCS for a child, or eligible for additional days;

the date of effect of the ART’s decision cannot be earlier than the first day of the income year before the income year in which the application for review was made.

If:

on ART review of a decision, the ART sets the decision aside under section 105 of the ART Act; and

the Secretary or the ART, as the case may be, is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary or the ART may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of the family assistance law.

This section applies to a decision on ART review of a child care decision in relation to section 67CD (entitlement to be paid CCS or ACCS) for an individual in relation to sessions of care.

If the decision is a fee reduction decision, the Secretary must give written notice of the decision and the fee reduction amount for the decision to the provider of the approved child care service that provided the sessions of care.

If the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2), the notice under subsection (2) of this section must include a statement to that effect.

If the decision is not a fee reduction decision, the Secretary may give written notice of the decision to the provider of the approved child care service that provided the sessions of care.

A notice under this section may be given to a provider by making the notice available using an electronic interface.

The Secretary may agree, in writing, with other parties to settle proceedings before the ART if the proceedings are an ART review and they relate to the recovery of a debt.

If proceedings are settled and the Secretary gives the ART a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.

Favourable changes affecting individuals

A decision on ART review of a child care decision in relation to section 67CD as to an individual’s entitlement to be paid CCS or ACCS for a week must not take into account information if:

apart from this section, the information would have the effect that the amount of CCS or ACCS the individual is entitled to be paid for the week is increased (including from nil); and

one of the following applies:

the individual was required to notify the Secretary of the information by subsection 67FB(1);

the information is that a child for whom the individual is eligible for CCS or ACCS is an Aboriginal or Torres Strait Islander child, and the information was notified to the Secretary in a manner approved by the Secretary;

the Secretary required the individual to give the information or produce a document containing the information under Part 6 and the individual did not give the information or produce the document within the required period; and

the CCS fortnight that includes the week started more than 28 days before the earliest of the following events:

the individual notified or gave the information or produced the document;

the Secretary otherwise became aware of the information;

the ART otherwise became aware of the information.

Despite subsection (1), the decision on review may take the information into account if the Secretary is satisfied that the individual notified or gave the information, or produced the document, as soon as practicable.

Subsection (1) does not apply if the information is the adjusted taxable income of the individual.

Favourable changes affecting providers

A decision on ART review of a child care decision in relation to section 67CH as to a provider’s entitlement to be paid ACCS (child wellbeing) for a week must not take into account information if:

apart from this section, the information would have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for the week is increased (including from nil); and

either:

the provider was required to notify the Secretary of the information by section 204F; or

the Secretary required the provider to give the information or produce a document containing the information under Part 6 and the provider did not give the information or produce the document within the required period; and

the CCS fortnight that includes the week started more than 28 days before the earliest of the following events:

the provider notified or gave the information or produced the document;

the Secretary otherwise became aware of the information;

the ART otherwise became aware of the information.

Despite subsection (4), the decision on review may take the information into account if the Secretary is satisfied that the provider notified or gave the information, or produced the document, as soon as practicable.

A decision on ART review of a child care decision in relation to section 67CD as to an individual’s entitlement to be paid CCS or ACCS must not have the effect that the amount of CCS or ACCS the individual is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the application for the review is made.

Subsection (1) does not apply if:

the decision on review is a child care decision made because of or in relation to section 105E, to the extent that the review relates to the individual’s adjusted taxable income for the income year in which the CCS fortnight starts; or

the application for review is made:

because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight starts; and

within 90 days after the individual or other person was notified by the Commissioner of the outcome of the review.

A decision on ART review of a child care decision in relation to section 67CH as to a provider’s entitlement to be paid ACCS (child wellbeing) must not have the effect that the amount of ACCS (child wellbeing) the provider is entitled to be paid for a week is increased (including from nil), if the CCS fortnight that includes the week started before the income year immediately before the income year in which the application for the review is made.

Subdivision G—ART child care provider review

Decision of Secretary or authorised review officer

If:

a child care provider decision (other than a decision made under section 197H or 197J) has been reviewed under section 109A; and

the decision has been affirmed, varied or set aside and substituted by the Secretary or authorised review officer under subsection 109A(2);

the provider may apply to the ART for review (ART child care provider review) of the decision of the Secretary or authorised review officer.

For the purposes of subsection (1), the decision of the Secretary or authorised review officer is taken to be:

if the Secretary or authorised review officer affirmed a decision—that decision as affirmed; or

if the Secretary or authorised review officer varied a decision—that decision as varied; or

if the Secretary or authorised review officer set aside a decision and substituted a new decision—the new decision.

Decision made personally by agency head

If a child care provider decision (other than a decision under section 197H or 197J) is made by:

the Secretary personally; or

another agency head personally in the exercise of a delegated power; or

the Chief Executive Centrelink in the exercise of a delegated power; or

the Chief Executive Medicare in the exercise of a delegated power;

the provider may apply to the ART for review (also an ART child care provider review) of the decision.

Referral to guidance and appeals panel

(3A) If a guidance and appeals panel application is taken to have been made because the ART’s decision on ART child care provider review is referred to the guidance and appeals panel, review of the decision to which that application relates is also an ART child care provider review.

Meaning of child care provider decision

(4) Each of the following is a child care provider decision:

a decision under Part 4 (overpayments and debt recovery) in relation to a debt of an approved provider;

a decision under Part 8 (approval of provider of child care services) in relation to a provider;

a decision under section 205C (business continuity payments—emergency or disaster).

Subsection 294(1) (legal or financial assistance for applicants) of the ART Act does not apply in relation to:

a person who proposes to apply to the ART for ART child care provider review; or

a person who applies to the ART for ART child care provider review, unless the proceeding in relation to the application is a guidance and appeals panel proceeding.

Subsection 294(3) (legal or financial assistance for other parties) of the ART Act does not apply in relation to a proceeding for ART child care provider review unless the proceeding is a guidance and appeals panel proceeding.

Subsection 294(4) (legal or financial assistance for court proceedings) of the ART Act does not apply in relation to a matter that relates to a proceeding for ART child care provider review unless the proceeding is a guidance and appeals panel proceeding.

If an officer varies or substitutes a decision after an application has been made to the ART for ART child care provider review of the decision, the application is taken to be an application for ART child care provider review of the decision as varied or substituted.

Subsection (1) does not apply if the application is a guidance and appeals panel application.

If:

(a) a person makes an application (the referral application) under section 123 of the ART Act to refer the ART’s decision on ART child care provider review to the guidance and appeals panel; and

the person is taken to have made a guidance and appeals panel application because the ART’s decision is referred to the guidance and appeals panel; and

(c) an officer varies or substitutes the decision (the reviewable decision) to which the guidance and appeals panel application relates:

after the referral application is made; and

before the ART is constituted for the purposes of the proceeding in relation to the guidance and appeals panel application;

the guidance and appeals panel application is taken to be a guidance and appeals panel application in relation to the reviewable decision as varied or substituted by the officer.

If:

on ART child care provider review of a decision, the ART sets the decision aside under section 105 of the ART Act; and

the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, treat the event as having occurred for the purposes of the family assistance law.

The Secretary may agree, in writing, with other parties to settle proceedings before the ART if the proceedings are an ART child care provider review and they relate to the recovery of a debt.

If proceedings are settled and the Secretary gives the ART a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.

This section applies if:

(a) a person lodges, under Child Support (Registration and Collection) Act 1988, an objection to a care percentage decision (within the meaning of that Act); andsection 80A of the

the consideration of the objection under that Act involves (wholly or partly) a consideration of a determination that:

(i) was made under a provision of Subdivision B of Child Support (Assessment) Act 1989; orDivision 4 of Part 5 of the

(ii) has effect, under Child Support (Assessment) Act 1989, as if it were a determination made under such a provision; andsection 54K of the

the objection was lodged more than 52 weeks after notice of the care percentage decision referred to in paragraph (a) of this subsection was given; and

(d) the decision (the review decision) on the objection has the effect of varying the determination or substituting a new determination; and

the determination as varied or substituted has effect, under sections 35T and 35U of the Family Assistance Act, as if it were a determination made under Subdivision D of Division 1 of Part 3 of that Act.

The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is:

unless paragraph (b) of this subsection applies—the date that would give full effect to the review decision; or

if the date referred to in paragraph (a) of this subsection is earlier than the first day of the income year before the income year in which the objection was lodged—that first day.

If the Secretary is satisfied that there are special circumstances that prevented the objection from being lodged within the period referred to in paragraph (1)(c), the Secretary may determine that subsection (1) applies as if the reference to 52 weeks in that paragraph were a reference to such longer period as the Secretary determines to be appropriate.

This section applies if:

(a) a person applies to the ART, under Child Support (Registration and Collection) Act 1988, for review of a decision (the original decision); andsection 89 of the

the application for review of the original decision is not a guidance and appeals panel application; and

the review of the original decision involves (wholly or partly) a review of a determination that:

(i) was made under a provision of Subdivision B of Child Support (Assessment) Act 1989; orDivision 4 of Part 5 of the

(ii) has effect, under Child Support (Assessment) Act 1989, as if it were a determination made under such a provision; andsection 54K of the

the application for review of the original decision was made more than 90 days after notice of the original decision was given; and

(d) the decision (the review decision) on the review has the effect of varying the determination or substituting a new determination; and

the determination as varied or substituted has effect, under sections 35T and 35U of the Family Assistance Act, as if it were a determination made under Subdivision D of Division 1 of Part 3 of that Act.

The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is:

unless paragraph (b) of this subsection applies—the date that would give full effect to the review decision; or

if the date referred to in paragraph (a) of this subsection is earlier than the first day of the income year before the income year in which the application for review was made—that first day.

If the Secretary is satisfied that there are special circumstances that prevented the application for review from being made within the period referred to in paragraph (1)(c), the Secretary may determine that subsection (1) applies as if the reference to 90 days in that paragraph were a reference to such longer period as the Secretary determines to be appropriate.

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

No. 81, 1999

Compilation No.   130

Compilation date: 20 March 2026

Includes amendments: Act No. 79, 2025

This compilation is in 2 volumes

Volume 1: sections 1-152D

Volume 2: sections   153 - 235

Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the A New Tax System (Family Assistance) (Administration) Act 1999 that shows the text of the law as amended and in force on 20 March 2026 (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. The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au).

Application, saving and transitional provisions

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.

Presentational changes

The Legislation Act 2003 provides for First Parliamentary Counsel to make presentational changes to a compilation. Presentational changes are applied to give a more consistent look and feel to legislation published on the Register, and enable the user to more easily navigate those documents.

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. Any modifications affecting the law are accessible on the Register.

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

Part 6—Provisions relating to information 1

Division 1—Information gathering 1

153 Application of Division 1

153A Reasonable belief needed to require information, documents or records 1

154 General power to obtain information 1

155 Power to obtain information from a person who owes a debt to the Commonwealth 3

156 Obtaining information about a person who owes a debt to the Commonwealth 3

157 Obtaining information to verify claims etc. 4

157A Obtaining records supporting certificate under section 85CB 6

158 Written notice of requirement 7

159 Offence: failure to comply with requirement 8

159A Requesting information for the purposes of a care percentage determination under the child support law 8

159B Self-incrimination 8

159C Use of information in investigations etc. 9

160 Relationship with other laws 9

Division 1A—Use of tax file numbers 11

160A Use of tax file numbers 11

Division 2—Confidentiality 13

161 Operation of Division 13

161A Definitions 14

162 Permitted obtaining of, making a record of, disclosure of or use of protected information 15

162A Obtaining of, making a record of, disclosure of or use of protected information relating to taxation information 18

162B Secretary may publish certain information relating to approved providers 19

163 Offence—unauthorised obtaining of protected information 21

164 Offence—unauthorised making a record of, disclosure of or use of protected information 21

165 Offence: soliciting disclosure of protected information 22

166 Offence: offering to supply protected information 22

167 Protection of certain documents etc. from production to court etc. 23

168 Disclosure of information by Secretary 23

169 Guidelines for exercise of Secretary’s disclosure powers 25

170 Officer’s declaration 25

Division 3—False statements etc. 26

Subdivision A—Preliminary 26

171 Application of Division 26

Subdivision B—Offences 26

172 False statement in connection with claim 26

173 False statement to deceive 27

174 False statement or document 27

175 Obtaining payment where no entitlement 28

176 Payment obtained by fraud 28

Subdivision C—Penalties 29

177 Penalty for contravention of Subdivision B 29

178 Repayment of family assistance 29

179 Penalty where person convicted of more than one offence 29

Subdivision D—Procedural matters 30

180 Joining of charges 30

181 Particulars of each offence 30

182 Trial of joined charges 30

183 Evidentiary effect of Secretary’s certificate 30

184 Enforcement of court certificate as judgment 31

Part 7—Liability of certain employers and principals for offences 32

Division 1—Interpretation 32

185 State of mind of a person 32

188 Offence 32

Division 3—Proceedings against non-corporations 33

191 State of mind of individual 33

192 Conduct of employee or agent 33

193 Exclusion of imprisonment as penalty for certain offences 33

Part 8—Approval of provider of child care services 34

Division 1—Provider approval 34

194A Application for approval 34

194B Provider approval 34

194C Provider eligibility rules 36

194D Service eligibility rules 37

194E Fit and proper person considerations 39

194EA Quality and safety considerations 40

194F Meaning of person with management or control 41

194G Meaning of approved child care service 42

194H Obligations and permissions of an approved child care service are those of the approved provider 42

Division 2—Conditions for continued approval 43

195A Conditions for continued approval—compliance with rules and law 43

195B Conditions for continued approval—child care places limit not to be exceeded 44

195C Conditions for continued approval—operating period for each approved child care service 44

195D Conditions for continued approval—working with children check 45

195E Condition for continued approval—compliance with conditions imposed by Minister 45

195F Condition for continued approval—compliance with conditions imposed by Secretary 45

195G Reassessment of continued approval 46

195H Consequences of breach of conditions for continued approval 46

Division 3—Adding or removing services 48

196A Application to add or remove service 48

196B Adding a service on application 48

196C Removing a service on application 49

Division 4—Suspension, variation and cancellation of approval 51

197A Immediate suspension after Secretary’s decision 51

197AA Suspension on request 52

197AB Suspension if approval suspended under Education and Care Services National Law 53

197B Suspension, cancellation or variation for multiple infringement notices 54

197C Cancellation on request 55

197D Cancellation if provider should not have been approved 55

197E Variation if provider should not have been approved in respect of a service 56

197F Cancellation for failure of provider to provide care for 3 continuous months 56

197G Variation for failure of service to provide care for 3 continuous months 57

197H Cancellation for ceasing to operate any approved child care service 58

197J Variation for ceasing to operate a child care service 58

197K Cancellation because no longer approved in respect of any child care service 58

197L Cancellation or variation if approval cancelled under Education and Care Services National Law 59

Division 5—Allocation of child care places 61

198A Allocation of child care places to approved child care services 61

198B Secretary to allocate child care places 61

198C Reduction of allocation of child care places by unused or unusable places 62

Division 6—Miscellaneous 64

199A Procedure before certain consequences apply 64

199B Publicising sanctions or suspensions 64

199C Notice to Secretary of matters affecting approval 66

199D Notice to provider of review rights for decisions under this Part 67

199E Notifying individuals about effect on eligibility 67

199F Certain providers not required to comply with requirements 68

199G Minister’s rules in relation to backdating of approvals etc. 69

Part 8A—Provider requirements and other matters 70

Division 1—Requirements in relation to enrolments and relevant arrangements 70

200A Enrolment notices 70

200B When a child is enrolled 72

200C Variation of complying written arrangements 73

200D Notice of change in circumstances—providers 74

Division 2—Requirements in relation to CCS and ACCS by fee reduction 76

201A Requirement to pass on fee reduction amount to individual entitled to be paid CCS or ACCS 76

