When a primary claimant is eligible for parental leave pay
Part 1‑1 Introduction
1.1 Name of Rules
These Rules are the Paid Parental Leave Rules 2010.
Part 1‑2 Definitions
1.3 Definitions
In these Rules:
Act means the Paid Parental Leave Act 2010.
incapable of caring for a child has the meaning given by rule 1.4.
parenting order has the meaning given by subsection 64B (1) of the Family Law Act 1975.
parenting plan has the meaning given by subsection 63C (1) of the Family Law Act 1975.
test day has the meaning given by rule 2.1 (primary claimants), 2.5 (secondary claimants) or 2.10 (tertiary claimants).
1.4 Meaning of incapable of caring for a child
(1) A person is incapable of caring for a child on a day if, on that day:
(a) there is a parenting order in force resulting in the person not providing care for the child; or
(b) the person is deceased; or
(c) the person is in prison or otherwise institutionalised; or
(d) the person’s whereabouts are unknown; or
(e) the person suffers from a medical condition that makes the person incapable of providing care for the child; or
(f) the Secretary is satisfied that the person is, for a reason outside the control of the person, incapable of providing care for the child.
(2) The person is not incapable of caring for a child if the person voluntarily chooses not to provide care for the child.
Example
A person may voluntarily choose not to provide care for a child by deciding to travel overseas on a holiday or to visit relatives or friends or by deciding to look after other relatives.
Part 2‑3 Eligibility for parental leave pay
Division 2.3.1 When a person is eligible for parental leave pay
Subdivision 2.3.1.1—When a primary claimant is eligible for parental leave pay
2.1 When a primary claimant is eligible for parental leave pay
For the purposes of subparagraph 31(4)(a)(iv) and paragraph 31AA(4)(e) of the Act, this Subdivision prescribes conditions that a person who is a primary claimant must satisfy on a day (the test day) in order to be eligible for parental leave pay for a child on that day.
2.2 Conditions
(1) The conditions are that: (a) on the test day, the person: (i) is the primary carer of the child; or (ii) satisfies rule 2.4, 2.13 or 2.14 for the child; and (b) if the test day is not a flexible PPL day for the child—the person has not returned to work on (or before) the test day; and (c) if the test day is a flexible PPL day for the child—the person is performing no more than 1 hour of paid work on the test day. (2) However: (a) disregard a return to work on a day if: (i) the person satisfies rule 2.3, 2.14, 2.15, 2.16 or 2.17 for the child on the day; or (ii) the person satisfies rule 2.4 for the child on the day because of the reason set out in paragraph 2.4(2)(b); and (b) disregard paid work performed on the test day if: (i) the person is performing that work for a permissible purpose; or (ii) the person satisfies rule 2.3, 2.14, 2.15, 2.16 or 2.17 for the child on the test day; or (iii) the person satisfies rule 2.4 for the child on the test day because of the reason set out in paragraph 2.4(2)(b).
2.3 Work requirements—child remains in hospital following birth
A person satisfies this rule for a child on a day if: (a) the person is the birth mother of the child; and (b) the child is required to remain in hospital or is hospitalised immediately after their birth for one or more of the following reasons: (i) the child was born prematurely; (ii) the child developed a complication or contracted an illness during their period of gestation or at birth; (iii) the child developed a complication or contracted an illness following their birth; and (c) on that day: (i) that stay in hospital is continuing; or (ii) the child is being discharged from that stay in hospital; and (d) that day is on or after the 14th day after the day the child is born.
2.4 Work requirements—birth mother relinquishing child
(1) A person satisfies this rule for a child on a day if: (a) the person is the birth mother of the child; and (b) that day is within 18 weeks after the child’s birth; and (c) on that day, the person is not caring for the child for a reason set out in subrule (2). (2) The reasons are either: (a) because the person has relinquished the child: (i) as part of the process for the adoption of the child; or (ii) because the child was born of a surrogacy arrangement; or (iii) because the child was removed from the person’s care by a State or Territory child protection agency; or (b) because: (i) the child is stillborn or has died before that day; and (ii) the person would have relinquished the child for a reason set out in paragraph (a) had the child not been stillborn or died.
Subdivision 2.3.1.2—When a secondary claimant is eligible for parental leave pay
2.5 When a secondary claimant is eligible for parental leave pay
For the purposes of paragraphs 31(4)(b) and 31AA(5)(b) of the Act, this Subdivision prescribes conditions that a person who is a secondary claimant must satisfy on a day (the test day) in order to be eligible for parental leave pay for a child on that day.
Note: For normal circumstances, the conditions are set out in rule 2.6. For exceptional circumstances, the conditions are set out in rule 2.7.
2.6 Conditions—secondary claimants in normal circumstances
(1) If the person can make a secondary claim for the child because of paragraph 54(2)(a), (b) or (c) of the Act, the conditions are that: (a) the person satisfies the work test on the test day; and (b) the person satisfies the income test on the test day; and (c) the person satisfies the Australian residency test on the test day; and (d) on the test day, the person: (i) is the primary carer of the child; or (ii) satisfies rule 2.13 or 2.14 for the child; and (e) if the test day is not a flexible PPL day for the child—the person has not returned to work on (or before) the test day; and (f) if the test day is a flexible PPL day for the child—the person is performing no more than 1 hour of paid work on the test day. (2) However: (a) if the test day is a flexible PPL day for the child—paragraphs (1)(a) and (b) only apply if the person has not previously satisfied the work and income tests in relation to the child; and (b) disregard a return to work on a day if the person satisfies rule 2.8, 2.14, 2.15, 2.16 or 2.17 for the child on the day; and (c) disregard paid work performed on the test day if: (i) the person is performing that work for a permissible purpose; or (ii) the person satisfies rule 2.8, 2.14, 2.15, 2.16 or 2.17 for the child on the test day.
2.7 Conditions—secondary claimants in exceptional circumstances
(1) If the person can make a secondary claim for the child because of paragraph 54(2)(d) of the Act, the conditions are that: (a) the person satisfies the Australian residency test on the test day; and (b) on the test day, the person: (i) is the primary carer of the child; or (ii) satisfies rule 2.13 or 2.14 for the child; and (c) if the test day is not a flexible PPL day for the child—the person has not returned to work on (or before) the test day; and (d) if the test day is a flexible PPL day for the child—the person is performing no more than 1 hour of paid work on the test day.
Note: For when the person can make a secondary claim for the child because of paragraph 54(2)(d) of the Act, see Subdivision 2.4.1.2 of this instrument.
(2) However: (a) disregard a return to work on a day if the person satisfies rule 2.9, 2.14, 2.15, 2.16 or 2.17 for the child on the day; and (b) disregard paid work performed on the test day if: (i) the person is performing that work for a permissible purpose; or (ii) the person satisfies rule 2.9, 2.14, 2.15, 2.16 or 2.17 for the child on the test day.
2.8 Work requirements in normal circumstances—child remains in hospital following birth
A person satisfies this rule for a child on a day if: (a) the person is: (i) a father of the child; or (ii) a partner of the birth mother; or (iii) a partner of a father of the child; and (b) the child is required to remain in hospital or is hospitalised immediately after their birth for one or more of the following reasons: (i) the child was born prematurely; (ii) the child developed a complication or contracted an illness during their period of gestation or at birth; (iii) the child developed a complication or contracted an illness following their birth; and (c) on that day: (i) that stay in hospital starts or is continuing; or (ii) the child is being discharged from that stay in hospital.
2.9 Work requirements in exceptional circumstances—working while care arrangements being settled
A person satisfies this rule for a child on a day if: (a) that day is during the period: (i) starting when the primary claimant stopped caring for the child; and (ii) ending when the child’s care arrangements were settled; and (b) the child’s care arrangements were settled within a reasonable time after the primary claimant stopped caring for the child.
Subdivision 2.3.1.3—When a tertiary claimant is eligible for parental leave pay
2.10 When a tertiary claimant is eligible for parental leave pay
For the purposes of paragraphs 31(4)(b) and 31AA(5)(b) of the Act, this Subdivision prescribes conditions that a person who is a tertiary claimant must satisfy on a day (the test day) in order to be eligible for parental leave pay for a child on that day.
2.11 Conditions
(1) The conditions are that: (a) the person satisfies the Australian residency test on the test day; and (b) on the test day, the person: (i) is the primary carer of the child; or (ii) satisfies rule 2.13 or 2.14 for the child; and (c) if the test day is not a flexible PPL day for the child—the person has not returned to work on (or before) the test day; and (d) if the test day is a flexible PPL day for the child—the person is performing no more than 1 hour of paid work on the test day. (2) However: (a) disregard a return to work on a day if the person satisfies rule 2.12, 2.14, 2.15, 2.16 or 2.17 for the child on the day; and (b) disregard paid work performed on the test day if: (i) the person is performing that work for a permissible purpose; or (ii) the person satisfies rule 2.12, 2.14, 2.15, 2.16 or 2.17 for the child on the test day.
2.12 Work requirements—working while care arrangements being settled
A person satisfies this rule for a child on a day if: (a) that day is during the period: (i) starting when the secondary claimant stopped caring for the child; and (ii) ending when the child’s care arrangements were settled; and (b) the child’s care arrangements were settled within a reasonable time after the secondary claimant stopped caring for the child.
Subdivision 2.3.1.3A—Common requirements for eligibility for parental leave pay
2.13 Care requirements for all claimants—temporary inability to care
A person satisfies this rule for a child on a day if: (a) the person: (i) will be the primary carer of the child after that day; or (ii) was the primary carer of the child before that day; and (b) on that day, the person is temporarily unable to be the primary carer of the child due to events beyond the person’s control, other than an event mentioned in paragraph 2.14(b); and (c) the continuous period of this temporary inability (that includes that day) is likely to be less than 26 weeks; and (d) there is no determination in force under the Act that parental leave pay is payable for the child to another person for that day; and (e) the Secretary is satisfied that the person would have been the child’s primary carer for that day except for the person’s temporary inability to be the child’s primary carer.
2.14 Care requirements for all claimants—loss of care for child
A person satisfies this rule for a child on a day if: (a) sometime before that day, the person was the primary carer of the child; and (b) an event occurs in relation to the child: (i) on or before that day; and (ii) without the person’s consent; that prevents the child being in the person’s care on that day; and (c) the person takes reasonable steps on or before that day to have the child again in the person’s care sometime after that day; and (d) on that day, the person, or the person’s partner: (i) is the child’s legal parent; or (ii) is otherwise legally responsible for the child; and (e) in the case where the child is in the care of another legal parent of the child on that day—the person, or the person’s partner, has a court order or a parenting plan to the effect that the child is to live with the person or the person’s partner on or after that day; and (f) there is no determination in force under the Act that parental leave pay is payable for the child to another person for that day.
2.15 Work requirements for all claimants—recall to duty
A person satisfies this rule for a child on a day if, on that day, the person: (a) is a defence force member or a law enforcement officer; and (b) is performing paid work because the person has been compulsorily recalled to duty.
2.16 Work requirements for all claimants—summons or other compulsory process
A person satisfies this rule for a child on a day if, on that day, the person is performing paid work because the person has to comply with the requirements of a summons or other compulsory process to appear to: (a) give evidence or information; or (b) produce documents or other things.
2.17 Work requirements for all claimants–return to work due to State, Territory or national emergency
(1) A person satisfies this rule for a child on a day if, on that day, the person: (a) is a health professional, emergency services worker or other essential worker; and (b) is performing paid work because the person has returned to work in response to a State, Territory or national emergency (including in response to the coronavirus known as COVID‑19). (2) For the purposes of this rule, a person is an essential worker if the person has specific skills, or is involved in the production of goods or the delivery of services, where the skills, goods or services are essential in responding to an emergency.
Subdivision 2.3.1.4—When a person is exempt from newly arrived resident’s waiting period
2.22B Purpose
This Subdivision is made for subsection 31A(6) of the Act and prescribes circumstances in which subsection 31A(1) of the Act does not apply to a person.
2.22C Prescribed circumstances—certain primary and secondary claimants
(1) The circumstances are:
(a) the person is the primary claimant or secondary claimant in relation to a child to whom paragraphs 15(1)(a), (b) and (c) of the Act apply; and
(b) if the secondary claimant’s PPL period would start on the day the child was born:
(i) subrule (2) applies to the primary claimant on the day the child was born; and
(ii) subrule (2) applies to the secondary claimant on the day before the day the child was born; and
(c) if paragraph 15(4)(a) of the Act would apply in making a payability determination in relation to the child:
(i) subrule (2) applies to the primary claimant on each day during the period referred to in that paragraph; and
(ii) subrule (2) applies to the secondary claimant on the day before the secondary claimant’s PPL period would start; and
(d) if paragraph 15(4)(b) of the Act would apply in making a payability determination in relation to the child:
(i) subrule (2) applies to the secondary claimant on each day during the period referred to in that paragraph; and
(ii) subrule (2) applies to the primary claimant on the day the child was born; and
(e) if paragraph 15(4)(c) of the Act would apply in making a payability determination in relation to the child:
(i) subrule (2) applies to the primary claimant on each day during the first part of the period as referred to in subparagraph 15(4)(c)(i) of the Act; and
(ii) subrule (2) applies to the secondary claimant on each day during the last part of the period as referred to in subparagraph 15(4)(c)(ii) of the Act.
(2) This subrule applies to a person on a day if:
(a) the person is receiving either of the following payments on the day:
(i) a social security pension (within the meaning of the Social Security Act 1991) or a social security benefit (within the meaning of that Act);
(ii) farm household allowance under the Farm Household Support Act 2014; or
(b) the day is in a newly arrived resident’s waiting period the person is subject to under section 31A of the Act and subsection 31A(7) or (7A) of the Act applies to the person on the day; or
(c) the person is not subject to a newly arrived resident’s waiting period under section 31A of the Act on the day.
Division 2.3.2 The work test
Subdivision 2.3.2.1 Paid leave
2.23 Purpose
This Subdivision is made for subsection 34 (2) of the Act and prescribes what is, or is not, taken to be paid leave.
2.24 What is taken to be paid leave
A person is taken to be on paid leave if:
(a) the person is on unpaid leave from his or her employer; and
(b) during the period of unpaid leave the person receives workers’ compensation payments or accident compensation payments from another body in relation to the person’s employment with his or her employer.
Subdivision 2.3.2.2 Paid work
2.25 Purpose
This Subdivision is made for subsection 35 (5) of the Act and prescribes what is, or is not, taken to be paid work.
2.26 What is not taken to be paid work
(1) A person is not taken to perform paid work only because the person:
(a) performs an activity which is required to be performed as a condition for receiving a social security payment; or
(b) both:
(i) is a prisoner; and
(ii) performs work otherwise than under a formal prisoner employment program; or
(c) engages in an activity as a volunteer, whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity; or
(d) receives:
(i) interest, unless subrule (2) applies; or
(ii) rents, dividends or non‑share dividends; or
(iii) any other passive income.
(2) Subparagraph (1) (d) (i) does not apply if:
(a) the person’s principal business consists of lending money; or
(b) the interest is received in relation to a debt due to the person for goods supplied or services rendered by the person in the course of the person’s business.
(3) In this rule:
passive income, for a person, means income that is not obtained as a result of, or derived from, the personal exertion of the person.
social security payment has the same meaning as in section 23 of the Social Security Act 1991.
Subdivision 2.3.2.3—Jobkeeper payment
2.26A Purpose
This Subdivision is made for section 35B of the Act and prescribes the method for calculating hours of work a person is taken to have performed on a day in a jobkeeper payment period.