201B Enforcing payment of hourly session fees 78

201BA Provider may allow discount for care provided to child of educator or cook engaged by provider 80

201BB Provider may allow discount for session of care because of prescribed event or circumstance 81

201C Charging no more than usual hourly session fee 83

201D Requirement to give individuals statements of entitlement 85

201E Statements following changes of entitlement 86

Division 3—Requirements in relation to records 88

202A Requirement to make records 88

202B Requirement to keep records 88

202C Requirement to keep records in relation to certification for ACCS (child wellbeing) 90

202D Requirement to keep Secretary informed about location of records after suspension or cancellation 91

Division 3A—Requirements relating to approved providers that are corporations 93

203AA Secretary may require cost and financial information relating to approved provider that is a corporation 93

Division 4—Requirements relating to large child care providers 95

203A Secretary may require financial information relating to large child care providers 95

203B Persons to whom a financial information notice may be given 96

203BA Requirement for large child care provider to report financial information 98

203C Audit of approved provider 99

203D Report relating to an audit 99

Division 5—Requirements in relation to information and reports 100

204A Requirements if approved provider stops operating an approved child care service 100

204B Requirement to report about children for whom care is provided 101

204C Dealing with inaccurate reports 104

204D Requirement to give information about number of child care places 105

204E Requirement to give information about care provided 106

204F Requirement to notify Secretary of certain matters 106

204G Requirements prescribed by Minister’s rules in relation to children who are members of a prescribed class 107

204H Requirements that continue after provider’s approval is suspended, cancelled or varied 108

204J Collection, use or disclosure of information for financial viability purposes 110

204K Notice to appropriate State/Territory support agency of child at risk of serious abuse or neglect 110

Division 6—Business continuity payments 113

205A Business continuity payments—reports not given 113

205B Setting off business continuity payments made under section 205A 113

205C Business continuity payments—emergency or disaster 114

Part 8B—Nominees 116

Division 1—Preliminary 116

219TA Definitions 116

Division 2—Appointment of nominees 118

219TB Appointment of payment nominee 118

219TC Appointment of correspondence nominee 118

219TD Provisions relating to appointments 118

219TE Suspension and cancellation of nominee appointments 119

Division 3—Payments to payment nominee 121

219TF Payment of amounts to payment nominee 121

Division 4—Functions and responsibilities of nominees 122

219TG Actions of correspondence nominee on behalf of principal 122

219TH Giving of notices to correspondence nominee 122

219TI Compliance by correspondence nominee 123

219TJ Notification by nominee of matters affecting ability to act as nominee 125

219TK Statement by payment nominee regarding disposal of money 126

Division 5—Other matters 128

219TL Protection of person against liability for actions of nominee 128

219TM Protection of nominee against criminal liability 128

219TN Duty of nominee to principal 128

219TO Saving of Secretary’s powers of revocation 129

219TP Saving of Secretary’s powers to give notices to principal 129

219TQ Notification of nominee where notice given to principal 129

219TR Right of nominee to attend with principal 129

Part 8C—Regulatory powers 131

Division 1—Monitoring powers 131

219UA Monitoring powers 131

219UB Meaning of listed child care information provision 133

219UC Modification of Part 2 of the Regulatory Powers Act (entry with consent) 135

219UCA Modification of Part 2 of the Regulatory Powers Act (entry without consent) 136

219UD Appointment of authorised persons 138

Division 2—Civil penalties 140

219VA Civil penalty provisions 140

219VB Requirement for person to assist with applications for civil penalty orders 140

Division 3—Infringement notices 142

219WA Infringement notices 142

Division 4—General rules about offences and civil penalty provisions 144

219XA Physical elements of offences 144

219XB Contravening an offence provision or a civil penalty provision 144

Part 9—Other matters 145

220 General administration of family assistance law 145

220A Minister requiring person to assist in criminal proceedings 145

221 Delegation 146

221A Committees 147

222 Decisions to be in writing 148

223 Secretary may arrange for use of computer programs to make decisions 149

224 Notice of decisions 149

225 Payment of deductions to Commissioner of Taxation 150

226 Setting off family assistance entitlement against tax liability 150

227 Payment of deductions to Child Support Registrar 151

228 Maximum deduction 152

228A Payment of other deductions on request 153

229 Judicial notice of certain matters 154

230 Documentary evidence 154

230A Application of family assistance law to providers that are partnerships 154

230B Application of family assistance law to providers that are unincorporated 155

231 Application of family assistance law to unincorporated bodies 156

232 Annual report 158

233 Appropriation 158

234 Agreements on administrative arrangements 159

235 Regulations 159

Endnotes 161

Endnote 1—About the endnotes 161

Endnote 2—Abbreviation key 163

Endnote 3—Legislation history 164

Endnote 4—Amendment history 192

This Division:

binds the Crown in all its capacities; and

extends to:

acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

all persons, irrespective of their nationality or citizenship.

This Division does not make the Crown liable to be prosecuted for an offence.

The Secretary can only require a person to:

give information; or

produce a document; or

produce records;

under this Division if the Secretary reasonably believes that the person will be able to give the information or produce the document or records.

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 either or both of the following matters:

whether the person, or any other person, whom the Secretary has determined to be entitled to be paid family assistance is or was eligible for the family assistance, or for family assistance of the amount determined;

whether the person or any other person to whom a payment of family assistance has been made was entitled to the payment.

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 whether a person who has claimed family assistance, but who has not had the claim determined, is eligible for family assistance.

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 whether an approved provider is eligible for ACCS (child wellbeing) or the amount of ACCS (child wellbeing) an approved provider is entitled to be paid.

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 application by the person, or any other person, for approval for the purposes of the family assistance law; or

the question of whether an approved provider should continue to be approved; or

an application by the person, or any other person, for the approval of an approved provider to be varied; or

the question of whether a child care service should continue to be approved in respect of the person, or any other person; or

the records that a person is required to keep under section 202B or 202C.

The Secretary may require a person who is required to keep records under section 202B or 202C to produce to a specified agency such of those records as are specified in the notice given to the person under section 158.

The Secretary may require a person to give information, or produce a document or records, to a specified agency if the Secretary considers that the information, document or records may be relevant to an inquiry or investigation into a matter mentioned in subsection (1), (2), (3) or (4).

The Secretary may require a person who owes a debt to the Commonwealth under or as a result of this Act:

to give to a specified agency information that is relevant to the person’s financial situation; or

to produce to a specified agency a document that is relevant to the person’s financial situation; or

if the person’s address changes—to inform a specified agency of the new address within 14 days after the change.

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 as a result of this Act; or

is relevant to the debtor’s financial situation.

The Secretary may require a person to give information about a class of persons, to a specified agency for either or both of the following purposes:

to detect cases in which amounts of family assistance have been paid to persons not entitled to them;

to verify the eligibility, entitlement to be paid and amount of the entitlement of persons who have made claims for family assistance.

The information that the Secretary may require about each person in the class of persons is all or any of the following information (but no other information):

full name and any previous name;

address;

sex;

marital status;

date of birth;

date of death;

dates of entries into and departures from Australia;

any payments received by the person from the person given the notice, within the period of 52 weeks before the giving of the notice, and the account number of the account into which any of those payments was paid;

in relation to a course of study being undertaken by the person:

the name of the educational institution that the person is attending;

the name of any educational institution previously attended by the person;

the person’s enrolment status;

the person’s student identification number;

the name of the course;

the course code;

the date on which the course started or starts;

the date on which the course ends;

the subject or unit code;

the normal full-time study workload for the course;

indicators of the person’s workload, including (but not limited to) effective full-time student units, credit points, contact hours, number of subjects undertaken and number of assignments completed;

the number of semesters required to complete the course;

the date on which the person first attended, or will first attend, the course;

the date on which the person last attended, or will last attend, the course;

whether the person has discontinued the course and, if the person has discontinued the course, the date on which it happened;

details of any unapproved absences from the course;

the results or grade obtained by the person;

in relation to any employment of the person by the person given the notice:

the date on which the person’s employment started; and

the date on which the person’s employment ended; and

the number of hours each week for which the person is employed;

in relation to any other recognised participation type (other than as an employee) that the person engages in for the person given the notice—any or all of the following:

the date on which the recognised participation type started;

the date on which the recognised participation type ended;

the number of hours each week in which the person engages in the recognised participation type;

in relation to any training of the person by the person given the notice:

the name of the entity providing the training;

if the person is undertaking a training course—the name of the training course;

the period required to complete the training;

the date on which the person’s training started;

the date on which the person’s training ended;

the number of hours each week for which the person engages in the training.

The Secretary may require information about a particular class of persons, whether or not the Secretary is able to identify any of the persons in that class as being persons:

who have been paid family assistance; or

who are entitled to family assistance; or

who have made claims for family assistance.

Within 13 weeks after information is given in response to a requirement under subsection (1), the Secretary must decide which (if any) of the information is, or is likely to be, relevant to a matter referred to in subsection (1).

If the Secretary decides, within the 13 week period, that some or all of the information given in response to the requirement is not, or is not likely to be, relevant to a matter referred to in subsection (1), the Secretary must ensure that any record of the irrelevant information is destroyed.

If the Secretary has not made a decision under subsection (4) at the end of the 13 week period, the Secretary must ensure that any record of all or any part of the information is destroyed.

The Secretary may require an approved provider that has given the Secretary a certificate under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act to produce any records kept by the provider for the purposes of section 202C in relation to the certificate.

A requirement under this Division must be made by written notice given to the person of whom the requirement is made.

The notice:

may be given personally or by post or in any other manner approved by the Secretary; and

must specify:

a description of the information, document or records to which the requirement relates; and

how the person is to give the information or produce the document or records to which the requirement relates; and

the period within which the person is to give the information or produce the document or records; and

the officer (if any) to whom the information is to be given, the document is to be produced or the records are to be produced; and

that the notice is given under this section.

Note: The notice may describe the information, documents or records by class (see subsection 33(3AB) of the Acts Interpretation Act 1901).

For the purposes of paragraph (2)(b), 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 the family assistance law, to specify a shorter period.

The notice may require the person to give the information by appearing before a specified officer to answer questions.

If the notice requires the person to appear before an officer, the notice must specify:

a time and place at which the person is to appear; and

that the person may be accompanied by a lawyer.

For the purposes of subsection (5), 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 the family assistance law, to specify an earlier time.

A person must not refuse or fail to comply with a requirement under this Division to give information or produce a document or records.

Penalty: Imprisonment for 12 months.

Subsection (1) applies only to the extent to which the person is capable of complying with the requirement.

Subsection (1) does not apply if the person has a reasonable excuse.

Strict liability applies to the element of an offence against subsection (1) that a requirement is a requirement under this Division.

The Secretary may request a person:

to give information; or

to produce a document;

to a specified agency if the Secretary considers that the information or document may be relevant to the making or revoking of a determination under Subdivision B or C of Child Support (Assessment) Act 1989.Division 4 of Part 5 of the

A person is not excused from giving information, or producing a document or records, under this Division on the ground that the information, or production of the document or records, might tend to incriminate the person or expose the person to a penalty.

However, in the case of an individual:

the information given or document or records produced; and

giving the information or producing the document or records; and

any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or records;

are not admissible in evidence against the individual in any criminal proceedings, other than:

proceedings for an offence against subsection 159(1); or

(e) proceedings for an offence against Criminal Code that relates to this Division; orsection 137.1 or 137.2 of the

(f) proceedings for an offence against Criminal Code; orDivision 145 of the

proceedings for an offence against section 177 that relates:

to this Division; and

to a contravention of section 172 or subsection 173(1), 174(1) or 176(3).

Subject to subsection 159B(2), nothing in this Division prevents information given, or a document or records produced, under this Division by a person from being used in:

an inquiry or investigation into a matter; or

criminal proceedings.

Nothing contained in a law of a State or a Territory operates to prevent a person from:

giving information; or

producing a document or records; or

giving evidence;

that the person is required to give or produce to an agency for the purposes of the family assistance law.

This Division does not require a person to give information or produce a document or records to the extent that in doing so the person would contravene a law of the Commonwealth (other than a law of a Territory).

This section applies in relation to the tax file number of an individual that is provided to the Secretary under this Act for the purposes of this Act.

Assistance to the Secretary

The Secretary may:

provide the tax file number referred to in subsection (1) to the Commissioner of Taxation; and

require the Commissioner of Taxation to provide the Secretary with information about the individual (including the number the Commissioner of Taxation considers to be the individual’s tax file number) that is requested by the Secretary.

Information provided to the Secretary under a requirement made under subsection (2) may be used only for the following purposes:

to detect cases in which amounts of family assistance under the family assistance law have been paid when they should not have been paid;

to verify, in respect of individuals who have made claims for family assistance under the family assistance law, the eligibility or entitlement of those individuals for family assistance;

to establish whether the rates at which family assistance under the family assistance law are being, or have been, paid are, or were, correct;

to assist in the recovery of a debt due to the Commonwealth under this Act.

Assistance to the Commissioner of Taxation

The Secretary may provide the tax file number referred to in subsection (1) to the Commissioner of Taxation for the following purposes:

to assist the Commissioner act under section 87 (applying tax refund to family assistance debt) in relation to a debt owed by an individual;

to assist the Commissioner act under section 93 (applying tax refund to another person’s family assistance debt) in relation to a debt owed by an individual;

to assist the payment of deductions to the Commissioner under section 225;

to assist the Commissioner set off amounts under section 226.

State and Territory laws

Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:

the Education and Care Services National Law applying as a law of a State or Territory; or

a law of a State or Territory that applies the Education and Care Services National Law as a law of that State or Territory (whether or not that law has commenced); or

regulations made under the Education and Care Services National Law; or

a law of a State or Territory that substantially corresponds to the provisions of the Education and Care Services National Law (whether or not that law has commenced); or

regulations made under a law referred to in paragraph (d).

Publishing reasons for ART decisions

Nothing in this Division prevents the ART from publishing in written or electronic form the reasons for a decision of the ART on ART review if the publication does not identify:

a party to the review concerned (other than the Secretary or the Child Support Registrar); or

a person (other than the Secretary or the Child Support Registrar) who is related to, or associated with, a party to the review concerned or is, or is alleged to be, in any other way concerned in the matter to which the review concerned relates; or

a witness in the review concerned.

Without limiting subsection (1B), a publication of reasons for a decision of the ART is taken to identify a person if it contains any particulars of:

the name, title, pseudonym or alias of the person; or

the address of any premises at which the person resides or works, or the locality in which any such premises are situated; or

the physical description or the style of dress of the person; or

any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; or

the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; or

the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

any real or personal property in which the person has an interest or with which the person is otherwise associated;

and the particulars are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the publication is disseminated, as the case requires.

No effect on operation of the Freedom of Information Act 1982

(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.

In this Division:

taxation information means information (including protected information within the meaning of subsection 355-30(1) in Schedule 1 to the Taxation Administration Act 1953 but not including a tax file number) that is held by a taxation officer.

taxation officer means the following: (a) a person who is a taxation officer Taxation Administration Act 1953;within the meaning of subsection 355-30(2) in Schedule 1 to the an entity covered by section 355-15 in that Schedule.

(a) a person who is a taxation officer Taxation Administration Act 1953;within the meaning of subsection 355-30(2) in Schedule 1 to the

an entity covered by section 355-15 in that Schedule.

A person may obtain protected information if the information is obtained for the purposes of:

the family assistance law; or

(aa) the Dental Benefits Act 2008; or

the Family Homelessness Prevention and Early Intervention Pilot; or

the Early Education Service Delivery Prices Project.

Note: For an example of obtaining protected information for the purposes of the family assistance law, see section 162A.