2.26B Calculating hours of qualifying work on a day in a jobkeeper payment period
(1) For the purposes of step 5 of the method statement in section 32 of the Act, if a person performs qualifying work on a day only because the day is in a jobkeeper payment period for the person, the person is taken to have performed on that day:
(a) 7.6 hours of work, if the day is a week day; and
(b) no hours of work, if the day is a Saturday or Sunday.
(2) For the purposes of step 5 of the method statement in section 32 of the Act, if a person performs qualifying work on a day because both:
(a) the person performs at least one hour of paid work on the day; and
(b) the day is in the person’s jobkeeper payment period;
the person is taken to have performed on that day the greater of:
(c) the hours of work the person would be taken to have performed if subrule (1) applied; and
(d) the number of hours of paid work performed by the person on that day.
(3) For the purposes of step 5 of the method statement in section 32 of the Act, if a person performs qualifying work on a day because both:
(a) the person takes a period of paid leave of at least one hour on the day; and
(b) the day is in the person’s jobkeeper payment period;
the person is taken to have performed on that day the greater of:
(c) the hours of work the person would be taken to have performed if subrule (1) applied; and
(d) the number of hours of paid leave taken by the person on that day.
Part 2‑4 Claims for parental leave pay
Division 2.4.1 Claims for parental leave pay
Subdivision 2.4.1.1 Exceptional circumstances for primary claims
2.27 Who can make a primary claim
(1) This Subdivision is made for paragraph 54 (1) (c) of the Act and prescribes the circumstances that are exceptional circumstances in which a primary claim can be made for a child.
(2) A person who satisfies the circumstances prescribed by this Subdivision can make a primary claim.
2.28 Exceptional circumstances for primary claimants — general
(1) The circumstances are that the person:
(a) has, and is likely to continue to have, care of the child for at least 26 weeks; and
(b) became, or will become, the child’s primary carer:
(i) before the child’s first birthday; or
(ii) for an adopted child — before the first anniversary of the day of placement of the child; and
(c) is covered by subrule (2); and
(d) if rule 2.29 applies to the person — satisfies the circumstances mentioned in subrule 2.29 (2).
(2) For paragraph (1) (c), a person is covered by this subrule if:
(a) the birth mother, or adoptive parent, of the child is incapable of caring for the child and will be incapable, or is likely to be incapable, of caring for the child for at least 26 weeks; or
(b) the Secretary is satisfied on reasonable grounds that:
(i) the person became the primary carer of the child in special circumstances; and
(ii) it would be unreasonable for the birth mother, or adoptive parent, of the child to care for the child; and
(iii) it is in the interests of the child for the person to care for the child.
Note For what is unreasonable and in the interests of the child, see rule 2.31.
(3) This rule does not apply to circumstances to which rule 2.30 applies.
2.29 Exceptional circumstances — primary claimants who have no specific relationship with child
(1) This rule is made for paragraph 2.28 (1) (d) and applies to a person who is not:
(a) the partner of the birth mother of the child; or
(b) for an adopted child — the partner of the adoptive parent of the child; or
(c) for parents who are divorced or separated:
(i) the other legal parent of the child; or
(ii) the partner of the other legal parent of the child.
(2) For a person to whom this rule applies, the circumstances are as follows:
(a) the partner of the birth mother, or of the adoptive parent, is incapable of caring for the child;
(b) the child was not entrusted to the care of the person, or to the care of the person’s partner, under a decision by a State or Territory child protection agency under legislation dealing with child protection in the State or Territory;
(c) the Secretary is satisfied on reasonable grounds that:
(i) the person became the primary carer of the child in special circumstances; and
(ii) it would be unreasonable for the partner of the child’s birth mother, or the partner of the child’s adoptive parent, to care for the child; and
(iii) it is in the interests of the child for the person to care for the child.
Note For what is unreasonable and in the interests of the child, see rule 2.31.
2.30 Exceptional circumstance — surrogacy arrangements
(1) This rule applies to a person who is the primary carer of a child born of a surrogacy arrangement.
(2) For a person to whom this rule applies, the circumstances are that the person:
(a) has, and is likely to continue to have, care of the child for at least 26 weeks; and
(b) became, or will become, the child’s primary carer before the child’s first birthday; and
(c) satisfies the circumstances mentioned in subrule 2.30(3).
(3) A person is covered by this subrule if the Secretary is satisfied on reasonable grounds that:
(a) the person is the primary carer of a child born of a surrogacy arrangement; and
(b) it is in the interests of the child for the person to care for the child
(4) For paragraph 2.30(3)(b), in considering what is in the interests of the child, the Secretary is to consider:
(a) whether the person intends to be the long‑term primary carer of the child;
(b) whether the surrogate birth mother has relinquished care of the child;
(c) any other matter that the Secretary considers relevant to a proper consideration of what is in the interests of the child.
2.31 Unreasonableness and interests of child
(1) For subparagraphs 2.28 (2) (b) (ii), 2.29 (2) (c) (ii) and 3A.11 (3) (b) (ii), it is unreasonable for a person to care for the child if the Secretary is satisfied that:
(a) there has been extreme family breakdown, or similar circumstances, in relation to the child’s family situation; or
(b) there is a serious risk to the child’s physical or mental wellbeing from violence, neglect or sexual abuse in the child’s family situation.
(2) For subparagraphs 2.28 (2) (b) (iii), 2.29 (2) (c) (iii) and 3A.11 (3) (b) (iii), in considering what is in the interests of the child, the Secretary is to consider the arrangements for the child’s care with the person in comparison with the arrangements for the child’s care in the child’s previous family situation.
Example
The Secretary may consider that it is in the interests of the child for the person to care for the child if the child’s birth mother refuses to provide any care for the child or because the child is severely disabled and the mother is incapable of providing for the child’s needs.
Subdivision 2.4.1.2 Exceptional circumstances for secondary claims
2.32 Who can make a secondary claim
(1) This Subdivision is made for paragraph 54 (2) (d) of the Act and prescribes the circumstances that are exceptional circumstances in which a secondary claim can be made for a child.
(2) A person who satisfies the circumstances prescribed by this Subdivision can make a secondary claim.
2.33 Exceptional circumstances for secondary claimants — general
(1) The circumstances are as follows:
(a) the person has, and is likely to continue to have, care of the child for at least 26 weeks;
(b) the child was not entrusted to the care of the person, or to the care of the person’s partner, under a decision by a State or Territory child protection agency under legislation dealing with child protection in the State or Territory;
(c) if the person is the partner of the primary claimant for the child — the primary claimant is incapable of caring for the child and will be incapable, or is likely to be incapable, of caring for the child for at least 26 weeks;
(d) if the person is not the partner of the primary claimant for the child — the person is covered by subrule (2).
(2) For paragraph (1) (d), a person is covered by this subrule if any of the following apply:
(a) the primary claimant and the primary claimant’s partner are incapable of caring for the child and are likely to be incapable of caring for the child for at least 26 weeks;
(b) the Secretary is satisfied on reasonable grounds that:
(i) the person became the primary carer of the child in special circumstances; and
(ii) it would be unreasonable for the primary claimant or the primary claimant’s partner to care for the child; and
(iii) it is in the interests of the child for the person to care for the child.
Note For what is unreasonable and in the interests of the child, see rule 2.34.
2.34 Unreasonableness and interests of child
(1) For subparagraph 2.33 (2) (b) (ii), it is unreasonable for a person to care for the child if the Secretary is satisfied that:
(a) there has been extreme family breakdown, or similar circumstances, in relation to the child’s family situation; or
(b) there is a serious risk to the child’s physical or mental wellbeing from violence, neglect or sexual abuse in the child’s family situation.