A person may:

make a record of protected information; or

disclose such information to any person; or

otherwise use such information;

if the record, disclosure or use made of the information by the person is made:

for the purposes of the family assistance law; or

(daa) for the purposes of the Dental Benefits Act 2008; or

for the purposes of the social security law; or

(dac) for the purposes of the Paid Parental Leave Act 2010; or

(dad) for the purposes of the Student Assistance Act 1973; or

for the purposes of the Education and Care Services National Law; or

for the purposes of:

(i) the Child Support (Assessment) Act 1989; or

(ii) the Child Support (Registration and Collection) Act 1988; or

for the purposes of a centrelink program; or

for the purposes of a medicare program; or

for the purpose of the Family Homelessness Prevention and Early Intervention Pilot; or

for the purposes of the Early Education Service Delivery Prices Project; or

for the purpose for which the information was disclosed to the person under section 167 or 168; or

with the express or implied authorisation of the person to whom the information relates.

Note: For an example of a disclosure of, making a record of or the use of protected information for the purposes of the family assistance law, see section 162A.

(2AA) A person may:

make a record of protected information; or

disclose such information to any person; or

otherwise use such information;

if the Secretary reasonably believes that the record, disclosure or use made of the information is reasonably necessary for one or more of the following purposes:

research, monitoring, evaluation or reporting of matters of relevance to a Department that is administering any part of the family assistance law;

statistical analysis of matters of relevance to a Department that is administering any part of the family assistance law;

policy development of matters of relevance to a Department that is administering any part of the family assistance law.

(2AB) A person may:

make a record of protected information; or

disclose such information to any person; or

otherwise use such information;

if the information:

has already been lawfully made available to the public; and

is in relation to:

an approved provider; or

a provider who is no longer approved or whose approval is suspended; or

a child care service of a provider mentioned in subparagraph (i) or (ii) (whether or not the provider currently operates the service).

Note: Subparagraph (e)(iii) includes services in respect of which the provider is approved or operates (see subsection 3(6)).

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.

If the protected information is in relation to:

an approved provider; or

a provider who is no longer approved or whose approval is suspended; or

a child care service of a provider mentioned in paragraph (a) or (b) (whether or not the provider currently operates the service);

a person may:

use protected information to produce information in an aggregated form that does not directly identify a particular approved provider or a particular child care service of a particular approved provider; or

disclose to any person protected information in an aggregated form that does not directly identify a particular approved provider or a particular child care service of a particular approved provider.

Note: Paragraph (c) includes services in respect of which the provider is approved or operates (see subsection 3(6)).

The Minister may, by legislative instrument, specify additional purposes relating to other programs administered by the Department for which protected information may be obtained under subsection (1), or recorded, disclosed or otherwise used under subsection (2).

An instrument under subsection (3) does not take effect until the end of the period in which it could be disallowed in either House of the Parliament.

Subsections (1), (2), (2AA), (2AB), (2A) and (2B) do not limit each other.

Disclosure to taxation officers for matching against taxation information

A disclosure of protected information by an officer is made for the purposes of the family assistance law if:

the disclosure is to a taxation officer; and

(b) the disclosure is for the purposes of a taxation officer matching that information against taxation information to facilitate the performance of functions, or the exercise of powers, under the family assistance law.

The obtaining of, making of a record of or the use of protected information by an officer is for the purposes of the family assistance law if the obtaining of, making of the record of or the use of the protected information is in connection with a disclosure referred to in subsection (1).

Authorised collection of personal information that is taxation information

(3) The collection of personal information about a person is authorised by this Act for the purposes of the Privacy Act 1988 if:

the personal information is taxation information; and

the collection is from a taxation officer; and

the collection is for the purposes of the family assistance law.

Obtaining of taxation information

If an officer obtains personal information about a person in the circumstances referred to in subsection (3), then the officer has obtained the information under the family assistance law.

Interpretation

This section does not limit section 162.

The Secretary may publish, by electronic means, information (including protected information) in relation to an approved provider, or a child care service of an approved provider, if the Secretary is satisfied on reasonable grounds that the information will, or is likely to, result in one or more of the following:

promoting transparency and accountability regarding the administration of CCS and ACCS by the provider;

promoting quality and safety of child care services of the provider;

encouraging compliance by the provider with the family assistance law.

Without limiting subsection (1A), information the Secretary may publish, by electronic means, in relation to an approved provider, includes the following:

the name of the approved provider;

the approved provider’s ABN;

the name of each child care service in respect of which the approved provider is approved;

information given to the Secretary by the approved provider under the family assistance law about the fees charged by the approved provider for child care provided by each child care service referred to in paragraph (c);

information in relation to any increases in the fees referred to in paragraph (d) that is prescribed by the Minister’s rules;

the type of each child care service in respect of which the approved provider is approved;

the number of children enrolled for care for each child care service in respect of which the approved provider is approved;

the address and contact details, including telephone number and email address, of each child care service in respect of which the approved provider is approved;

(f) if the approved provider is a large child care provider covered by paragraph 4A(1)(a) or (b)—financial information included in a report given to the Secretary by the provider under subsection 203BA(1);

any other information prescribed by the Minister’s rules.

Without limiting subsection (1A) or (1), the Secretary may publish protected information in an aggregated form covered by subsection 162(2B).

The Secretary may authorise any of the following persons or bodies to electronically publish information covered by subsection (1A), (1) or (2):

an agency or authority of the Commonwealth;

a Department of State, or an agency or authority, of a State or Territory;

a body established under a law of the Commonwealth, a State or a Territory.

To avoid doubt, the publishing of protected information under this section is for the purposes of the family assistance law.

Note: Section 162 authorises the use and disclosure of protected information for the purposes of the family assistance law. As well as having effect for the purposes of Privacy Act 1988 and other laws.section 164 (which is about offences for unauthorised use of protected information), these authorisations have effect for the purposes of the

Constitutional basis—additional operation of this section

In addition to section 85AB of the Family Assistance Act, this section also has the effect it would have if each reference to an approved provider were expressly confined to an approved provider that is a corporation to which paragraph 51(xx) of the Constitution applies.

Note: Section 85AB of the Family Assistance Act sets out the constitutional basis of the provisions of this Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers).

If:

a person intentionally obtains information; and

the person is not authorised under the family assistance law to obtain the information; and

the person knows or ought reasonably to know that the information is protected information;

the person commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Strict liability applies to the element of an offence against subsection (1) that a person not authorised to do something is not authorised under the family assistance law to do that thing.

If:

a person intentionally:

makes a record of; or

discloses to any other person; or

otherwise makes use of;

information; and

the person is not authorised or required under:

the family assistance law; or

(ii) the Social Security Act 1991; or

(iii) the Social Security (Administration) Act 1999;

to make the record, disclosure or use of the information that is made by the person; and

the person knows or ought reasonably to know that the information is protected information;

the person commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required to do that thing under:

the family assistance law; or

(b) the Social Security Act 1991; or

(c) the Social Security (Administration) Act 1999.

If:

(a) a person (the first person) solicits the disclosure of protected information from an officer or another person; and

the disclosure would be in contravention of this Division; and

the first person knows or ought reasonably to know that the information is protected information;

the first person commits an offence (whether or not any protected information is actually disclosed) punishable on conviction by imprisonment for a term not exceeding 2 years.

Strict liability applies to paragraph (1)(b).

A person must not offer to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information.

Penalty: Imprisonment for 2 years.

A person must not hold himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information.

Penalty: Imprisonment for 2 years.

Nothing in subsection (1) or (2) has the effect that an officer acting in the performance or exercise of his or her powers, duties or functions under the family assistance law commits an offence.

An officer must not, except for the purposes of the family assistance law or the Royal Commissions Act 1902, be required:

to produce any document in his or her possession; or

to disclose any matter or thing of which he or she had notice;

because of the officer’s powers, or the performance of the officer’s duties or functions, under the family assistance law, to:

a court; or

a tribunal; or

an authority; or

a person;

having power to require the production of documents or the answering of questions.

Despite sections 164 and 167, the Secretary may:

if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases—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 the family assistance law to such persons and for such purposes as the Secretary determines; or

disclose any such information:

to the Secretary of a Department of State of the Commonwealth or to the head of an authority of the Commonwealth for the purposes of that Department or authority; or

to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it.

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 section 169.

In disclosing information under paragraph (1)(b), the Secretary must act in accordance with guidelines (if any) from time to time in force under section 169.

(4) In spite of 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 subsection 3(1) to a person who is the payment nominee or correspondence nominee, within the meaning of Part 8B, of the person to whom the information relates (the principal) as if the nominee were the principal.

If:

(a) the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and

in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information;

then, despite sections 164 and 167 of this Act, the Secretary or officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.

The Minister may, by legislative instrument, make guidelines for the exercise of either or both of the following:

the Secretary’s power to give certificates for the purposes of paragraph 168(1)(a);

the Secretary’s power under paragraph 168(1)(b).

An officer must make a declaration in a form approved by the Minister or the Secretary if required to do so by the Minister or the Secretary for the purposes of the family assistance law.

This Division extends to:

acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

all persons, irrespective of their nationality, who are making, or have made, a claim for family assistance; and

all persons, irrespective of their nationality, who have become entitled to, or been paid, family assistance.

Subdivision B—Offences

A person contravenes this section if:

the person makes a statement; and

the statement is false or misleading; and

the person is reckless as to whether the statement is false or misleading; and

the statement is made in connection with, or in support of, the person’s or any other person’s claim for family assistance.

The reference in paragraph (1)(d) to a claim for family assistance includes the following:

an application referred to in paragraph 67CD(4)(a) (ACCS (grandparent));

an application referred to in paragraph 67CD(6)(a) (ACCS (transition to work));

a declaration referred to in paragraph 67CH(1)(c) (ACCS (child wellbeing) for an approved provider).

A person contravenes this section if:

the person makes a statement; and

the statement is false or misleading; and

the person is reckless as to whether the statement is false or misleading; and

the person is reckless as to whether the statement:

deceives, or might deceive, an officer or an approved provider exercising powers, or performing duties, under the family assistance law; or

affects, or might affect, an entitlement to a payment of family assistance under the family assistance law; or

affects, or might affect, the rate or amount of a payment of family assistance under the family assistance law; or

affects, or might affect, eligibility for CCS for a child.

For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to the following elements of the offence:

the element that a power, duty or function is a power, duty or function under the family assistance law;

the element that a payment is a payment under the family assistance law.

A person contravenes this subsection if:

the person makes a statement or presents a document to an officer or an approved provider exercising powers, or performing duties or functions, under the family assistance law; and

the statement or document is false in any particular; and

the person is reckless as to whether the statement or document is false in any particular.

For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to the element of the offence that a power, duty or function is a power, duty or function under the family assistance law.

A person contravenes this section if:

the person obtains a payment of family assistance; and

the person does so knowing that he or she is:

not entitled to the payment; or

only entitled to part of the payment.

Paragraph (1)(a) is taken to include a reference to a provider or an individual who obtains a fee reduction amount.

A person contravenes this subsection if:

the person obtains a payment:

of family assistance; or

under section 67EB (fee reduction amount); or

under section 205A or 205C (business continuity payments); and

the person does so:

by means of impersonation; or

by fraudulent means.

A person contravenes this subsection if:

the person makes a statement; and

the statement is false or misleading; and

the person is reckless as to whether the statement is false or misleading; and

the person obtains, as a result, a payment:

of family assistance; or

under section 67EB (fee reduction amount); or

under section 205A or 205C (business continuity payments).

Subdivision C—Penalties

A person who contravenes a provision of Subdivision B commits an offence punishable on conviction by imprisonment for a term not exceeding 12 months.

If a person is convicted of an offence against section 177, the court may:

impose a penalty in respect of the offence; and

order the person to pay the Commonwealth an amount equal to any amount obtained by way of family assistance or payments under section 67EB, 205A or 205C because of the act, failure or omission that constituted the offence.

In spite of 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).

For the purposes of this section, an amount of family assistance is taken to be paid to a person if that amount is applied against a liability of that person or another person for:

a primary tax; or

(b) a debt under this Act or the Social Security Act 1991.

Subject to subsection (2), if a person is convicted of more than one offence against section 177, the court may, if it thinks fit, impose one penalty for all the offences.

A single penalty imposed under subsection (1) must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed for each offence.

Subdivision D—Procedural matters

Charges against the same person for a number of offences against section 177 may be joined in one complaint, information or declaration if those charges:

are founded on the same facts; or

form a series of offences of the same or a similar character; or

are part of a series of offences of the same or a similar character.

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.

If charges are joined, the charges are to be tried together unless:

the court considers it just that any charge should be tried separately; and

the court makes an order to that effect.

For the purposes of paragraph 178(1)(b), a certificate signed by the Secretary is prima facie evidence of the matters specified in the certificate.

The certificate may specify:

the person to whom an amount of family assistance has been paid, or who has obtained a fee reduction amount because of an act, a failure or an omission for which the person or another person has been convicted of an offence against section 177; and

the amount paid or obtained; and

the act, failure or omission that caused the amount to be paid or obtained.

If:

a court makes an order under paragraph 178(1)(b); and

the clerk or other appropriate officer of the court gives a certificate specifying:

the amount ordered to be paid to the Commonwealth; and

the person by whom the amount is to be paid; and

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.

A reference in this Part to the state of mind of a person includes a reference to:

the knowledge, intention, opinion, belief or purpose of the person; and

the person’s reasons for the intention, opinion, belief or purpose.

A reference in this Part to an offence against this Act includes a reference to:

(a) an offence against this Act that is taken to have been committed because of Criminal Code; orsection 11.2 or 11.2A of the

an offence created by:

(i) Criminal Code; orsection 11.1, 11.4 or 11.5 of the

(ii) Crimes Act 1914;section 6 of the

that relates to this Act.

If, in proceedings for an offence against this Act in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:

the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

the employee or agent had that state of mind.

If:

conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and

the conduct is within the scope of the employee’s actual or apparent authority;

the conduct is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions, and exercised due diligence, to avoid the conduct.

Despite any other provision of this Act, if:

a person is convicted of an offence; and

the person would not have been convicted if sections 191 and 192 had not been in force;

the person is not liable to be punished by imprisonment for that offence.

Application

(1) Any of the following (a provider):

an individual;

a body corporate;

a partnership;

an entity or body prescribed by the Minister’s rules;

may apply to be approved for the purposes of the family assistance law in respect of one or more child care services that the provider operates or proposes to operate.

The application must:

be given in a form and manner approved by the Secretary; and

contain any information prescribed by the Secretary’s rules; and

contain any other information, and be accompanied by the documents, required by the Secretary.

An application is taken not to have been made:

if the application does not comply with subsection (2); or

in circumstances prescribed by the Minister’s rules.

Provider approval

The Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied that:

the provider satisfies the provider eligibility rules in section 194C; and

the provider operates, or will operate, at least one child care service that satisfies the service eligibility rules in section 194D.

Approval in respect of child care service

If the Secretary approves a provider under subsection (1), the Secretary:

must approve the provider in respect of at least one child care service that meets the requirements in subsection (3); and

may approve the provider in respect of one or more other child care services that meet the requirements in subsection (3).

For a provider to be approved in respect of a child service, the Secretary must be satisfied that the service:

is or will be operated by the provider; and

satisfies the service eligibility rules in section 194D.

Notice of approval

If the Secretary approves the provider, the Secretary must give notice to the provider stating:

the child care services in respect of which the provider is approved; and

the type and address of each service; and

the day on which the provider’s approval takes effect; and

the day on which the provider’s approval in respect of each child care service takes effect.

For the purposes of subsections (1) and (2), the day on which the approval takes effect must not be earlier than the day the application was made, unless the Secretary considers that, due to special circumstances, it is appropriate for the approval to take effect on an earlier day.

Refusal

The Secretary must refuse to approve a provider for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).

The Secretary must refuse to approve a provider in respect of a child care service if the Secretary is not satisfied of one or more of the matters referred to in subsection (3) in respect of the service.

If the Secretary refuses to approve a provider for the purposes of the family assistance law or refuses to approve the provider in respect of a child care service, the Secretary must give the applicant notice of:

the refusal; and

the reasons for the refusal.

A provider satisfies the provider eligibility rules if:

for each child care service in respect of which the provider is seeking approval—the provider holds any approvals or licences required to operate a child care service under the law of the State or Territory in which the service is situated; and

the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and

any person with management or control of the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and

any person who will be a person with management or control of the provider on the day the provider’s approval takes effect, or the day the provider’s approval in respect of a child care service takes effect, is a fit and proper person to be involved in the administration of CCS and ACCS; and

(da) the provider has arrangements in place to ensure that the provider and the following persons comply with the family assistance law:

the persons mentioned in paragraphs (c) and (d);

each person that the provider, or a person mentioned in subparagraph (i), is responsible for managing; and

for a large child care provider—the provider is financially viable and is likely to remain so; and

the Secretary is satisfied that it is appropriate for the provider to be approved having regard to the matters mentioned in section 194EA (quality and safety considerations); and

the provider satisfies any other criteria prescribed by the Minister’s rules.

Note: See person with management or control.section 194F for the definition of

A child care service satisfies the service eligibility rules if:

the service is of a type referred to in subclause 2(3) of Schedule 2 to the Family Assistance Act but is not any of the following:

informal care provided through personal arrangements;

a service primarily conducted to provide instruction in an activity (such as sport or music);

a service primarily conducted to provide a disability or early intervention service;

a service where a parent primarily provides care or is readily available and retains responsibility for the child while the service is provided (such as a play group);

a service primarily providing short-term irregular care at premises where the parent is a visitor or guest and the parent is readily available (such as a service provided by a gym);

a service that primarily provides an early educational program to children in the year that is 2 years before grade 1 of school (such as a preschool or kindergarten); and

the provider of the service holds any approvals or licences required to operate the service under the law of the State or Territory in which the service is situated; and

each person who is responsible for the day-to-day operation of the service (whether or not the person is employed by the provider of the service) is a fit and proper person to be involved in the administration of CCS and ACCS; and

each person who will be responsible for the day-to-day operation of the service (whether or not the person is employed by the provider of the service) on the day that the provider’s approval in respect of the service takes effect is a fit and proper person to be involved in the administration of CCS and ACCS; and

the provider of the service has arrangements in place to ensure that the following persons comply with the family assistance law:

the persons mentioned in paragraphs (c) and (d);

each person that a person mentioned in subparagraph (i) is responsible for managing; and

in the case where the service is covered by allocation rules—if the provider of the service were to be approved, child care places would be allocated to the service under section 198B; and

the Secretary is satisfied that it is appropriate for the provider to be approved in respect of the service having regard to the following:

if the provider is already an approved provider—any conditions imposed on the provider’s approval;

any non-compliance by the provider with a law of the Commonwealth or a State or Territory;

(iii) the provider’s record of administering payments under the family assistance law;

the provider’s record of administering of Commonwealth, State or Territory funds;

(v) the capacity for staff working at the service to use the electronic system for managing child care payments under the family assistance law;

the matters mentioned in section 194EA (quality and safety considerations);

any other matter prescribed by the Minister’s rules;

any other matter the Secretary considers relevant; and

the service satisfies any other criteria prescribed by the Minister’s rules.

The Secretary must have regard to the following matters in determining whether a person is a fit and proper person for the purpose of paragraph 194C(b), (c) or (d) or 194D(c) or (d):

any non-compliance by a relevant person with a law of the Commonwealth or a State or Territory;

any proceedings currently before a court or tribunal that involve a relevant person;

(c) any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person;

(d) subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence;

any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory;

(f) any act of a relevant person involving fraud or dishonesty;

(h) the record of administering of Commonwealth, State or Territory funds of a relevant person;

any debts to the Commonwealth incurred by a relevant person (whether or not the debt has been discharged);

(j) the record of financial management of a relevant person, including any instances of bankruptcy, insolvency or external administration involving the person;

any other matter prescribed by the Minister’s rules;

any other matter the Secretary considers relevant.

(2) For the purposes subsection (1), a relevant person is:

the person; and

another person or body in respect of which the person is or has ever been a person with management or control.

Note: See person with management or control.section 194F for the definition of

For the purpose of paragraph 194C(ea) and subparagraph 194D(f)(va), the matters are the following:

the provider’s record of demonstrating commitment to, and achievement of, high quality education and care;

any previous assessment of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service) done in accordance with the National Quality Standard (within the meaning of the Education and Care Services National Law), including any relevant rating level for the service;

any notifications of the following by the provider in respect of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service):

serious incidents that have occurred or are occurring;

occurrences of circumstances that could have resulted in the occurrence of a serious incident;

any complaints of the following received by the provider, or that the Secretary is otherwise aware of, in respect of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service);

serious incidents alleged to have occurred;

serious incidents alleged to be occurring;

for notifications or complaints referred to in paragraphs (c) and (d) in relation to a serious incident that the Secretary reasonably believes has occurred, is occurring or is likely to occur—the nature of the serious incident;

any previous or current conditions relating to quality or safety imposed on the provider’s approval under section 195E or 195F;

any previous or current conditions relating to quality or safety imposed on child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service) under section 195E or 195F;

the provider’s record of non-compliance (if any) with the family assistance law;

the provider’s record of non-compliance (if any) with laws of the Commonwealth or a State or Territory relating to quality or safety;

whether the quality and safety of child care services of the provider (whether or not the provider currently operates, or proposes to operate, the service) has improved over time and the extent of any improvement;

any other matter prescribed by the Minister’s rules;

any other matter relating to quality or safety that the Secretary considers relevant.

(2) For the purposes of this section, serious incident has the meaning prescribed by the Minister’s rules.

(1) A person is a person with management or control of a body, if the person is any of the following:

a member of the group of persons responsible for the executive decisions of the body;

a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the body;

a person who is responsible for the day-to-day operation of the body (whether or not the person is employed by the body);

a person who is responsible for the day-to-day operation of a child care service in respect of which the body is approved or is seeking to be approved (whether or not the person is employed by the body).

Without limiting paragraph (1)(a), the following persons are taken to be members of the group referred to in that paragraph:

(a) if the body is a body corporate—an officer of the body corporate (within the meaning of the Corporations Act 2001);

if the body is a partnership—a partner;

in any other case—a member of the body’s governing body.

(1) A child care service is an approved child care service if an approved provider is approved in respect of the service under this Division and that approval is in effect.

(2) If the approved provider’s approval under this Division is suspended or suspended in respect of the service, the service is not an approved child care service at any time when the suspension is in effect.

For the purposes of the family assistance law:

an obligation imposed by that law on an approved child care service is taken to be imposed on the approved provider of the service; and

a permission conferred by that law on an approved child care service is taken to be conferred on the approved provider of the service.

Continued satisfaction of eligibility rules

It is a condition for continued approval of an approved provider that:

the provider continues to satisfy the provider eligibility rules in section 194C; and

each approved child care service of the provider continues to satisfy the service eligibility rules in section 194D.

Compliance with family assistance law

It is a condition for continued approval of an approved provider that the provider not contravene the family assistance law (whether or not the contravention constitutes an offence or is a contravention of a civil penalty provision).

Note: Enforcement under this Part of this and other conditions is not limited or affected by other compliance measures in relation to these provisions (for example under the Regulatory Powers Act).

It is a condition for continued approval of an approved provider that the provider cooperate with a person exercising powers under:

section 67FH (power to require information about care provided); and

section 154 (power to obtain information generally); and

the Regulatory Powers Act in respect of a provision mentioned in subsection 219UA(1), or information mentioned in subsection 219UA(2), of this Act.

Compliance with Commonwealth, State and Territory laws

It is a condition for continued approval of an approved provider that:

the operation of each approved child care service of the provider; and

the provision of care by each service;

comply with all requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the service is situated.

It is a condition for continued approval of an approved provider that, if an approved child care service of the provider is covered by the allocation rules:

the service provides child care places; and

the service provides no more child care places than the number allocated to the service.

(1) It is a condition for continued approval of an approved provider that each child care service of the provider operates for the period determined in accordance with this subsection (the minimum period).

Subject to subsections (3) and (4), the minimum period is:

48 weeks per year; or

if the service is an outside school hours care service—7 weeks per year.

If the Minister’s rules prescribe an alternative period for a service and subsection (4) does not apply, then the minimum period for the service is the period prescribed by the Minister’s rules.

If the Secretary is satisfied that due to special circumstances affecting a service it is appropriate for the service to operate for a shorter period, the minimum period for the service is the number of weeks per year (which may be nil) that the Secretary determines, in writing, to be appropriate.

It is a condition for continued approval of an approved provider that, for each individual required under a law of a State or Territory to hold a working with children check in relation to care provided by a child care service of the provider, the provider must ensure that the individual has a current working with children check.

For the purposes of subsection (1), a working with children check is a check that permits the individual to work with children under a law of the State or Territory in which the service is situated.

It is a condition for continued approval of an approved provider that the provider complies with any conditions prescribed by the Minister’s rules in respect of the provider or an approved child care service of the provider.

It is a condition for continued approval of an approved provider that the provider complies with any conditions imposed on the provider under subsection (2).

The Secretary may impose conditions in respect of:

an approved provider; or

one or more approved child care services of a provider.

If the Secretary imposes a condition, the Secretary must give notice of the condition to the approved provider. The notice must specify the day the condition takes effect.

A notice given under subsection (3) is not a legislative instrument.

The Secretary may at any time assess whether a provider is complying with the conditions for continued approval of the provider.

Sanctions

If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may do one or more of the following:

suspend the provider’s approval;

cancel the provider’s approval;

suspend the provider’s approval in respect of one or more child care services;

vary the provider’s approval so that the provider is not approved in respect of one or more child care services;

reduce the number of any child care places allocated to the service under section 198B;

suspend, for a maximum of 3 weeks, payments under section 67EB of fee reduction amounts in respect of sessions of care provided by one or more approved child care services of the provider.

Note 1: The Secretary may also decide to vary or impose additional conditions under subsection 195F(2).

Note 2: Before doing a thing mentioned in paragraphs (a) to (f), the Secretary must follow the procedure in section 199A.

In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in applying the subsection to approved providers.

Notice of sanction

If the Secretary does any of the things mentioned in subsection (1), the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the thing takes effect (which must be not earlier than the day the notice is given).

Revocation of suspension

If the Secretary suspends the provider’s approval or suspends the provider’s approval in respect of one or more child care services, the Secretary may at any time revoke the suspension.

If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).

In exercising a power under subsection (4), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in specifying the day of effect of a revocation of a suspension.

Revocation of suspension of payment in respect of fee reduction

If the Secretary suspends payment in respect of fee reduction, the Secretary may at any time revoke the suspension. If the suspension is revoked, all payments under section 67EB that would have been paid but for the suspension must be paid.

If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).

An approved provider may apply for a variation of the provider’s approval to add a child care service to, or remove a child care service from, the provider’s approval.

The application must:

be given in a form and manner approved by the Secretary; and

contain any information prescribed by the Secretary’s rules; and

contain any other information, and be accompanied by the documents, required by the Secretary.

An application is taken not to have been made:

if the application does not comply with subsection (2); or

in circumstances prescribed by the Minister’s rules.

Variation

If:

an approved provider applies under section 196A to add a child care service to the provider’s approval; and

the Secretary is satisfied that the service satisfies the requirements in subsection 194B(3);

the Secretary may vary the provider’s approval by adding the service to the approval as a service in respect of which the provider is approved.

Notice of approval

If the Secretary varies the provider’s approval, the Secretary must give notice to the provider stating:

the child care services in respect of which the provider is approved as a result of the variation; and

the type and address of each service; and

the day on which the provider’s approval in respect of each child care service takes effect.

For the purposes of paragraph (2)(c), the day on which the approval takes effect must not be earlier than the day the application was made.

Refusal

If the Secretary is not satisfied of the matter referred to in paragraph (1)(b), the Secretary must refuse the application.

If the Secretary refuses the application, the Secretary must give the applicant notice of:

the refusal; and

the reasons for the refusal.

Variation

If an approved provider applies under the Secretary may vary the provider’s approval by removing the service from the approval as a service in respect of which the provider is approved.section 196A to remove a child care service from the provider’s approval,

The Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the variation was made).

Refusal

If the Secretary refuses the application, the Secretary must give the applicant notice of:

the refusal; and

the reasons for the refusal.

Secretary to have regard to prescribed matters

In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in deciding whether to grant a request under subsection (1).

The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if the Secretary reasonably believes that:

the provider is not complying with subsection 195A(4) (compliance with Commonwealth, State and Territory laws); or

there is an imminent threat to the health or safety of a child because of the care provided by an approved child care service of the provider; or

due to urgent circumstances, it is no longer appropriate for one or more approved child care services of the provider to provide child care; or

due to urgent circumstances, it is no longer appropriate for the provider to administer payments under the family assistance law.

If the Secretary suspends the provider’s approval or suspends the provider’s approval in respect of one or more services, the Secretary must give the provider notice of:

the day the suspension takes effect (which must not be earlier than the day the notice is given); and

the grounds for the suspension.

The Secretary may revoke the suspension.

If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).

Application

The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if the provider requests the Secretary in writing to do so.

The request must:

be given in a form and manner approved by the Secretary; and

(b) specify a proposed day for the suspension to take effect (the start day); and

(c) specify a proposed day for the suspension to cease to have effect (the end day), which must not be later than 12 months after the start day; and

contain any other information prescribed by the Secretary’s rules.

Suspension

The Secretary may suspend the approval if the Secretary:

agrees with the start day and the end day specified in the application; and

is satisfied that the suspension is reasonable in the circumstances.

If the Secretary suspends the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify:

the day the suspension takes effect (which may be earlier than the day the notice is given); and

the day the suspension ceases to have effect.

Revocation

The Secretary may revoke the suspension if the Secretary is satisfied that the revocation is reasonable in the circumstances.

If the Secretary revokes the suspension, the Secretary must give notice to the provider of the day the revocation takes effect (which must not be earlier than the day the notice is given).

Suspension of provider approval

If:

an approved provider holds a provider approval within the meaning of the Education and Care Services National Law; and

(b) the provider approval is suspended under the Education and Care Services National Law (the National Law provider suspension);

the approval of the approved provider is taken to be suspended under this section for the same period during which the National Law provider suspension is in effect.

Suspension of service approval

If:

an approved provider holds a service approval within the meaning of the Education and Care Services National Law; and

(b) the service approval is suspended under the Education and Care Services National Law (the National Law service suspension);

the approval of the approved provider in respect of the service covered by the service approval is taken to be suspended under this section for the same period during which the National Law service suspension is in effect.

Secretary must give notice of suspension

If the approval of an approved provider, or the approval of an approved provider in respect of one or more services, is suspended under this section, the Secretary must give the provider notice of the suspension.

If an approved provider has been given 10 infringement notices under Part 5 of the Regulatory Powers Act in respect of alleged contraventions of civil penalty provisions of this Act within a period of 12 months, the Secretary may do one or more of the following:

suspend the approval of the approved provider;

suspend the approval of the approved provider in respect of one or more services;

cancel the approval of the approved provider;

vary the provider’s approval so that the provider is not approved in respect of one or more child care services.

Note: Before doing a thing mentioned in paragraphs (a) to (d), the Secretary must follow the procedure in section 199A.

For the purposes of subsection (1):

an infringement notice is taken to have been given to an approved provider under Part 5 of the Regulatory Powers Act whether it has been paid or not; and

an infringement notice is taken not to have been given to an approved provider under Part 5 of the Regulatory Powers Act if the infringement notice is withdrawn in accordance with section 106 of that Act.

Suspension

If the Secretary suspends the provider’s approval, or suspends the provider’s approval in respect of one or more services, the Secretary must give the provider notice of the day the suspension takes effect (which must not be earlier than the day the notice is given).

The Secretary may revoke the suspension.

If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).