(2) For subparagraph 2.33 (2) (b) (iii), in considering what is in the interests of the child, the Secretary is to consider the arrangements for the child’s care with the person in comparison with the arrangements for the child’s care in the child’s previous family situation.
Example
The Secretary may consider that it is in the interests of the child for the person to care for the child if the primary claimant refuses to provide any care for the child or because the child is severely disabled and the primary claimant is incapable of providing for the child’s needs.
Subdivision 2.4.1.3 Exceptional circumstances for tertiary claims
2.35 Who can make a tertiary claim
(1) This Subdivision is made for subsection 54 (3) of the Act and prescribes the circumstances that are exceptional circumstances in which a tertiary claim can be made for a child.
(2) A person who satisfies the circumstances prescribed by this Subdivision can make a tertiary claim.
2.36 Exceptional circumstances for tertiary claimants — general
(1) The circumstances are as follows:
(a) the person has, and is likely to continue to have, care of the child for at least 26 weeks;
(b) the child was not entrusted to the care of the person, or to the care of the person’s partner, under a decision by a State or Territory child protection agency under legislation dealing with child protection in the State or Territory;
(c) if the person has previously been the primary claimant for the child — either:
(i) the secondary claimant had care of the child in exceptional circumstances and those circumstances have ceased to apply; or
(ii) the secondary claimant is incapable of caring for the child and is likely to be incapable of caring for the child for at least 26 weeks; and
(d) if the person has not previously been the primary claimant for the child — the person is covered by subrule (2).
(2) For paragraph (1) (d), a person is covered by this subrule if any of the following apply:
(a) the primary claimant and the secondary claimant are incapable of caring for the child and are likely to be incapable of caring for the child for at least 26 weeks;
(b) the Secretary is satisfied on reasonable grounds that:
(i) the person became the primary carer of the child in special circumstances; and
(ii) it would be unreasonable for the primary claimant and secondary claimant to care for the child; and
(iii) it is in the interests of the child for the person to care for the child.
Note For what is unreasonable and in the interests of the child, see rule 2.37.
2.37 Unreasonableness and interests of child
(1) For subparagraph 2.36 (2) (b) (ii), it is unreasonable for a person to care for the child if the Secretary is satisfied on reasonable grounds that:
(a) there has been extreme family breakdown, or similar circumstances, in relation to the child’s family situation; or
(b) there is a serious risk to the child’s physical or mental wellbeing from violence, neglect or sexual abuse in the child’s family situation.
(2) For subparagraph 2.36 (2) (b) (iii), in considering what is in the interests of the child, the Secretary is to consider the arrangements for the child’s care with the person in comparison with the arrangements for the child’s care in the child’s previous family situation.
Note: Example
Note: The Secretary may consider that it is in the interests of the child for the person to care for the child if the primary claimant or secondary claimant refuse to provide any care for the child or because the child is severely disabled and neither the primary claimant nor the secondary claimant is able to provide for the child’s needs.
Division 2.4.2—Determining a claim to have different flexible PPL days
2.40 Determining a claim to have different flexible PPL days
Each item of the following table prescribes: (a) for the purposes of paragraph 57A(4)(b) of the Act, circumstances in which one or more days (the eligible days) specified in a person’s claim for parental leave pay as flexible PPL days for a child may be taken to be one or more other days (the actual days); and (b) for those circumstances, the requirements for determining under subsection 57A(4) of the Act that the claim is taken to have specified the actual days as flexible PPL days for the child.
<table cellspacing="0" cellpadding="0" style="margin-left:0.25pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:404.8pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Determining a claim to have different flexible PPL days</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:201.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Circumstances:</span></p></td><td style="width:156.95pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Requirements:</span></p></td></tr></thead><tbody><tr><td style="width:24.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext0"><span>1</span></p></td><td style="width:201.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) the person has a continuous PPL period for the child under subsection</span><span> </span><span>6A(3) of the Act that includes the eligible days; and</span></p><p class="Tablea"><span>(b) the person’s PPL period for the child is later found to be different from the person’s expected PPL period for the child</span></p></td><td style="width:156.95pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext0"><span>the actual days are to be determined:</span></p><p class="Tablea"><span>(a) by reference to the end of that PPL period rather than the end of that expected PPL period; and</span></p><p class="Tablea"><span>(b) so that they will be included in the person’s continuous PPL period for the child under subsection</span><span> </span><span>6A(1) of the Act</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext0"><span>2</span></p></td><td style="width:201.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) the circumstances in item</span><span> </span><span>1 do not apply; and</span></p><p class="Tablea"><span>(b) the eligible days are consecutive week days; and</span></p><p class="Tablea"><span>(c) the first of the eligible days is the first week day that occurs after the end of the period (the </span><span style="font-weight:bold; font-style:italic">anticipated PPL period</span><span>) that:</span></p><p class="Tablei"><span>(i) starts on the primary claimant’s nominated start date; and</span></p><p class="Tablei"><span>(ii) is stated in the claim as the period the person anticipates will be the person’s PPL period for the child; and</span></p><p class="Tablea"><span>(d) the person’s PPL period for the child is later found to be different from that anticipated PPL period</span></p></td><td style="width:156.95pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext0"><span>the actual days are to be determined by reference to the end of that PPL period rather than the end of that anticipated PPL period</span></p><p class="Tabletext0"><span></span></p></td></tr></tbody></table>
Note 1: Item 1 can only apply if the claim is made before the child’s birth. Item 2 can apply if the claim is made after the child’s birth.
Note 2: The eligible days need not be all of the days specified as flexible PPL days in the person’s claim.
Part 3‑2 Payment of instalments by employer
3.1 Definitions
In this Part:
PPL payment has the meaning given by rule 3.2.
3.2 Information required
For section 80 of the Act, the information that an employer must give to a person after paying 1 or more instalments (the PPL payment) to the person on a day is as follows:
(a) the employer’s name;
(b) the employer’s ABN;
(c) the person’s name;
(d) the period to which the PPL payment applies;
(e) the date on which the PPL payment was paid;
(f) if no other payments are made by the employer to the person for the period:
(i) the gross amount of the PPL payment and a statement identifying the PPL payment as parental leave pay; and
(ii) the net amount of the PPL payment; and
(iii) the amount of income tax withheld from the PPL payment;
(g) if other payments in addition to the PPL payment are made by the employer to the person for the period:
(i) the gross amount of the PPL payment and a statement identifying the PPL payment as parental leave pay; and
(ii) the total net amount paid to the person for the period; and
(iii) the total amount of income tax withheld for the period;
(h) if a deduction from the PPL payment is made under section 67 or 69 of the Act:
(i) the amount of each deduction; and
(ii) the name of the entity to whom the amount deducted is paid; and
(iii) the bank account details into which the amount deducted is paid.
3.3 Form of information
For section 80 of the Act, the information prescribed by rule 3.2 must be:
(a) in the form of a payslip or a separate written advice; and
(b) either:
(i) in electronic form; or
(ii) in hard copy.
3.4 Records to be made and kept
(1) For subsection 81 (1) of the Act, the kind of record that an employer must make and keep in relation to each person for whom an employer determination for the employer comes into force is a record that specifies:
(a) a PPL funding amount received by the employer for the person and:
(i) the PPL days (within the meaning of paragraph 63(3)(a) of the Act) for which the PPL funding amount was paid; or
(ii) the flexible PPL days for which the PPL funding amount was paid; and
(b) the date of each PPL payment paid to the person and the period to which the PPL payment applies; and
(c) the gross amount of each PPL payment paid for the person and a statement identifying the PPL payment as parental leave pay; and
(d) if no other payments are made by the employer to the person for the period:
(i) the net amount of the PPL payment; and
(ii) the amount of income tax withheld from the PPL payment; and
(e) if other payments in addition to the PPL payment are made by the employer to the person for the period:
(i) the total net amount paid to the person for the period; and
(ii) the total amount of income tax withheld for the period; and
(f) the total amount deducted under section 67 and 69 of the Act from each PPL payment paid for the person.