Cancellation

If the Secretary cancels the provider’s approval, the Secretary must give the provider notice of the day the cancellation takes effect (which must not be earlier than the day the notice is given).

Variation

If the Secretary varies the provider’s approval by removing a child care service from the approval, the Secretary must give the provider notice of the day the variation takes effect (which must not be earlier than the day the notice is given).

The Secretary may cancel the approval of an approved provider if the provider requests the Secretary in writing to do so.

In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in deciding whether to grant the request under subsection (1).

If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).

The Secretary must cancel the approval of an approved provider if the Secretary is satisfied that, at the time the provider was approved, the provider did not satisfy the requirements in subsection 194B(1).

If the Secretary cancels the provider’s approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).

Note: Before cancelling the approval the Secretary must follow the procedure in section 199A.

The Secretary must vary the approval of an approved provider so that the provider is not approved in respect of a child care service if the Secretary is satisfied that, at the time the provider was approved in respect of the service, the service did not satisfy the requirements in subsection 194B(3).

If the Secretary varies the provider’s approval by removing the service from the approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).

Note: Before varying the approval the Secretary must follow the procedure in section 199A.

The Secretary may cancel the approval of an approved provider if:

all approved child care services of the provider fail to provide child care for a continuous period of 3 months; and

none of the following apply:

the provider’s approval is suspended under section 197AA for any part of the 3 month period;

all approved child care services of the provider are subject to a determination under section 195C that the service need not operate for the period;

the Secretary is satisfied that, because of special circumstances affecting the provider, the provider’s approval should not be cancelled.

If the Secretary cancels the provider’s approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).

Before cancelling the provider’s approval, the Secretary must request, in writing, that the provider provide within 14 days evidence that the provider is operating a child care service.

The Secretary must have regard to any response to the request in deciding whether to cancel the approval.

The Secretary may vary the approval of an approved provider to remove an approved child care service from the approval if:

the service fails to provide child care for a continuous period of 3 months; and

none of the following apply:

the provider’s approval with respect to the service is suspended under section 197AA for any part of the 3 month period;

the service is subject to a determination under section 195C that the service need not operate for the period;

the Secretary is satisfied that, because of special circumstances affecting the service, the provider’s approval should not be so varied.

If the Secretary varies the provider’s approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).

Before varying the provider’s approval, the Secretary must request, in writing, that the provider provide, within 14 days, evidence that the provider is operating the service.

The Secretary must have regard to any response to the request in deciding whether to vary the approval.

The Secretary must cancel the approval of an approved provider if the provider ceases to operate all the approved child care services of the provider.

If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).

In this section:

ceases to operate has the meaning given by the Minister’s rules.

The Secretary must vary the approval of an approved provider to remove an approved child care service from the approval if the provider ceases to operate the service.

If the Secretary varies the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the notice is given).

In this section:

ceases to operate has the meaning given by the Minister’s rules.

The approval of an approved provider is taken to be cancelled if there are no longer any child care services in respect of which the provider is approved.

If the approval is cancelled under this section, the Secretary must give notice to the provider of the cancellation. The notice must specify the day the cancellation takes effect.

Cancellation of provider approval

If:

an approved provider holds a provider approval within the meaning of the Education and Care Services National Law; and

(b) the provider approval is cancelled under the Education and Care Services National Law (the National Law provider cancellation);

the approval of the approved provider is taken to be cancelled under this section on the same day as the day on which the National Law provider cancellation takes effect.

Note: A provider approval may be cancelled on a number of grounds under the Education and Care Services National Law, including if it is surrendered.

(2) If the approval of an approved provider is cancelled under subsection (1), the Secretary must give the provider notice of the cancellation.

Variation of provider approval following cancellation of service approval

If:

an approved provider holds a service approval within the meaning of the Education and Care Services National Law; and

(b) the service approval is cancelled under the Education and Care Services National Law (the National Law service cancellation);

the approval of the approved provider is taken to be varied under this section to remove the service to which the National Law service cancellation relates from the approval on the same day as the day on which that cancellation takes effect.

Note: A service approval may be cancelled on a number of grounds under the Education and Care Services National Law, including if it is surrendered.

(4) If the approval of an approved provider in respect of one or more services is varied under subsection (3), the Secretary must give the provider notice of the variation.

The Minister’s rules may prescribe the following (the allocation rules):

procedures relating to the allocation of child care places to approved child care services;

matters to be taken into account in working out the number (if any) of child care places to be allocated to approved child care services;

what constitutes a child care place in respect of a specified class of approved child care services;

child care services subject to the allocation rules;

the maximum number of places that can be allocated to approved child care services in a specified class;

any other matters to be taken into account in making such an allocation;

procedures relating to the reduction under section 198C of the number of child care places allocated to approved child care services;

matters to be taken into account in working out the number of child care places by which the number of child care places allocated to approved child care services may be reduced under section 198C;

any other matters to be taken into account in reducing, or deciding whether to reduce, under section 198C the number of child care places allocated to approved child care services.

Initial allocation of child care places

If an approved child care service is subject to the allocation rules, the Secretary must allocate child care places to the service in accordance with the rules.

Additional allocation of child care places

If an approved child care service has been allocated a number of child care places, the approved provider of the service may apply to the Secretary for additional child care places.

The application must:

be given in a form and manner approved by the Secretary; and

contain any information prescribed by the Secretary’s rules; and

contain any other information, and be accompanied by the documents, required by the Secretary.

The Secretary must decide, in accordance with the allocation rules, whether or not to grant the application.

The Secretary must give the applicant notice of the decision under subsection (4).

If the Secretary decides to grant the application, the Secretary must allocate the additional child care places to the service.

The Secretary may reduce, in accordance with the allocation rules, the number of child care places allocated to an approved child care service if:

that number exceeds the number of child care places provided by the service; or

that number exceeds the number of child care places that the service is, under a law of a State or Territory, licensed to provide.

The reduction must not be greater than the number of excess places.

Before the reduction, the Secretary must (unless the provider has informed the Secretary in writing that the allocated number may be reduced) give a notice to the approved provider of the service that:

states that the Secretary proposes to make the reduction; and

states the number of places by which the Secretary proposes to reduce the number of places allocated to the service; and

invites the provider to make written submissions to the Secretary about the proposed reduction; and

is not inconsistent with the allocation rules.

If the approved provider of the service has informed the Secretary in writing that the number of child care places allocated to the service may be reduced, the Secretary may give the provider a notice under subsection (2) before making the reduction.

The Secretary must have regard to any submissions made by the approved provider of the service in accordance with an invitation under paragraph (2)(c) in deciding whether to make the reduction.

If the Secretary reduces the number of child care places allocated to an approved child care service, the Secretary must give the approved provider of the service a notice that states:

the number of places by which the number of places allocated to the service is reduced; and

the day on which the reduction takes effect, which must not be earlier than the day on which the notice is given; and

the number of places allocated to the service, taking account of the reduction.

Before doing a thing mentioned in subsection 195H(1) or the Secretary must give a notice to the provider concerned that:section 197B, 197D or 197E,

states that the Secretary is considering doing the thing; and

sets out the grounds for doing the thing; and

summarises the evidence and other material on which those grounds are based; and

summarises the effect of doing of the thing on eligibility for CCS or ACCS in respect of a session of care provided by an approved child care service of the provider; and

summarises the provider’s rights under this Act to seek a review of the decision to do the thing; and

invites the provider to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.

The Secretary must have regard to any submissions made by the provider in accordance with an invitation under paragraph (1)(f) in deciding whether to do the thing.

If any of the following events occur, the Secretary may publicise the event in any way the Secretary thinks appropriate:

the Secretary refuses under subsection 194B(7) to approve a provider in respect of a child care service;

the Secretary imposes under subsection 195F(2) a condition for continued approval on an approved provider;

the Secretary does one or more of the things mentioned in subsection 195H(1);

the Secretary refuses under subsection 196B(4) to vary an approved provider’s approval by adding a service to the approval;

the Secretary suspends the approval of an approved provider under subsection 197A(1);

the approval of an approved provider, or the approval of an approved provider in respect of one or more services, is suspended by operation of section 197AB;

the Secretary suspends, cancels or varies the approval of an approved provider under subsection 197B(1);

the approval of an approved provider is cancelled or varied by operation of section 197L;

a person is ordered by a court to pay a pecuniary penalty in relation to a civil penalty provision of this Act;

(d) a person is convicted of an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act);

an infringement notice has been issued to a person under Part 5 of the Regulatory Powers Act in relation to an alleged contravention of a civil penalty provision of this Act.

Without limiting subsection (1), the Secretary may publicise information that includes the following:

the name of the provider;

the name and address of an approved child care service or former approved child care service of the provider;

the grounds for the occurrence of the event specified in subsection (1);

if the information relates to a condition imposed under subsection 195F(2)—the condition or details of the condition;

if the information relates to the doing of one or more of the things mentioned in subsection 195H(1):

the things done; and

the day when each thing done takes effect; and

each condition for continued approval of the provider with which the provider has not complied, or is not complying, and details of the non-compliance; and

the day (if any) when each thing done ceases to have effect;

if the information relates to a suspension under subsection 197A(1) or section 197AB:

the day when the suspension takes effect; and

the day (if any) when the suspension ceases to have effect;

if the information relates to a suspension, cancellation or variation under subsection 197B(1):

the day when the suspension, cancellation or variation takes effect; and

the details of the infringement notices which formed the grounds for the suspension, cancellation or variation; and

if the information relates to a suspension—the day (if any) when the suspension ceases to have effect;

if the information relates to a cancellation or variation under section 197L—the day when the cancellation or variation takes effect;

if the information relates to the issuing of an infringement notice—details of the infringement notice.

An approved provider must give the Secretary written notice of the following matters as soon as practicable after the provider becomes aware of the matter:

the provider did not satisfy the requirements in subsection 194B(1) at the time the provider became approved;

a service in respect of which the provider is or was approved did not satisfy the requirements in subsection 194B(3) at the time the provider became approved in respect of the service;

the provider has not complied, or is not complying, with a condition for continued approval of the provider.

Note: Section 204F also requires an approved provider to notify the Secretary of certain matters.

Offence

A person commits an offence if the person contravenes subsection (1).

Penalty: 80 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

If the Secretary is required by a provision of this Part to give a provider notice of a decision, the notice must include a statement of the provider’s rights under this Act to seek a review of the decision.

If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected if the Secretary were to cancel, suspend or vary the provider’s approval because of the Secretary being so satisfied.

A notice under subsection (1) must:

state that the Secretary is satisfied that the provider has not complied, or is not complying, with a condition for continued approval of the provider; and

set out the effect on the individual’s eligibility if the Secretary were to cancel, suspend or vary the provider’s approval.

The notice may set out any other information that the Secretary thinks relevant.

If the Secretary cancels, suspends or varies the provider’s approval under this Part, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected because of that action.

A notice under subsection (3) must:

state that the Secretary has cancelled, suspended or varied the provider’s approval; and

set out the effect of the action on the individual’s eligibility.

The notice may set out any other information that the Secretary thinks relevant.

A notice under this section must be given in a form and manner approved by the Secretary.

If the Minister’s rules specify the provider of a child care service for the purposes of this section:

the provider is not required to satisfy paragraph 194C(a) in order to satisfy the provider eligibility rules; and

the provider is not required to satisfy or comply with any other provision prescribed by the Minister’s rules in order to become, or remain, approved for the purposes of the family assistance law.

The Minister’s rules may prescribe modifications of this Act or the Family Assistance Act to apply in respect of the following persons and periods:

approved providers whose approval takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval takes effect, and ending when the Secretary gives the notice;

approved providers whose approval in respect of a child care service takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval in respect of the service takes effect and ending when the Secretary gives the notice;

providers whose approval, or approval in respect of a child care service, is suspended, for the period of the suspension;

approved providers whose suspension is revoked with effect from a day earlier than the day the Secretary gives the provider notice of the revocation, for the period starting when the revocation takes effect and ending when the Secretary gives the notice.

Subsection (1) does not limit subsection 85GB(1) of the Family Assistance Act.

Notice if a child starts to be enrolled

An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if a child starts to be enrolled for care by the service.

Notice if a child starts to be enrolled before approval given or during suspension of approval

An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if:

on the day a child starts to be enrolled for care by the service:

the provider is not approved, or not approved in respect of the service; or

the provider’s approval, or approval in respect of the service, is suspended; and

after that day, the Secretary gives the provider notice:

that the provider has been approved, or approved in respect of the service; or

that the suspension has been revoked; and

the child is enrolled for care by the service on any day on or after the day the approval or revocation takes effect.

Notice if relevant arrangement entered into

(3) An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if the provider and a person enter into an arrangement (a relevant arrangement) other than a complying written arrangement for the service to provide care to a child.

Content and timing of notices

A notice is given in accordance with this subsection if:

it is given in a form and manner approved by the Secretary; and

it contains the information required by the Secretary; and

for a notice under subsection (1)—it is given by the later of:

7 days after the end of the week in which the child started to be enrolled; or

if the child started to be enrolled in a period, or a series of consecutive periods, to which a payment under section 205A relates—7 days after the end of the period, or the last such period; and

for a notice under subsection (2)—it is given no later than 7 days after the end of the week in which the Secretary gave the notice referred to in paragraph (2)(b); and

for a notice under subsection (3)—it is given no later than 7 days after the end of the week in which the relevant arrangement is entered into.

If an approved provider of an approved child care service fails to give a notice under subsection (1), (2) or (3) by the day required under paragraph (4)(c), (d) or (e) (as the case requires):

the failure does not affect the validity of a notice given after that day; and

the notice is taken to have been given on the last day the notice was required to be given under paragraph (4)(c), (d) or (e) (as the case requires), other than for the purposes of subsections (5) and (6).

Offence

A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).

Civil penalty: 30 penalty units.

A child:

(a) starts to be enrolled for care by a child care service of a provider if:

the provider and an individual enter into a complying written arrangement for the service to provide care to the child; or

the service provides care to the child in the circumstances referred to in subsection (4); and

(b) ceases to be enrolled for care by that service when the earliest of the following events happens:

for an enrolment that started as referred to in subparagraph (a)(i)—the arrangement ends;

for an enrolment that started as referred to in subparagraph (a)(ii)—the care ceases to be provided in those circumstances;

14 weeks have passed since the child last attended any of the service’s sessions of care;

an event prescribed by the Minister’s rules.

The Minister’s rules may prescribe circumstances in which one or more weeks covered wholly or partly by a period of emergency or disaster are to be disregarded for the purposes of subparagraph (1)(b)(iii).

(2) A child is enrolled for care by a service from the day the child starts to be enrolled until the child ceases to be enrolled. To avoid doubt, a child who ceases to be enrolled for care by a service is not enrolled for care by that service until the child starts to be enrolled for care by that service again.

(3) A written arrangement between a provider and an individual is a complying written arrangement if the arrangement complies with the requirements prescribed by the Secretary’s rules.

A service provides care to a child in the circumstances referred to in this subsection if:

immediately before the service starts to provide the care, the child is not enrolled for care by the service; and

any of the following applies in relation to the week in which the service starts to provide the care:

a certificate given by the approved provider of the service under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;

a determination made by the Secretary under section 85CE (determination for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;

the approved provider of the service has applied for a determination under section 85CE of the Family Assistance Act and the application has not been refused; and

the provider gives the Secretary a declaration referred to in paragraph 67CH(1)(c) in relation to sessions of care provided by the service to the child.

An approved provider must ensure that a variation of a complying written arrangement to which the provider is a party is done in writing, if the variation:

has the effect that information in the enrolment notice given by the provider for the child to whom the arrangement relates becomes incorrect; or

relates to a matter prescribed by the Minister’s rules.

Civil penalty: 30 penalty units.