(2) For subsection 81 (2) of the Act, the record must be:
(a) in the English language; and
(b) legible; and
(c) in a form that is readily accessible by a person exercising compliance powers in accordance with the Act.
Part 3‑3 Payment of instalments by Secretary
3.5 Record of payment
(1) This rule applies if the Secretary pays 1 or more instalments (the PPL payment) to, or in relation to, a person on a day, in the circumstances mentioned in sections 84, 85, 86 or 87 of the Act.
(2) For section 89 of the Act, the Secretary must give the person the following information in connection with the PPL payment:
(a) information that the payment:
(i) is paid by the Secretary; and
(ii) is a PPL payment;
(b) the name of the person to whom the PPL payment is paid;
(c) the period to which the PPL payment applies;
(d) the period for which a final PPL payment is expected to be paid;
(e) the frequency with which further PPL payments will be paid;
(f) the date on which the PPL payment is paid;
(g) the gross amount of the PPL payment;
(h) the net amount of the PPL payment;
(i) the total amount of income tax withheld from the gross amount of the PPL payment;
(j) if a deduction from the PPL payment is made under section 67 or 69 of the Act:
(i) the amount of each deduction; and
(ii) the name of the entity to whom the amount deducted is paid; and
(iii) the bank account details into which the amount deducted is paid;
(k) if a deduction from the PPL payment is made under section 69A or 69B of the Act—the amount of each deduction.
(3) The information is required to be given to the person:
(a) only once; and
(b) at the time the first PPL payment is made to the person.
Part 3A‑2 Determinations about whether dad and partner pay is payable to a person
Division 3A.2.1 Dad and partner pay is already payable to the person etc.
3A.1 Dad and partner pay is already payable to the person etc.
(1) This Division is made for subsection 115BF(2) of the Act and prescribes the circumstances in which a payability determination that dad and partner pay is payable to a person for a child may be made in respect of a different claim made by another person for the child.
(2) A person who satisfies the circumstances in this Division may be paid dad and partner pay, despite a first person already having received the payment.
(3) For a person to whom this rule applies, the circumstances are that the person:
(a) is an adoptive parent of the child;
(b) is the partner of an adoptive parent of the child in circumstances prescribed under rule 3A.13;
(c) is the partner of a child’s primary carer in circumstances prescribed under rule 3A.11;
(d) has care of the child as the birth mother has relinquished care of the child because of a surrogacy arrangement under rule 3A.14.
Part 3A‑3 Eligibility for dad and partner pay
Division 3A.3.1 When a DAPP claimant is eligible for dad and partner pay
Subdivision 3A.3.1.1 When a DAPP claimant is eligible for dad and partner pay
3A.2 When a DAPP claimant is eligible for dad and partner pay
This Subdivision is made for paragraph 115CB(4)(d) of the Act and prescribes the conditions that a person who is a DAPP claimant must satisfy to be eligible for dad and partner pay for a child.
Note Under subsection 115CB(4) of the Act, a DAPP claimant must satisfy the work test, the income test and the Australian residency test in addition to the conditions prescribed by this Subdivision.
3A.3 Conditions ‑ DAPP claimants
(1) The conditions are that:
(a) the person:
(i) is caring for the child, or
(ii) satisfies the requirements of rule 3A.4 or rule 3A.5; and
(b) subject or subrule (1A), the person is not working.
(1A) For the purposes of subparagraph 3A.3(1)(b), disregard a person working in any of the following circumstances:
(a) if the person satisfies rule 3A.6 – a person working on a day referred to in paragraph 3A.6(b);
(b) if the person satisfies rule 3A.7 – a person working on a day referred to in rule 3A.7;
(c) if the person satisfies rule 3A.7A – a person working on a day referred to in rule 3A.7A.
3A.4 Care requirements for DAPP claimants – temporary inability to care
For subparagraph 3A.3(1)(a)(ii), the requirements are as follows:
(a) the person will be, or previously was, caring for the child;
(b) the person is temporarily unable to be caring for the child due to circumstances beyond the person’s control, other than a circumstance mentioned in paragraph 3A.5(b);
(c) the period of temporary inability is likely to be less than two weeks;
(d) there is no determination in force under the Act that dad and partner pay is payable for the child to another person for the same day;
(e) the Secretary is satisfied that the person would have been caring for the child except for the person’s temporary inability to be the child’s carer.
3A.5 Care requirements for DAPP claimants – loss of care for child
For subparagraph 3A.3(1)(a)(ii), the requirements are that:
(a) the person previously was caring for the child; and
(b) an event occurs in relation to the child without the person’s consent that prevents the child being in the person’s care; and
(c) the person takes reasonable steps to have the child again in the person’s care; and
(d) the person, or the person’s partner, is the child’s legal parent or is otherwise legally responsible for the child; and
(e) if the child is in the care of another legal parent – the person, or the person’s partner, has a court order or a parenting plan to the effect that the child is to live with the person or the person’s partner; and
(f) there is no determination in force under the Act that dad and partner pay is payable for the child to another person for the same day.
3A.6 Work requirements for DAPP claimants – recall to duty
For paragraph 3A.3(1A)(a), the requirements are that the person:
(a) is a defence force member or a law enforcement officer; and
(b) has performed paid work on a day because the person has been compulsorily recalled to duty.
3A.7 Work requirements for DAPP claimants – summons or other compulsory process
For paragraph 3A.3(1A)(b), the requirement is that the person has performed paid work on a day because the person has to comply with the requirements of a summons or other compulsory process to appear to give evidence or information or to produce documents or other things.
3A.7A Work requirements for DAPP claimants – return to work due to state, territory or national emergency
(1) For paragraph 3A.3(1A)(c), the requirements are that the person:
(a) is a health professional, emergency services worker or other essential worker; and
(b) has performed paid work on a day because the person has returned to work in response to a state, territory or national emergency (including in response to the Coronavirus known as COVID‑19).
(2) For the purposes of this rule, a person is an essential worker if the person has specific skills, or is involved in the production of goods or the delivery of services, where the skills, goods or services are essential in responding to an emergency.
Division 3A.3.2 The work test
Subdivision 3A.3.2.1 Not working
3A.8 Purpose
This Subdivision is made for subsection 115CM(2) of the Act and prescribes circumstances in which a DAPP claimant is taken to be not working.
3A.9 What is taken to be not working
(1) A person is taken to be not working if:
(a) the person is on unpaid leave from their employer and during the period of unpaid leave, the person receives workers’ compensation payments or accident compensation payments from another body in relation to the person’s employment with their employer; or
(b) the person receives a top‑up payment from their employer during or in relation to their DAPP period.
(2) For paragraph (1)(b), a top‑up payment means a payment made by an employer to an employee that supplements a person’s dad and partner pay during their DAPP period.
Note The “top‑up payment” may be an adjustment to partial or full income replacement.
Part 3A‑4 Claims for dad and partner pay
Division 3A.4.1 Claims for dad and partner pay
Subdivision 3A.4.1.1 Prescribed circumstances for dad and partner pay claims
3A.10 Who can make a claim for dad and partner pay
(1) This Subdivision is made for paragraph 115DD(d) of the Act and prescribes the circumstances in which a claim for dad and partner pay for a child can be made.
(2) A person who satisfies the circumstances prescribed by this Subdivision
can make a claim for dad and partner pay.
3A.11 Prescribed circumstances – partner of a child’s primary carer when care arrangements change
(1) This rule applies to a person who is the partner of a child’s primary carer.
(2) For a person to whom this rule applies, the circumstances are that the person:
(a) has, and is likely to continue to have, care of the child for at least
26 weeks; and
(b) became, or will become, a carer of the child;
(i) before the child’s first birthday; or
(ii) for an adopted child – before the first anniversary of the day of placement of the child; and
(c) is covered by subrule (3).
(3) For paragraph (2)(c), a person is covered by this subrule if:
(a) the birth mother and their partner, or the adoptive parent and their partner is incapable of caring for the child and will be incapable, or is likely to be incapable, of caring for the child for at least 26 weeks;
(b) the Secretary is satisfied on reasonable grounds that:
(i) the person became the carer of the child in special circumstances; and
(ii) it would be unreasonable for the birth mother and their partner, or the adoptive parent and their partner to care for the child; and
(iii) it is in the interests of the child for the person to care for the child;
(c) the child was not entrusted to the care of the person, or to the care of the person’s partner, under a decision by a State or Territory child protection agency under legislation dealing with child protection in the State or Territory.
Note For the meaning of incapable of caring for a child, see rule 1.4.
For what is unreasonable and in the interests of the child, see rule 2.31.
(4) This rule does not apply to circumstances to which rule 3A.14 applies.
3A.12 Prescribed circumstance – partner of the biological father of the child
(1) This rule applies to a person who is the partner of the biological father of the child.
(2) For a person to whom this rule applies, the circumstances are that:
(a) the birth mother is no longer caring for the child;
(b) the person mentioned in subrule (1) has, and is likely to continue to have, care of the child for at least 26 weeks.
(3) For subrule (2), no longer caring means that the birth mother is not caring for the child for at least 26 weeks.
3A.13 Prescribed circumstance – partner of an adoptive parent of the child
(1) This rule applies to a person who is the partner of an adoptive parent of the child.
(2) For a person to whom this rule applies, the circumstances are that:
(a) the birth mother has relinquished care of the child;
(b) the person mentioned in subrule (1) has, and is likely to continue to have, care of the child for at least 26 weeks.
3A.14 Prescribed circumstance – surrogacy arrangements
(1) This rule applies to a person who is caring for a child born of a surrogacy arrangement.
(2) For a person to whom this rules applies, the circumstances are that the person:
(a) has, and is likely to continue to have, care of the child for at least 26 weeks; and
(b) became or will become, the child’s carer before the child’s first birthday; and
(c) satisfies the circumstances mentioned in subrule 3A.14(3).
(3) A person is covered by this subrule if the Secretary is satisfied on
reasonable grounds that:
(a) the person is caring for a child born of a surrogacy arrangement; and;
(b) it is in the interests of the child for the person to care for the child.
(4) For paragraph 3A.14(3)(b), in considering what is in the interests of the child, the Secretary is to consider:
(a) whether the person intends to be the long‑term carer of the child;
(b) whether the surrogate birth mother has relinquished care of the child;
(c) any other matter that the Secretary considers relevant to a proper consideration of what is in the interests of the child.
Part 3‑4 Payment of dad and partner pay by Secretary
3A.15 Record of payment
(1) This rule is made for section 115EE of the Act and prescribes the information that the Secretary must give a person who has been paid dad and partner pay.
(2) The Secretary must give the person the following information in
connection with the dad and partner pay payment:
(a) information that the payment:
(i) is paid by the Secretary; and
(ii) is a dad and partner pay payment;
(b) the name of the person to whom the dad and partner pay payment is paid;
(c) the period to which the dad and partner pay payment applies;
(d) the date on which the dad and partner pay payment is paid;
(e) the gross amount of the dad and partner pay payment;
(f) the net amount of the dad and partner pay payment;
(g) the total amount of income tax withheld from the gross amount of the dad and partner pay payment.
(3) The information is required to be given to the person:
(a) only once; and
(b) at the time the dad and partner pay payment is given to the person or as soon as possible after that date.
Part 4‑1 Information gathering
Division 4.1.1 General
4.1 Purpose
This Part is made for subsection 128 (4) of the Act and sets out guidelines for the exercise of the Secretary’s power to give certificates for the purposes of paragraph 128 (1) (a) of the Act.
4.2 Definitions
(1) In this Part:
Department means the department that administers the Act.
family assistance law means any 1 or more of the following:
(a) the A New Tax System (Family Assistance) (Administration) Act 1999;
(b) the A New Tax System (Family Assistance) Act 1999;
(c) regulations under the A New Tax System (Family Assistance) (Administration) Act 1999;
(d) Schedules 5 and 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000.
Human Services Department means the Department administered by the Human Services Minister.
Minister means:
(a) the Minister administering the Act; or
(b) a Minister of State administering any part of:
(i) the social security law; or
(ii) the family assistance law; or
(iii) the Human Services (Centrelink) Act 1997; or
(c) the Prime Minister; or
(d) the Minister administering the Fair Work Act 2009; or
(e) the Minister administering the Human Services (Medicare) Act 1973.
public interest certificate means a certificate, under paragraph 128 (1) (a) of the Act, for the disclosure of relevant information.
relevant information means information acquired by an officer in the exercise of the officer’s powers, or the performance of the officer’s duties or functions, under the Act.
(2) In subrule (1), a reference to the social security law is a reference to:
(a) the Social Security Act 1991; and
(b) the Social Security (Administration) Act 1999; and
(c) any other Act that is expressed to form part of the social security law.
Division 4.1.2 Guidelines — public interest certificate
4.3 Matters to which Secretary must have regard
In giving a public interest certificate, the Secretary must have regard to:
(a) any situation in which the person to whom the information relates is, or may be, subject to physical, psychological or emotional abuse; and
(b) whether the person in such a situation may be unable to give notice of his or her circumstances because of:
(i) age; or
(ii) disability; or
(iii) social, cultural, family or other reasons.
4.4 When public interest certificate may be given
(1) The Secretary may give a public interest certificate for the disclosure of relevant information under this Part if:
(a) the information cannot reasonably be obtained from a source other than the Department; and
(b) the person to whom the information will be disclosed has sufficient interest in the information; and
(c) the Secretary is satisfied that the disclosure is for the purpose of rule 4.5, 4.6, 4.6A, 4.7, 4.8, 4.9, 4.11, 4.12, 4.13, 4.14, 4.15 or subrule 4.10 (1) or (2).
(2) A person has sufficient interest in the relevant information if:
(a) the Secretary is satisfied that, in relation to the purpose of the disclosure, the person has a genuine and legitimate interest in the information; or
(b) the person is a Minister.
4.5 Threat to life, health or safety
Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary to prevent, or lessen, a serious threat to the life, health or safety of an individual.
4.6 Enforcement of laws
(1) Relevant information may be disclosed for the purpose of this rule if:
(a) the disclosure is necessary:
(i) for the enforcement of a criminal law that relates to an indictable offence punishable by imprisonment of 2 years or more; or
(ii) for the enforcement of a law imposing a pecuniary penalty equivalent to 40 penalty units or more; or
(iii) to prevent an act that may have a significant adverse effect on the public revenue; or
(b) the disclosure relates to an offence or threatened offence:
(i) against a Commonwealth employee; or
(ii) against Commonwealth property; or
(iii) in Department premises; or
(iv) in Human Services Department premises.
(2) In this rule:
criminal law means:
(a) for Australia — a criminal law of the Commonwealth or of a State or Territory; and
(b) for a place outside Australia — a criminal law that may be recognised under an extradition arrangement to which Australia is a party.
penalty unit has the same meaning as in section 4AA of the Crimes Act 1914.
Note Subsection 4AA (1) of the Crimes Act 1914 provides that a penalty unit is $110.
4.6A Proceeds of crime order
(1) Relevant information may be disclosed to a Commonwealth, State or Territory law enforcement agency for the purpose of this rule if the disclosure is necessary for:
(a) the making, or proposed or possible making, of a proceeds of crime order; or
(b) supporting or enforcing a proceeds of crime order.