An approved provider must give the Secretary notice in accordance with subsection (3) of the following events in relation to complying written arrangements or relevant arrangements to which the provider is a party and enrolment notices given by the provider:

a complying written arrangement is varied in a way that:

has the effect that information in the enrolment notice given in relation to a child becomes incorrect; or

relates to a matter prescribed by the Minister’s rules for the purposes of paragraph 200C(b);

information in an enrolment notice otherwise becomes incorrect;

information becomes available that, had it been available when an enrolment notice was given, should have been included in the notice;

information becomes available that, had it been available when an enrolment notice was given, would have required the notice to be given in a different form;

a child for whom an enrolment notice has been given ceases to be enrolled for care by the service for the reason mentioned in subparagraph 200B(1)(b)(i) (complying written arrangement ends);

a relevant arrangement in relation to a child has ended.

An approved provider must give the Secretary a notice in accordance with subsection (3) if:

on the day an event referred to in subsection (1) happens, the provider’s approval, or approval in respect of the service, is suspended; and

after that day, the Secretary gives the provider notice that the suspension has been revoked; and

the child is enrolled for care by the service on any day on or after the day the revocation takes effect.

A notice under subsection (1) or (2) is given in accordance with this subsection if it is given:

in a form and manner approved by the Secretary; and

for a notice under subsection (1)—no later than the later of:

7 days after the day the event happened; and

if the event happened in a period, or a series of consecutive periods, to which a payment under section 205A relates—7 days after the end of the period, or the last such period; and

for a notice under subsection (2)—no later than 7 days after the Secretary gave the notice referred to in paragraph (2)(b).

If an approved provider of an approved child care service fails to give a notice under subsection (1) or (2) by the day required under paragraph (3)(b) or (c) (as the case requires):

the failure does not affect the validity of a notice given after that day; and

the notice is taken to have been given on the last day the notice was required to be given under paragraph (3)(b) or (c) (as the case requires), other than for the purposes of subsections (4) and (5).

Offence

A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 30 penalty units.

Requirement to pass on or remit to Secretary fee reduction amount

(1) A provider to whom a notice is given of a fee reduction decision for an individual must, no later than 14 days after the notice is given:

pass on the fee reduction amount for the decision to the individual; or

if it is not reasonably practicable to do so—remit the fee reduction amount to the Secretary, in a manner approved by the Secretary.

Subsection (1) does not apply in relation to a notice that includes a statement to the effect that the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2).

Note 1: See subsections 67CE(6), 106A(3), 109B(2B) and 136(3).

Note 2: In a prosecution for an offence under subsection (3), a defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

If the Secretary is satisfied that there might be an adverse impact on the individual if the fee reduction amount for the decision is passed on or remitted within the period of 14 days referred to in subsection (1), the Secretary may direct that the period of 14 days is extended by such period as the Secretary considers appropriate.

If the Secretary gives a direction under subsection (2A) extending the period of 14 days referred to in subsection (1), subsection (1) has effect as if the reference to 14 days were a reference to the extended period.

The Secretary may give more than one direction under subsection (2A) extending the period referred to in subsection (1).

Offence

A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 80 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

Passing on

A provider may pass on a fee reduction amount by reducing fees or in any other way. As long as the individual receives the benefit of the fee reduction amount from the provider:

the provider is taken to have passed on the fee reduction amount; and

the individual is taken to have been paid an amount of CCS or ACCS equal to the amount of the fee reduction amount.

Notice of remittance

A provider that remits an amount in accordance with paragraph (1)(b) must give the Secretary written notice of the remittance:

in a form and manner approved by the Secretary; and

including any information required by the Secretary.

The provider must give the notice under subsection (6):

no later than 14 days after the notice of the fee reduction decision was given; or

if the Secretary has given a direction under subsection (2A) extending the period of 14 days referred to in subsection (1)—no later than the end of the extended period.

Duty to enforce payment of hourly session fees

A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a child care service to a child in a week, must take all reasonable steps to ensure that:

the individual pays the provider the amount referred to in subsection (1AB) of this section; and

subject to any decision or direction of the Secretary under subsection (1A) or (1B) of this section applicable to the individual or the provider (as the case requires)—the individual makes the payment in accordance with subsection (1AA) of this section.

(1AA) For the purposes of paragraph (1)(b), a payment is made in accordance with this subsection in the following circumstances:

for all providers—the payment is made using an electronic funds transfer system;

for sessions of care provided by a family day care service or an in home care service—the payment is made:

directly to the credit of a bank account that is nominated by the provider, and maintained directly by the provider or a person with management or control of the provider; or

using the payment gateway service, nominated by the provider, of a third party supplier of management software to the provider;

for sessions of care provided by services other than a family day care service or an in home care service—the payment may be made using the payment gateway service, nominated by the provider, of a third party supplier of management software to the provider.

Amount to be paid

(1AB) The amount is the difference between:

the total of the hourly session fees for all sessions of care provided by the service to the child in the week to which the fee reduction decision relates; and

the sum of:

the fee reduction amount for the decision; and

the amount of any payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of the sessions of care.

Note 1: If, under subsection 201BA(1), the provider allows the individual, or the individual’s partner, a permissible staff discount for the week, the amount of the discount is not recoverable from the individual or the individual’s partner: see subsection 201BA(3).

Note 2: If, under subsection 201BB(1), the provider allows the individual, or the individual’s partner, a discount in relation to a session of care provided to the child in the week, the amount of the discount is not recoverable from the individual or the individual’s partner: see subsection 201BB(3).

Exceptions to requirements for making payments

If the Secretary is satisfied that circumstances prescribed by the Minister’s rules exist in relation to a particular individual, the Secretary may decide that one or both of the requirements referred to in paragraph (1AA)(a) or (b) of this section do not apply to the individual.

If the Secretary is satisfied that exceptional circumstances exist in relation to a particular child care service, the Secretary may direct that one or both of the requirements referred to in paragraph (1AA)(a) or (b) of this section do not apply to the making of a payment of all, or a part, of an amount to the provider of the service.

A direction under subsection (1B) is not a legislative instrument.

Offence

A person commits an offence if the person contravenes subsection (1).

Penalty: 80 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

(1) A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a child care service to a child in a week, may allow the individual, or the individual’s partner, a discount (a permissible staff discount) on the pre-discount fee for the week for the individual, or the individual’s partner, if:

the individual, or the individual’s partner, is employed, contracted or otherwise engaged at a child care service by the provider, for any period during that week, as an educator (within the meaning of the Education and Care Services National Law) or a cook; and

the child care service referred to in paragraph (a) is not a family day care service or an in home care service.

Note: For pre-discount fee, see subsection (4).

The permissible staff discount that may be allowed to the individual, or the individual’s partner, for the week under subsection (1) must not be more than 95% of the pre-discount fee for that week for the individual or the individual’s partner.

If the provider allows the individual, or the individual’s partner, a permissible staff discount under subsection (1), the amount of the discount is not recoverable from the individual or the individual’s partner.

Note: Providing care of a child in a child care facility to a current employee at a discount may not attract fringe benefits tax in some circumstances: see subsection 47(2) of the Fringe Benefits Tax Assessment Act 1986.

Meaning of pre-discount fee

(4) For the purposes of this section, the pre-discount fee for the week for the individual, or the individual’s partner, is the difference between:

the total of the hourly session fees for all sessions of care provided by the child care service to the child in the week; and

the sum of:

the fee reduction amount for the fee reduction decision for the individual in relation to those sessions of care; and

the amount of any payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of those sessions of care.

(1) A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a child care service to a child in a week, may allow the individual, or the individual’s partner, a discount (a prescribed circumstances discount) on the pre-discount fee for the week for the individual, or the individual’s partner, that is attributable to one or more sessions of care provided by the service to the child in the week if:

the Minister’s rules prescribe a particular event or circumstance; and

each session of care to which the discount relates is provided during the period prescribed by the Minister’s rules for that event or circumstance; and

any other conditions prescribed by the Minister’s rules for that event or circumstance are met.

Note: For pre-discount fee, see subsection (4).

The prescribed circumstances discount that may be allowed to the individual, or the individual’s partner, under subsection (1) in relation to a session of care provided in the week may be the whole, or a part, of the pre-discount fee for the week for the individual, or the individual’s partner, that is attributable to the session of care.

If the provider allows the individual, or the individual’s partner, a prescribed circumstances discount under subsection (1), the amount of the discount is not recoverable from the individual or the individual’s partner.

Meaning of pre-discount fee

(4) For the purposes of this section, the pre-discount fee for the week for the individual, or the individual’s partner, is the difference between:

the total of the hourly session fees for all sessions of care provided by the child care service to the child in the week; and

the sum of:

the fee reduction amount for the fee reduction decision for the individual in relation to those sessions of care; and

the amount of any payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of those sessions of care; and

the amount of permissible staff discount (if any) allowed to the individual, or the individual’s partner, for the week under subsection 201BA(1).

Duty to charge no more than usual hourly session fee

The approved provider of a child care service must not charge an individual who is eligible for ACCS for a session of care provided by the service an hourly session fee that exceeds the hourly session fee that:

the provider would ordinarily charge an individual who is eligible for CCS for the session of care; or

if the provider has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care—the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).

(1A) The approved provider of a child care service must not charge an individual who benefits from a payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act (a prescribed payment) in respect of a session of care provided by the service an hourly session fee that exceeds the hourly session fee that:

the provider would ordinarily charge an individual who does not receive a prescribed payment; or

if the provider has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care—the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).

The approved provider of a child care service must not charge an individual to whom, or to whose partner, a permissible staff discount is allowed for a week under subsection 201BA(1), an hourly session fee for a session of care provided by the service that exceeds the hourly session fee that:

the provider would ordinarily charge an individual to whom a permissible staff discount is not allowed under subsection 201BA(1) for the week; or

if the provider has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care—the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).

If:

an individual is eligible for CCS for a session of care provided by a child care service to a child; and

the approved provider of the service has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care;

the provider must not charge the individual, for the session of care, an hourly session fee that exceeds the hourly session fee that the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).

Offence

A person commits an offence of strict liability if the person contravenes subsection (1), (1A), (1B) or (1C).

Penalty: 80 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1), (1A), (1B) or (1C).

Civil penalty: 60 penalty units.

This section applies if a provider is given a notice under subsection 67CE(4) of a determination made under section 67CD for an individual for a week, in relation to sessions of care provided to a child by an approved child care service of the provider.

The provider must give the individual a written statement in accordance with subsection (3) for the statement period that includes the week.

A statement is given in accordance with this subsection if:

it includes the following:

the start and end dates of the statement period;

the hourly session fee for each session of care provided by the service to the child in the statement period;

the total of the fee reduction amounts for the fee reduction decisions for the individual of which the provider was given notice for the weeks in the statement period;

any other information prescribed by the Secretary’s rules; and

it is given no later than 7 days after the day the provider is required to give a report under section 204B (requirement to report about children for whom care is provided) for the last week in the statement period.

If the Secretary’s rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary’s rules, by the time prescribed by the Secretary’s rules.

Offence

A person commits an offence of strict liability if the person contravenes subsection (2) or (4).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (2) or (4).

Civil penalty: 30 penalty units.

(7) A statement period is:

a CCS fortnight; or

if the Secretary’s rules prescribe a different period—the prescribed period.

This section applies if a provider is given notice under subsection 106A(2) or 109B(2A) of a decision on review that varies, or substitutes a new determination for, a determination made under section 67CD for an individual for a week.

The provider must:

if it is reasonably practicable to do so—give the individual a written statement in accordance with subsection (3); and

otherwise—notify the Secretary that it is not reasonably practicable for the provider to do so and comply with any requirements prescribed by the Secretary’s rules in the circumstances.

A statement is given in accordance with this subsection if:

it does either of the following:

it is given in accordance with subsection 201D(3) taking into account the effect of the decision on review;

it identifies the statement given under subsection 201D(2) in relation to the determination to which the review related and updates it to take into account the effect of the decision on review; and

it is given no later than the end of the statement period immediately after the statement period in which the provider was given the notice referred to in subsection (1).

If the Secretary’s rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary’s rules, by the time specified in the Secretary’s rules.

Offence

A person commits an offence of strict liability if the person contravenes subsection (2) or (4).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (2) or (4).

Civil penalty: 30 penalty units.

An approved provider must make a written record of information or an event of which it becomes aware if:

the provider would not otherwise have a written record of the information or event; and

the information or event relates to any of the following:

an individual’s eligibility for CCS or ACCS;

the eligibility of an approved child care service of the provider for ACCS (child wellbeing);

the provider’s compliance with the conditions for continued approval of the provider;

any other matter prescribed by the Secretary’s rules.

Offence

A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 50 penalty units.

Requirement to keep records

An approved provider must keep records, in accordance with the Secretary’s rules, of information and events in relation to the following matters:

an individual’s eligibility for CCS or ACCS;

the eligibility of an approved child care service of the provider for ACCS (child wellbeing);

the provider’s compliance with the conditions for continued approval of the provider;

any other matter prescribed by the Secretary’s rules.

Duration of record-keeping

An approved provider must keep the records referred to in subsection (1) until at least:

the end of the period of 7 years starting at the end of the financial year in which the care to which the information or event relates was provided; or

(b) the later time ordered by a court during proceedings for an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act) or for the contravention of a civil penalty provision, if an application for the order was made during:

the period referred to in paragraph (a); or

proceedings relevant to a previous application of this paragraph.

Offence

A person commits an offence of strict liability if the person contravenes subsection (1) or (2).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1) or (2).

Civil penalty: 50 penalty units.

If a certificate is given

If an approved provider gives the Secretary a certificate under section 85CB of the Family Assistance Act, the provider must:

no later than 6 weeks after the day the certificate takes effect, obtain and make a record of:

evidence to support the provider’s view that the child concerned is or was at risk of serious abuse or neglect; and

evidence that the provider has given an appropriate State/Territory support agency notice in accordance with section 204K; and

keep those records for at least the period of 7 years starting at the end of the financial year in which the certificate ceases to have effect.

If certificate is cancelled

If an approved provider:

cancels a certificate under section 85CC of the Family Assistance Act (whether or not the provider gives a replacement certificate within the meaning of that section); or

gives the Secretary a notice under section 67FC (child not at risk of serious abuse or neglect);

the provider must:

no later than 6 weeks after the day the provider cancels the certificate or gives the notice, obtain and make a record of evidence to support the provider’s view that the child is not at risk of serious abuse or neglect for the period concerned; and

keep those records for at least the period of 7 years starting at the end of the financial year in which the provider cancelled the certificate or gave the notice.

Offence

A person commits an offence of strict liability if the person contravenes subsection (1) or (2).

Penalty: 80 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1) or (2).

Civil penalty: 60 penalty units.

Notice of location at which records are kept

(1) If, with effect from a particular day (the effective day), the approval of a provider is:

cancelled or suspended; or

varied to remove a child care service from the approval; or

suspended in respect of a child care service;

the provider must keep the Secretary informed, in accordance with subsection (2), of the location at which the provider’s records, or the provider’s records for the service, are kept.

The provider must keep the Secretary informed by giving the Secretary written notice of the location:

no later than 14 days after the effective day; and

if the records are moved from the notified location—no later than 14 days after the move.

If a suspension of a provider’s approval is revoked, subsection (1) ceases to apply to the provider from the day the revocation takes effect.

If a suspension of a provider’s approval in respect of a child care service is revoked, subsection (1) ceases to apply to the provider in relation to the service from the day the revocation takes effect.

Offence

A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 50 penalty units.

Notice requiring cost and financial information for the purposes of the Early Education Service Delivery Prices Project

The Secretary may, by written notice given in accordance with subsection (2), require an approved provider that is a constitutional corporation to provide information to the Secretary or their delegate in relation to the operation of a child care service of the approved provider, if:

either of the following apply:

the information relates to a cost incurred during a period;

the information is financial information relating to a period; and

the Secretary reasonably believes that the information is required for the achievement of the purposes of the Early Education Service Delivery Prices Project; and

the Secretary reasonably believes that the approved provider is capable of giving the information; and

the Secretary reasonably believes that there is no other means of obtaining the information that is likely to be practicable in the circumstances; and

the Secretary reasonably believes it is not unduly burdensome on the provider to comply with the notice.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

A notice is given in accordance with this subsection if:

it specifies the information required; and

it specifies the relevant period that the information is to relate; and

it specifies the period by which and the manner in which the approved provider must comply with the notice.