(2) In this rule proceeds of crime order means:
(a) an order under:
(i) Chapter 2 (the confiscation scheme) or Division 1, Part 3‑1 of Chapter 3 (examination orders) of the Proceeds of Crime Act 2002; or
(ii) Part II (confiscation) or III (control of property liable to confiscation) of the Proceeds of Crime Act 1987; or
(iii) a State law or Territory law corresponding to a law referred to in subparagraph (i) or (ii); or
(iv) Division 3 of Part XIII (recovery of pecuniary penalties for dealings in narcotic goods) of the Customs Act 1901; or
(b) an unexplained wealth order (within the meaning of the Proceeds of Crime Act 2002); or
(c) a court order (including a declaration or direction):
(i) under a State law or Territory law; and
(ii) relating to unexplained wealth.
4.7 Mistake of fact
Relevant information may be disclosed for the purpose of this rule if:
(a) the disclosure is necessary to correct a mistake of fact in relation to the administration of a program of the Department; and
(b) either:
(i) the integrity of the program will be at risk if the mistake of fact is not corrected; or
(ii) the mistake of fact relates to a matter that was, or will be, published (whether by, or with or without the consent of, the person to whom the information relates).
4.8 Ministerial briefing
Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary:
(a) to brief a Minister so that the Minister can consider complaints or issues raised by or on behalf of a person with the Minister (in writing or orally), and respond to that person in relation to the complaints or issues; or
(b) to brief a Minister for a meeting or forum that the Minister is to attend; or
(c) to brief a Minister in relation to issues raised or proposed to be raised publicly by or on behalf of the person to whom the relevant information relates so that the Minister can respond by correcting a mistake of fact, a misleading perception or impression, or a misleading statement; or
(d) to brief a Minister about an error or delay on the part of the Human Services Department or the Fair Work Ombudsman; or
(e) to brief a Minister about an instance of an anomalous or unusual operation of the Act or the Fair Work Act 2009.
4.9 Missing person
Relevant information may be disclosed to a court, coronial inquiry, Royal Commission, department or any other authority of the Commonwealth or a State or Territory, for the purpose of this rule if:
(a) the information is about a reported missing person; and
(b) the disclosure is necessary:
(i) to assist the court, coronial inquiry, Royal Commission, department or authority of the Commonwealth or a State or Territory, in relation to the whereabouts of the missing person; or
(ii) to locate a person (including the missing person); and
(c) there is no reasonable ground to believe that the missing person would not want the information disclosed.
4.10 Deceased person
(1) Relevant information may be disclosed for the purpose of this subrule if:
(a) the information is about a deceased person; and
(b) the disclosure:
(i) is necessary to assist a court, coronial inquiry, Royal Commission, department, or any other authority of the Commonwealth or a State or Territory, in relation to the death of the person; or
(ii) is necessary to help a person locate a relative or beneficiary of the deceased person; or
(iii) is necessary to help an individual or authority responsible for the administration of the estate of the deceased person in relation to the administration of the estate of the deceased person; and
(c) there is no reasonable ground to believe that the deceased person would not have wanted the relevant information disclosed.
(2) Relevant information may be disclosed for the purpose of this subrule if the information is to establish:
(a) the death of a person; or
(b) the place where the death of a person is registered.
4.11 Research, statistical analysis and policy development
Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary for the purpose of:
(a) research into (including evaluation or monitoring of, or reporting on) matters of relevance to a department that is administering any part of:
(i) the Act; or
(ii) the family assistance law; or
(iii) the social security law; or
(b) statistical analysis of those matters; or
(c) policy development.
4.12 Operation of the Family Responsibilities Commission
(1) Relevant information may be disclosed for the purpose of this rule if the disclosure is necessary to assist in the performance of the functions, or the exercise of the powers, of the Family Responsibilities Commission.
(2) In this rule:
Family Responsibilities Commission means the Commission established by section 9 of the Family Responsibilities Commission Act 2008 (Qld).
4.13 Reparations
Relevant information may be disclosed to a department or any other authority of the Commonwealth or a State or Territory for the purpose of this rule if the disclosure is necessary for the purpose of contacting the person in respect of their possible entitlement to compensation or other form of recompense in a reparation process.
4.14 Child protection agencies
(1) Relevant information may be disclosed to a Child Protection agency of a State or Territory for the purpose of this rule if the disclosure is necessary for the purpose of contacting the parent or relative in relation to the child.
(2) In this rule:
Child Protection agency means a government agency that carries out child protection functions.
4.15 Public Housing Administration
Relevant information may be disclosed to a department or any other authority of a State or Territory or an agent or contracted service provider of a department or authority for the purpose of this rule if:
(a) the information is about a resident, an applicant to become a tenant, or a tenant of public housing or other State or Territory managed housing; and
(b) the disclosure is necessary to facilitate rent calculation or rent deduction in relation to public housing, or State or Territory managed housing; or
(c) the disclosure is necessary to facilitate the administration of an income confirmation service in relation to public housing or State or Territory managed housing to avoid mistakes, underpayments and overpayments of rent, pensions, benefits and allowances; or
(d) the disclosure is necessary to investigate or take enforcement action in relation to public housing or State or Territory managed housing including to assist with an investigation into either:
(i) the misreporting of income by tenants of public housing or State or Territory managed housing; or
(ii) the unauthorised occupation of public housing or State or Territory managed housing by any person.
Part 4‑3 Debt recovery
Division 4.3.1 Debt notices and interest on debts
4.16 Penalty interest rate
For subsection 180 (2) of the Act, the penalty interest rate is 3% per year.
Division 4.3.2 Penalty interest guidelines
4.17 Purpose of Division
For subsection 180 (3) of the Act, this Division prescribes guidelines for the operation of the provisions of the Act dealing with penalty interest.
4.18 Arrangement entered into after final debt payment day
(1) This rule applies to a person who is liable to pay interest on the outstanding amount of a debt under subsection 175 (4) of the Act.
(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person if, after the final debt payment day, the person:
(a) has entered into an arrangement under section 190 of the Act to pay the outstanding amount of the debt; and
(b) is making payments in accordance with the arrangement.
(3) If the Secretary makes a determination in the circumstance mentioned in subrule (2), the Secretary should:
(a) determine that interest is not payable on and after the day when the first payment made in accordance with the arrangement is received by, or on behalf of, the Commonwealth Services Delivery Agency; and
(b) specify, as a condition of the determination, that the person must continue to make payments in accordance with the arrangement.
(4) In this rule:
final debt payment day has the meaning given by subsection 175 (2) of the Act.
4.19 Payments resumed in accordance with existing arrangement or new arrangement entered into after failure day
(1) This rule applies to a person who is liable to pay interest on the outstanding amount of a debt under subsection 175 (6) of the Act.
(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person if, after the failure day:
(a) the person has resumed making payments in accordance with the arrangement mentioned in subsection 175 (5) (the existing arrangement); or
(b) the person:
(i) has entered into a new arrangement under section 190 of the Act (the new arrangement) to pay the outstanding amount of the debt; and
(ii) is making payments in accordance with the new arrangement.
(3) If the Secretary makes a determination in the circumstance mentioned in paragraph (2) (a), the Secretary should:
(a) determine that interest is not payable on and after:
(i) the day when the first payment made in accordance with the existing arrangement, after the failure day, is received by, or on behalf of, the Commonwealth Services Delivery Agency; or
(ii) if that day occurs before the liability day — the liability day; and
(b) specify, as a condition of the determination, that the person must continue to make payments in accordance with the existing arrangement.
(4) If the Secretary makes a determination in the circumstance mentioned in paragraph (2) (b), the Secretary should:
(a) determine that interest is not payable on and after:
(i) the day when the first payment made in accordance with the new arrangement is received by, or on behalf of, the Commonwealth Services Delivery Agency; or
(ii) if that day occurs before the liability day — the liability day; and
(b) specify, as a condition of the determination, that the person must continue to make payments in accordance with the new arrangement.