Civil penalty for non-compliance

A person must comply with a notice given to the person under subsection (1).

Civil penalty: 60 penalty units.

Disclosure of personal information

For the purposes of:

paragraph 6.2(b) of Australian Privacy Principle 6; and

a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;

the disclosure of personal information by a person in response to a notice given under this section is taken to be a disclosure that is authorised by this Act.

Meaning of constitutional corporation

(5) For the purposes of this section, a constitutional corporation is a corporation to which paragraph 51(xx) of the Constitution applies.

Notice requiring financial information

The Secretary may, by written notice given in accordance with subsection (2), require a person referred to in section 203B to provide financial information in relation to the financial year in which the notice is given or any one or more of the 4 previous financial years, if:

the information is for the purposes of determining whether a large child care provider is financially viable and likely to remain so; and

the Secretary reasonably believes that the person is capable of giving the information.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

A notice is given in accordance with this subsection if:

it specifies the financial information required; and

it specifies the period by which and the manner in which the person must comply with the notice.

Civil penalty for non-compliance

A person must comply with a notice given to the person under subsection (1).

Civil penalty: 60 penalty units.

(4) Subsection (3) does not apply to a person registered under the Australian Charities and Not-for-profits Commission Act 2012 to the extent that:

the notice under subsection (1) requires the person to provide particular financial information to the Secretary; and

the person has provided, or provides, that particular financial information to the Commissioner within the meaning of that Act before the end of the period specified under paragraph (2)(b).

Disclosure of personal information

For the purposes of:

paragraph 6.2(b) of Australian Privacy Principle 6; and

a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;

the disclosure of personal information by a person in response to a notice given under this section is taken to be a disclosure that is authorised by this Act.

The persons to whom a notice under subsection 203A(1) in relation to a large child care provider may be given are the following:

the provider;

a person who, at any time during the financial year, owns 15% or more of:

the provider; or

if the provider consists of more than one person—any of those persons;

a person who, at any time during the financial year, is entitled to receive 15% or more of the dividends paid by:

the provider; or

if the provider consists of more than one person—any of those persons;

a person who, at any time during the financial year, is owed a debt by the provider;

a person who:

acts, or is accustomed to act; or

under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

in accordance with the directions, instructions or wishes of, or in concert with:

the provider; or

if the provider consists of more than one person—any of those persons;

a person who directs or instructs:

the provider; or

if the provider consists of more than one person—any of those persons;

to act in accordance with those directions or instructions;

a person, if:

the provider; or

if the provider consists of more than one person—any of those persons;

acts, or is accustomed to act, so as to give effect to the first-mentioned person’s wishes;

a person with whom:

the provider; or

if the provider consists of more than one person—any of those persons;

acts, or is accustomed to act, in concert;

a person, if:

the provider; or

if the provider consists of more than one person—any of those persons;

is intended or expected to act under a contract or an arrangement or understanding (whether formal or informal) so as to give effect to the first-mentioned person’s directions, instructions or wishes;

a person with whom:

the provider; or

if the provider consists of more than one person—any of those persons;

is intended or expected to act in concert under a contract or an arrangement or understanding (whether formal or informal).

A provider that is a large child care provider for a financial year must give the Secretary a report in accordance with subsection (2).

A report under subsection (1) must:

be given in a form and manner approved by the Secretary; and

include financial information of a kind prescribed by the Minister’s rules relating to:

a financial year; or

if a different period is prescribed by the Minister’s rules—the prescribed period; and

be given:

within 3 months after the end of the period that applies under paragraph (b); or

if a different period for giving the report is prescribed by the Minister’s rules—within the prescribed period.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

Constitutional basis—additional operation of this section

In addition to section 85AB of the Family Assistance Act, this section also has the effect it would have if a reference to a large child care provider were expressly confined to a large child care provider that is a corporation to which paragraph 51(xx) of the Constitution applies.

Note: Section 85AB of the Family Assistance Act sets out the constitutional basis of the provisions of this Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers).

If, on the basis of information received under the Secretary has concerns about the financial viability of an approved provider, the Secretary may engage an appropriately qualified and experienced expert to carry out an independent audit of the provider.section 203A or a report received under section 203BA,

An expert who audits a provider under the Secretary a report about the affairs of the provider.section 203C must prepare and give to

The expert’s report must deal with the following:

whether the provider’s financial statements are based on proper accounts and records;

whether the financial statements are in agreement with the accounts and records and show fairly the financial transactions and the state of the provider;

any matter specified by the expert’s terms of engagement;

such other matters arising out of the financial statements as the expert considers should be reported;

any recommendations relating to maintaining or improving the financial viability of the provider that the expert considers desirable.

Notice if approved provider stops operating service

At least 42 days before an approved provider stops operating a child care service in respect of which the provider is approved, the provider must notify the Secretary, in a form and manner approved by the Secretary, of the provider’s intention to stop operating the service.

Subsection (1) does not apply if the provider stops operating the service for either of the following reasons:

to avoid being in breach of a law of the Commonwealth, a State or a Territory;

due to circumstances beyond the provider’s control.

If the provider stops operating a child care service in respect of which the provider is approved for either of the reasons in subsection (2), the provider must notify the Secretary, in a form and manner approved by the Secretary, as soon as possible.

Offence

A person commits an offence if the person contravenes subsection (1) or (3).

Penalty: 100 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1) or (3).

Civil penalty: 80 penalty units.

Requirement to give further information on request

If:

an approved provider notifies the Secretary in accordance with subsection (1) or (3); and

the Secretary requests the provider in writing to give the Secretary specified information in relation to the provider’s notice;

the provider must give the Secretary the specified information in a form and manner approved by the Secretary and by the time specified in the Secretary’s request (which must be at least 14 days after the request is made).

Offence

A person commits an offence if the person contravenes subsection (6).

Penalty: 100 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (6).

Civil penalty: 80 penalty units.

An approved provider of an approved child care service must give the Secretary a report in accordance with subsection (2) for a week if:

the provider has given the Secretary an enrolment notice for a child; and

care was provided to the child by the service on a day in the week.

Note: The provider must give enrolment notices to the Secretary relating to all children for whom care is provided, including both enrolled children (for whom complying written arrangements are made) and others for whom a relevant arrangement is made (see section 200A).

For the purposes of paragraph (1)(b), the care may be a session of care.

A report is given in accordance with this subsection if:

it is given in a form and manner approved by the Secretary; and

if the child was enrolled for care on a day in the week—it includes the information required by the Secretary relevant to determining whether an individual is eligible for or entitled to be paid CCS or ACCS in relation to the session of care and, if so, the amount; and

it includes any other information prescribed by the Secretary’s rules; and

it is given no later than:

14 days after the end of the week in which the session of care was provided; or

if the week is in a period, or a series of consecutive periods, to which a payment under section 205A relates—14 days after the end of the period, or the last such period; or

if the enrolment notice is given under subsection 200A(2)—the day the enrolment notice is required to be given under that subsection.

For the purposes of paragraphs (2)(b) and (c), and to avoid doubt, a report is not given in accordance with subsection (2) unless the information included as required by those paragraphs is accurate and complete.

Offence

A person commits an offence of strict liability if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).

Penalty: 70 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).

Civil penalty: 50 penalty units.

Updating and withdrawing reports

An approved provider may:

vary the report or substitute it with an updated report; or

if the report was not required to be given—withdraw the report;

as long as the provider does so no later than:

the earlier of the following days:

the 28th day after the start of the week to which the report relates or;

the last day of the financial year in which the CCS fortnight to which the report relates starts; or

if the Secretary agrees to a later day—the later day agreed by the Secretary.

For the purposes of subsection (6), a reference to a report includes a report that is given after the last day the report was required to be given under paragraph (2)(d).

Subsection (6) does not prevent the Minister’s rules under section 195E making provision for or in relation to approved providers varying, substituting or withdrawing reports given under this section.

Requiring provider to withdraw report or substitute accurate report

If the Secretary considers that a detail contained in a report given by an approved provider under subsection 204B(1) (requirement to report about children for whom care is provided) might not be accurate, the Secretary may, by written notice given to the provider, require the provider to withdraw the report, to vary it so that it becomes accurate or substitute it with an accurate report.

For the purposes of subsection (1), a report is taken to have been given by an approved provider under subsection 204B(1) even if the report is not given by the day required under paragraph 204B(2)(d).

Note: The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).

A person must comply with a notice given to the person under subsection (1), no later than:

14 days after the notice was given; or

if the notice specifies a longer period—the end of that period.

Offence

A person commits an offence of strict liability if the person contravenes subsection (2).

Penalty: 70 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (2).

Civil penalty: 50 penalty units.

Correction of report by Secretary

If the Secretary:

knows that a detail contained in a report given by an approved provider under subsection 204B(1) is not accurate; and

knows what the correct detail is; and

has (if practicable) given the provider at least 14 days written notice of the Secretary’s intended correction of the report;

the Secretary may correct the report accordingly.

Notice to give information

The Secretary may give an approved provider of an approved child care service a written notice requiring the provider to give the Secretary information the Secretary requires in order to determine whether to reduce the number of child care places allocated to the service.

The notice must specify the following:

the information the Secretary requires;

the period, or each of the periods, in relation to which the information is required;

the time by which the information in relation to the period, or each of the periods, is required.

The notice may specify either or both of the following:

the form and manner in which the information is to be provided to the Secretary;

the length of time for which the provider must continue to comply with the notice.

Requirement to comply with notice

The provider must comply with the notice in relation to the period, or each of the periods, specified in the notice.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (4).

Civil penalty: 30 penalty units.

The Secretary may, by written notice given to a provider, terminate the effect of a notice given to the provider under subsection (1).

If the Secretary requires an approved provider to give the Secretary information under section 67FH (information about care provided), the provider must comply with the notice.

Offence

A person commits an offence if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 40 penalty units.

The approved provider of an approved child care service must give the Secretary written notice of a matter prescribed by the Minister’s rules:

in a form and manner approved by the Secretary; and

by the time prescribed for the matter in the Minister’s rules.

Offence

A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 50 penalty units.

The Minister’s rules may impose requirements on approved providers for the purposes of monitoring or investigating whether an approved child care service of the provider:

is providing care in circumstances prescribed by the Minister’s rules for the purposes of subparagraph 85BA(1)(c)(iii) of the Family Assistance Act; or

is providing care to a child who is a member of a class prescribed by the Minister’s rules for the purposes of paragraph 85ED(1)(b) of the Family Assistance Act.

The requirements may relate to any of the following:

making and keeping records;

giving information to the Secretary;

any other matter the Minister considers appropriate for the purposes referred to in subsection (1).

To avoid doubt, this section is subject to subsection 85GB(3) of the Family Assistance Act.

(1) If, with effect from a particular day (the effective day), the approval of a provider is:

cancelled or suspended; or

varied so as to remove a child care service from the approval; or

suspended in respect of a child care service;

the provider must continue to comply with a provision specified in an item of the following table, in relation to the matters specified in that item for the provision, on and after the effective day as if the cancellation, variation or suspension had not happened.

Note: For item 12, a report is taken to have been given under subsection 204B(1) for the purposes of subsection 204C(1) even if the report is given late (see subsection 204C(1A)).

Offence

A person commits an offence if the person contravenes subsection (1).

Penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.

The collection, use or disclosure of personal information about an individual is taken to be authorised by this Act for the purposes of the Privacy Act 1988 if the collection, use or disclosure is reasonably necessary for the purposes of determining whether a large child care provider is financially viable and likely to remain so.

Certification for ACCS (child wellbeing)

An approved provider that gives the Secretary a certificate under section 85CB of the Family Assistance Act must, no later than the later of the following days, give an appropriate State/Territory body notice that the provider considers the child to whom the certificate relates is or was at risk of serious abuse or neglect:

the day that is 6 weeks after the day the certificate takes effect;

if the Secretary decides under subsection 85CB(2A) of that Act to extend for the provider the period of 28 days referred to in paragraph 85CB(2)(c) of that Act—the day that decision is made.

Note: A certificate cannot take effect on a day more than 28 days before the certificate is given unless that period is extended by the Secretary under subsection 85CB(2A) of the Family Assistance Act.

Subsection (1) does not apply if:

the certificate is cancelled under section 85CC of the Family Assistance Act and a replacement certificate (within the meaning of paragraph (4)(b) of that section) is not given; or

the certificate is cancelled under section 85CD of the Family Assistance Act; or

the provider was notified of the risk by an appropriate State/Territory support agency.

Determination for ACCS (child wellbeing)

Before making an application for a determination under section 85CE of the Family Assistance Act, an approved provider must give an appropriate State/Territory support agency notice that the provider considers the child to whom the application relates is or was at risk of serious abuse or neglect.

Subsection (3) does not apply if:

the provider gave an appropriate State/Territory support agency a notice in relation to the child under subsection (1) less than 6 weeks ago; or

the provider was notified of the risk by an appropriate State/Territory support agency.

Offence

A person commits an offence of strict liability if the person contravenes subsection (1) or (3).

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (1) or (3).

Civil penalty: 50 penalty units.

Meaning of appropriate State/Territory support agency

(7) Any of the following is an appropriate State/Territory support agency for the State or Territory where care is provided to the child to whom a certificate relates:

a department or agency of the State or Territory that is responsible for dealing with matters relating to the welfare of children;

an organisation dealing with such matters on behalf of such a department or agency in accordance with an agreement between the department or agency and the organisation.

The Secretary may determine that a payment is to be made to an approved provider in relation to a period if all of the following apply:

the provider is required to give a report under subsection 204B(1) (requirement to report about children for whom care is provided) for a week in respect of one or more enrolments;

the provider does not give the report for the week by the time required for that report under section 204B;

the Secretary is satisfied that the failure to give the report is due to circumstances prescribed by the Minister’s rules.

Note: Section 205B deals with the setting off of payments made under this section.

The Minister’s rules:

must prescribe a method of determining the amounts of payments under this section; and

may prescribe any other matters relating to the making of payments under this section.

The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved provider.

The Secretary must give the approved provider written notice of the payment and of the period to which the payment relates.

(1) This section applies if a payment is made under first service) of the provider.section 205A to an approved provider in respect of the enrolment of a child for care by an approved child care service (the

The Secretary must set off an amount equal to the payment against one or more child care service payments that are to be made in respect of an enrolment of a child for care:

by the first service; or

by any other approved child care service of the provider.

Note: For child care service payment see subsection 3(1).

The Secretary may determine that a payment is to be made to an approved provider in relation to a period if the Secretary is satisfied that:

an approved child care service of the provider has been adversely affected by an emergency or disaster; and

the adverse effect on the service has, or is likely to have, a material adverse financial effect on the provider; and

the provider and the service meet the eligibility criteria (if any) specified in the Minister’s rules; and

the period is prescribed by the Minister’s rules; and

the amount of the payment is:

prescribed by the Minister’s rules; or

determined by a method prescribed by the Minister’s rules.

(2) An emergency or disaster is:

an emergency or disaster prescribed by the Minister’s rules for the purposes of this paragraph; or

(b) a major disaster (within the meaning of the Social Security Act 1991); or

(c) a Social Security Act 1991).Part 2.23B major disaster (within the meaning of the

The Minister’s rules may prescribe any other matters relating to the making of payments under this section.

The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved provider.

The Secretary must give the approved provider written notice of the payment and of the period to which the payment relates.

In this Part:

correspondence nominee means a person who, by virtue of an appointment in force under section 219TC, is the correspondence nominee of another person.

nominee means a correspondence nominee or a payment nominee.

payment nominee means a person who, by virtue of an appointment in force under section 219TB, is the payment nominee of another person.

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

relevant benefit means:

family tax benefit by instalment; or

family tax benefit for a past period; or

family tax benefit by single payment/in substitution because of the death of another individual; or

family tax benefit under section 58AA of the Family Assistance Act; or

stillborn baby payment; or

CCS by fee reduction; or

ACCS by fee reduction; or

CCS or ACCS in substitution for an individual who has died; or

single income family supplement; or

one-off payment to families; or

economic security strategy payment to families; or

back to school bonus or single income family bonus; or

clean energy advance; or

ETR payment; or

2020 economic support payment; or

additional economic support payment 2020; or

additional economic support payment 2021.

Subject to the Secretary may, in writing:section 219TD,

appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the family assistance law; and

direct that the whole or a specified part of a specified relevant benefit payable to the nominee’s principal be paid to the nominee.

Subject to the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the family assistance law.section 219TD,

A person may be appointed as the payment nominee and the correspondence nominee of the same person.

(2) The Secretary must not appoint a nominee for a person (the proposed principal) under section 219TB or 219TC except:

with the written consent of the person to be appointed; and

after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.

The Secretary must cause a copy of an appointment under section 219TB or 219TC to be given to:

the nominee; and

the principal.

The Secretary must not appoint a payment nominee or correspondence nominee for an approved provider.

If a person who is a nominee by virtue of an appointment under the Secretary in writing that the person no longer wishes to be a nominee under that appointment, the Secretary must, as soon as practicable, cancel the appointment.section 219TB or 219TC informs

If:

the Secretary gives a person who is a nominee a notice under section 219TJ; and

the person informs the Department that:

an event or change of circumstances has occurred or is likely to occur; and

the event or change of circumstances is likely to have an effect referred to in paragraph 219TJ(1)(b);

the Secretary may suspend or cancel the appointment by virtue of which the person is a nominee.

If:

the Secretary gives a person who is a nominee a notice under section 219TJ or 219TK; and

the nominee does not comply with the requirement of the notice;

the Secretary may suspend or cancel the appointment, or each appointment, by virtue of which the person is a nominee.

While an appointment is suspended, the appointment has no effect for the purposes of the family assistance law.

The Secretary may, at any time, cancel the suspension of an appointment under subsection (2) or (3).

The suspension or cancellation of an appointment, and the cancellation of such a suspension, must be in writing.

The cancellation of an appointment has effect on and from such day, being later than the day of the cancellation, as is specified in the cancellation.

The Secretary must cause a copy of:

a suspension of an appointment; or

a cancellation of an appointment; or

a cancellation of a suspension of an appointment;

to be given to:

the nominee; and

the principal.

If:

a person has a payment nominee; and

the whole or a part of a relevant benefit is payable to the person; and

the Secretary has given a direction in relation to the relevant benefit under section 219TB;

the relevant benefit is to be paid in accordance with the direction.

An amount paid to the payment nominee of a person:

is paid to the payment nominee on behalf of the person; and

is taken, for the purposes of the family assistance law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.

An amount that is to be paid to the payment nominee of a person must be paid to the credit of a bank account nominated and maintained by the nominee.

The Secretary may direct that the whole or a part of an amount that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an amount to which the direction relates is to be paid in accordance with the direction.

Subject to section 219TR and subsection (4), any act that may be done by a person under, or for the purposes of, the family assistance law (other than an act for the purposes of Division 2 or 3) may be done by the person’s correspondence nominee.

Without limiting subsection (1), an application or claim that may be made under the family assistance law by a person may be made by the person’s correspondence nominee on behalf of the person, and an application or claim so made is taken to be made by the person.

An act done by a person’s correspondence nominee under this section has effect, for the purposes of the family assistance law (other than this Part), as if it had been done by the person.

If, under a provision of the family assistance law, the Secretary gives a notice to a person who has a correspondence nominee, subsection (1) does not extend to an act that is required by the notice to be done by the person.

Any notice that the Secretary is authorised or required by the family assistance law to give to a person may be given by the Secretary to the person’s correspondence nominee.

The notice:

must, in every respect, be in the same form, and in the same terms, as if it were being given to the person; and

may be given to the correspondence nominee personally or by post or in any other manner approved by the Secretary.

If:

(a) under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and

the Secretary afterwards gives the person a notice that:

is expressed to be given under the same provision of the family assistance law as the nominee notice; and

makes the same requirement of the person as the nominee notice;

section 219TI ceases to have effect in relation to the nominee notice.

If:

(a) under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and

the Secretary has already given to the person a notice that:

is expressed to be given under the same provision of the family assistance law as the nominee notice; and

makes the same requirement of the person as the nominee notice;

section 219TI does not have effect in relation to the nominee notice.

In this section:

requirement means a requirement, made by the Secretary under this Act, to:

inform the Secretary of a matter; or

give information, or produce a document, to an officer; or

give a statement to the Secretary.

If, under section 219TH, a notice making a requirement of a person is given to the person’s correspondence nominee, the following paragraphs have effect:

for the purposes of the family assistance law, other than this Part, the notice is taken:

to have been given to the person; and

to have been so given on the day on which the notice was given to the correspondence nominee;

any requirement made of the person may be satisfied by the correspondence nominee;

any act done by the correspondence nominee for the purpose of satisfying a requirement of the notice has effect, for the purposes of the family assistance law (other than Division 3 of Part 6 of this Act), as if it had been done by the person;

if the correspondence nominee fails to satisfy a requirement of the notice, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement.

In order to avoid doubt, it is declared as follows:

if the requirement imposes an obligation on the person to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee informs the Secretary of the matter, or gives the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;

if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee gives the information, or produces the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;

if the requirement imposes on the person an obligation to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee does not inform the Secretary of the matter, or give the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice;

if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee does not give the information, or produce the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice.

The Secretary may give a nominee of a person a notice that requires the nominee to inform the Department if:

either:

an event or change of circumstances occurs; or

the nominee becomes aware that an event or change of circumstances is likely to occur; and

the event or change of circumstances is likely to affect:

the ability of the nominee to act as the payment nominee or correspondence nominee of the person, as the case may be; or

the ability of the Secretary to give notices to the nominee under this Act; or

the ability of the nominee to comply with notices given to the nominee by the Secretary under this Act.

Subject to subsection (3), a notice under subsection (1):

must be in writing; and

may be given personally or by post or by any other means approved by the Secretary; and

must specify how the nominee is to give the information to the Department; and

must specify the period within which the nominee is to give the information to the Department.

A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

Subject to subsection (5), the period specified under paragraph (2)(d) must not end earlier than 14 days after:

the day on which the event or change of circumstances occurs; or

the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.

If a notice requires the nominee to inform the Department of any proposal by the nominee to leave Australia, subsection (4) does not apply to that requirement.

This section extends to:

acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

all persons, irrespective of their nationality or citizenship.

(1) The Secretary may give the payment nominee of a person a notice that requires the nominee to give the Department a statement about a matter relating to the disposal by the nominee of an amount paid to the nominee on behalf of the person.

Subject to subsection (3), a notice under subsection (1):

must be in writing; and

may be given personally or by post or by any other means approved by the Secretary; and

must specify how the nominee is to give the statement to the Department; and

must specify the period within which the nominee is to give the statement to the Department.

A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

The period specified under paragraph (2)(d) must not end earlier than 14 days after the day on which the notice is given.

A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.

A nominee must not refuse or fail to comply with a notice under subsection (1).

Penalty: 60 penalty units.

Subsection (6) applies only to the extent to which the person is capable of complying with the notice.

Subsection (6) does not apply if the person has a reasonable excuse.

An offence against subsection (6) is an offence of strict liability.

This section extends to:

acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

all persons, irrespective of their nationality or citizenship.

Nothing in this Part has the effect of rendering a person guilty of an offence against this Act in respect of any act or omission of the person’s correspondence nominee.

A nominee of a person is not subject to any criminal liability under the family assistance law in respect of:

any act or omission of the person; or

anything done, in good faith, by the nominee in his or her capacity as nominee.

This section has effect subject to section 219TK.

It is the duty of a person who is the payment or correspondence nominee of another person at all times to act in the best interests of the principal.

A nominee does not commit a breach of the duty imposed by subsection (1) by doing an act if, when the act is done, there are reasonable grounds for believing that it is in the best interests of the principal that the act be done.

A nominee does not commit a breach of the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.

Nothing in this Part is to be taken to be an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.

Nothing in this Part is intended in any way to limit or affect the Secretary’s powers under other provisions of the family assistance law to give notices to, or make requirements of, a person who has a nominee.

If, under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee, the Secretary may inform the correspondence nominee of the giving of the notice and of the terms of the notice.

If:

under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and

the notice requires the person:

to attend the Department; or

to attend a particular place; and

the Secretary informs the person’s correspondence nominee of the giving of the notice;

the correspondence nominee may attend the Department or place, as the case may be, with the person if the person so wishes.

If a person’s correspondence nominee is a body corporate, the last reference in subsection (1) to the correspondence nominee is to be read as a reference to an officer or employee of the correspondence nominee.

Provisions subject to monitoring

The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:

a civil penalty provision;

the following conditions for continued approval of an approved provider:

subsections 195A(1), (2), (3) and (4);

subsection 195C(1);

subsection 195D(1);

section 195E;

subsection 195F(1);

section 203AA;

section 203A;

paragraphs 197A(1)(b), (c) and (d);

a listed child care information provision (see section 219UB).

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.

Information subject to monitoring

Information given in compliance or purported compliance with one or more of the listed child care information provisions (see section 219UB) is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Related provisions

For the purposes of Part 2 of the Regulatory Powers Act, each of the following provisions is related to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

a provision of Division 6 of Part 3A that creates an offence;

a provision of Part 8A that creates an offence;

(c) a provision of the Crimes Act 1914 or the Criminal Code that relates to this Act and creates an offence.

Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

the Secretary is the authorised applicant; and

a person appointed under section 219UD is an authorised person; and

each of the following is an issuing officer:

a Judge of the Federal Circuit and Family Court of Australia (Division 2);

a Judge of the Federal Court of Australia;

a magistrate; and

the Secretary is the relevant chief executive; and

each of the following is a relevant court:

the Federal Court of Australia;

the Federal Circuit and Family Court of Australia (Division 2).

Delegation by authorised applicant

The authorised applicant may, in writing, delegate the powers and functions mentioned in subsection (4B) to an officer within the meaning of this Act who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, in the agency.

The powers and functions that may be delegated under subsection (4A) are as follows:

powers and functions under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) of this section;

powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a) of this subsection.

A person exercising powers or performing functions under a delegation under subsection (4A) must comply with any directions of the authorised applicant.

Delegation by relevant chief executive

The relevant chief executive may, in writing, delegate the power under section 35 of the Regulatory Powers Act to issue identity cards to authorised persons to an officer within the meaning of this Act.

A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.

Person assisting

An authorised person may be assisted by other persons (including members of an audit team) in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

A provision listed in the table is a listed child care information provision.

Paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is taken to include a reference to a person who apparently represents the occupier.

If the consent referred to in paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is given by a person who apparently represents the occupier, references in the following provisions of the Regulatory Powers Act to the occupier are taken to be references to the person:

subparagraph 20(4)(b)(ii);

subsection 24(2);

section 25;

subsection 29(4).

Subsections (3) to (5) apply if:

an authorised person enters premises during:

if a child care service is operated at the premises—the operating hours for the service; or

if a child care service is not operated at the premises—ordinary business hours; and

the authorised person’s entry is not made under a monitoring warrant issued under section 32 of the Regulatory Powers Act, as that section applies in relation to this Act; and

the occupier of the premises has not consented to the authorised person’s entry; and

the Secretary has authorised the authorised person’s entry for the purposes of this paragraph; and

before entering the premises, the authorised person:

announces that they are authorised to enter the premises; and

shows their identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and

gives any person at the premises an opportunity to allow entry to the premises.

For the purposes of paragraph (1)(d), the Secretary may, in writing, authorise an authorised person to enter premises in accordance with this section if:

the Secretary is satisfied that entry is necessary for the purposes of exercising monitoring powers (within the meaning of the Regulatory Powers Act) or powers under section 24 of that Act in relation to:

a provision that is subject to monitoring under Part 2 of that Act; or

information that is subject to monitoring under Part 2 of that Act; and

if an in home care service is operated at the premises—the Secretary is satisfied that the consent of the occupier to the entry cannot reasonably be obtained.

No requirement to obtain consent

Despite paragraph 18(2)(a) and sections 24 and 25 of the Regulatory Powers Act, the authorised person is not required to obtain the consent of the occupier of the premises to the authorised person’s entry.

However, if consent is not obtained, the authorised person must not exercise powers under section 22 of the Regulatory Powers Act in relation to a related provision.

Note: For related provisions, see subsection 219UA(3).

Responsibility to provide facilities and assistance

The occupier of premises to which this section relates, or another person who apparently represents the occupier, must provide:

an authorised person entering the premises in accordance with this section; and

any person assisting the authorised person;

with all reasonable facilities and assistance for the effective exercise of their powers under Part 2 of the Regulatory Powers Act.

Fault-based offence

A person commits an offence if:

the person is subject to subsection (5); and

the person fails to comply with that subsection.

Penalty: 60 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (5).

Civil penalty: 30 penalty units.

Meaning of operating hours

(8) For the purposes of this section, operating hours has the meaning prescribed by the Minister’s rules.

The Secretary may, in writing, appoint any of the following as an authorised person for the purposes of this Act:

a person who holds, or performs the duties of, an appointment, office or position under a law of the Commonwealth or of a State or Territory;

an employee of an authority of the Commonwealth or of a State or Territory;

a person performing services for the Commonwealth under a contract with the Commonwealth.

The Secretary must not appoint a person as an authorised person unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an authorised person.

An authorised person must, in exercising powers as such, comply with any directions of the Secretary.

If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

Enforceable civil penalty provisions

Each civil penalty provision of this Act and the Family Assistance 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

For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions in this Act.

Relevant court

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:

the Federal Court of Australia;

the Federal Circuit and Family Court of Australia (Division 2).

A person commits an offence if:

the Secretary requires, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and

the person fails to comply with the requirement.

Penalty: 10 penalty units.

A requirement made under subsection (1) is not a legislative instrument.

The Secretary may require a person to assist under subsection (1) only if:

it appears to the Secretary that the person is unlikely to have:

contravened the civil penalty provision to which the application relates; or

committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and

the Secretary suspects or believes that the person can give information relevant to the application.

The Secretary cannot require 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.

The Federal Court of Australia or the Federal Circuit and Family Court of Australia (the Secretary may apply to the court for an order under this subsection.Division 2) may order a person to comply with a requirement under subsection (1) in a specified way. Only

For the purposes of this section, it does not matter whether the application for the civil penalty provision has actually been made.

Note: Subsection (1) 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.

Provisions subject to an infringement notice

A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

For the purposes of Part 5 of the Regulatory Powers Act, a person appointed under subsection (3) is an infringement officer in relation to the provisions mentioned in subsection (1).

The Secretary may, in writing, appoint an officer of the Department as an infringement officer for the purposes of this Act.

Relevant chief executive

For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).

The relevant chief executive may, in writing, delegate the powers and functions of the relevant chief executive under Part 5 of the Regulatory Powers Act to an officer within the meaning of this Act.

Single infringement notice may deal with more than one contravention

Despite subsection 103(3) of the Regulatory Powers Act, a single infringement notice may be given to a person in respect of:

2 or more alleged contraventions of a provision mentioned in subsection (1); or

alleged contraventions of 2 or more provisions mentioned in subsection (1).

However, the notice must not require the person to pay more than one amount in respect of the same conduct.

(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.

(2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.

Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.

(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.

For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.