(5) In this rule:
failure day, for a person to whom subsection 175 (6) of the Act applies, means the day when the person failed to make the payment mentioned in paragraph 175 (5) (b) of the Act.
liability day, in relation to a person’s liability to pay interest on the outstanding amount of a debt under subsection 175 (6) of the Act, means the day mentioned in paragraph 175 (6) (a) or (b) of the Act from and including which the person is liable to pay interest on the outstanding amount.
4.20 Garnishee notice issued in respect of debt
(1) This rule applies to a person (the debtor) who is liable to pay interest on the outstanding amount of a debt under subsection 175 (4) or (6) of the Act.
(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person for a period if a notice (the garnishee notice) has been given to another person under subsection 184 (1) of the Act requiring the other person to pay to the Commonwealth an amount under paragraph 184 (2) (b) or (c) of the Act in relation to the debt.
(3) If the Secretary makes a determination in the circumstance mentioned in subrule (2), the Secretary should determine that interest is not payable only for the period:
(a) beginning on the day when the person who has been given the garnishee notice becomes liable to pay to the debtor the first payment to which the garnishee notice applies; and
(b) ending at the end of the day when the person who has been given the garnishee notice becomes liable to pay to the debtor the last payment to which the garnishee notice applies.
4.21 No capacity to pay debt
(1) This rule applies to a person who is liable to pay interest on the outstanding amount of a debt under subsection 175 (4) or (6) of the Act.
(2) The Secretary should make a determination under section 178 of the Act that interest is not payable by the person for a period if, during the period, the person had or has no capacity to repay the debt.
Division 4.3.3 Waiver of debts – settlement of civil actions
4.22 Settlement interest
For the definition of settlement interest in subsection 198 (6) of the Act, the prescribed annual rate of interest is 5%.
Part 6‑3 Extension of Act to persons who are not employees and employers
Division 6.3.1 Extension of Act to law enforcement officers — specified States and Territories
6.1 Application of Division 6.3.1
This Division applies in relation to the following States and Territories:
(a) New South Wales;
(b) Victoria;
(c) Western Australia;
(d) South Australia;
(e) Tasmania;
(f) Northern Territory.
6.2 Definitions for Division 6.3.1
In this Division:
Commissioner of Police, for a specified State or Territory, means the person holding the office of Commissioner of Police (however titled) in relation to the police force of that specified State or Territory.
designated law enforcement officer, in relation to a specified State or Territory, means:
(a) a member of the police force of that State or Territory; or
(b) a person appointed to a position for the purpose of being trained as a member of the police force of that State or Territory; or
(c) a person who has the powers and duties of a member of the police force of that State or Territory;
and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.
specified State or Territory means a State or Territory that is mentioned in rule 6.1.
6.3 Extension of Act to persons who are not employees and employers — law enforcement officers (specified States and Territories)
For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3‑5 of the Act for the Commissioner of Police for a specified State or Territory and a person who is a designated law enforcement officer in relation to that State or Territory.
6.4 Modification of Act — law enforcement officers (specified States and Territories)
For a person who is a designated law enforcement officer in relation to a specified State or Territory, the Act is modified as follows:
(a) the Commissioner of Police for that State or Territory is taken to be the employer of the designated law enforcement officer;
(b) the designated law enforcement officer is taken to be an employee of the Commissioner of Police for that State or Territory (other than for paragraph 49(1)(a) of the Act);
(c) a reference to the employment or engagement of the designated law enforcement officer is taken to be a reference to that officer’s role, functions or duties, however described, as a designated law enforcement officer;
(d) paragraph 101(1)(e) is omitted.
Division 6.3.2 Extension of Act to law enforcement officers — Queensland
6.5 Definitions for Division 6.3.2
In this Division:
Crown means the Crown in right of the State of Queensland.
law enforcement officer of Queensland means:
(a) a member of the police force of Queensland; or
(b) a person appointed to a position for the purpose of being trained as a member of the police force of Queensland; or
(c) a person who has the powers and duties of a member of the police force of Queensland;
and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.
6.6 Extension of Act to persons who are not employees and employers — law enforcement officers (Queensland)
For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3‑5 of the Act for the Crown and a person who is a law enforcement officer of Queensland.
6.7 Modification of Act — law enforcement officers (Queensland)
For a person who is a law enforcement officer of Queensland, the Act is modified as follows:
(a) the Crown is taken to be the employer of a law enforcement officer of Queensland;
(b) a law enforcement officer of Queensland is taken to be an employee of the Crown (other than for paragraph 49(1)(a) of the Act);
(c) a reference to the employment or engagement of a law enforcement officer of Queensland is taken to be a reference to that officer’s role, functions or duties, however described, as a law enforcement officer of Queensland;
(d) paragraph 101(1)(e) is omitted.
Division 6.3.3 Extension of Act to law enforcement officers — Australian Federal Police
6.8 Definitions for Division 6.3.3
In this Division:
Australian Federal Police Commissioner means the Commissioner of the Australian Federal Police within the meaning of the Australian Federal Police Act 1979.
federal law enforcement officer means:
(a) a member of the Australian Federal Police; or
(b) a person appointed to a position for the purpose of being trained as a member of the Australian Federal Police; or
(c) a person who has the powers and duties of a member of the Australian Federal Police;
and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.
6.9 Extension of Act to persons who are not employees and employers — law enforcement officers (Australian Federal Police)
For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3‑5 of the Act for the Australian Federal Police Commissioner and a person who is a federal law enforcement officer.
6.10 Modification of Act — law enforcement officers (Australian Federal Police)
For a person who is a federal law enforcement officer, the Act is modified as follows:
(a) the Australian Federal Police Commissioner is taken to be the employer of a federal law enforcement officer;
(b) a federal law enforcement officer is taken to be an employee of the Australian Federal Police Commissioner (other than for paragraph 49(1)(a) of the Act);
(c) a reference to the employment or engagement of a federal law enforcement officer is taken to be a reference to that officer’s role, functions or duties, however described, as a federal law enforcement officer;
(d) paragraph 101(1)(e) is omitted.
Division 6.3.4 Extension of Act to defence force members
6.11 Definitions for Division 6.3.4
In this Division:
Chief of the Defence Force is a reference to the Chief of the Defence Force appointed under section 9 of the Defence Act 1903.
Defence Force Ombudsman is a reference to the person who holds the office of the Defence Force Ombudsman under the Ombudsman Act 1976.
Fair Work Inspector has the same meaning as in the Fair Work Act 2009.
Fair Work Ombudsman is a reference to the person who holds the office of the Fair Work Ombudsman under the Fair Work Act 2009.
6.12 Extension of Act to persons who are not employees and employers — Defence force members
For subsection 299 (1) of the Act, the Secretary may make an employer determination under Part 3‑5 of the Act for the Chief of the Defence Force and a person who is a defence force member.
6.13 Modification of Act — Defence force members
For a person who is a defence force member, the Act is modified as follows:
(a) the Chief of the Defence Force is taken to be the employer of a defence force member;
(b) a defence force member is taken to be an employee of the Chief of the Defence Force (other than for paragraph 49(1)(a) of the Act);
(c) a reference to the employment or engagement of a defence force member is taken to be a reference to the service of a member of the defence force;
(d) the Fair Work Ombudsman is taken to be a reference to the Defence Force Ombudsman;
(e) the Fair Work Inspector is taken to be a reference to the Defence Force Ombudsman;
(f) paragraph 101(1)(e) is omitted.
Part 7—Application, saving and transitional provisions
7.1 Paid Parental Leave Amendment (Flexibility Measures) Rules 2020
The amendments of this instrument made by the Paid Parental Leave Amendment (Flexibility Measures) Rules 2020 apply in relation to a claim for parental leave pay for a child if: (a) the claim is made on or after 1 July 2020; and (b) the child is born on or after 1 July 2020.