Commonwealth Consolidated Acts

FAMILY AND COMMUNITY SERVICES AND VETERANS' AFFAIRS LEGISLATION AMENDMENT (2004 ELECTION COMMITMENTS) ACT 2004 - SCHEDULE 4

A New Tax System (Family Assistance) Act 1999

1   Subsection 3(1) ( paragraph   ( b) of the definition of receiving )

After "social security benefit in", insert "sections   50S and 50T of the Family Assistance Administration Act and".

2   Subsection 3(1) ( paragraph   ( c) of the definition of receiving )

After "social security benefit in", insert "sections   50S and 50T of the Family Assistance Administration Act and".

3   Subsection 69(1)

Omit "and C", substitute ", C and CA".

4   Subsection 69(2)

After "Subdivision C", insert "or CA".

5   After subsection 69(4)

Insert:

  (4A)   Subdivision CA deals with the rate of fee reduction, and child care benefit by fee reduction, applicable in respect of a session of care provided by an approved child care service to a child if:

  (a)   a determination of conditional eligibility is in force in respect of an individual with the effect that the individual is conditionally eligible for child care benefit by fee reduction in respect of the child; and

  (b)   a determination is in force under subsection 50T(1) of the Family Assistance Administration Act with the effect that the individual is eligible for the special grandparent rate for the child.

6   Paragraph 73(1)(a)

Omit "or (c)", substitute ", (c) or (d)".

7   Paragraph 73(1)(a)

After "hardship", insert "and special grandparent rate does not apply".

8   At the end of subsection 73(1)

Add:

  ; or (d)   if a determination under subsection 50T(1) of the Family Assistance Administration Act with the effect that the individual is eligible for the special grandparent rate for the child is in force when the session of care is provided to the child--worked out under Subdivision CA.

9   Paragraph 73(2)(a)

Omit "or (c)", substitute ", (c) or (d)".

10   Paragraph 73(2)(a)

After "hardship", insert "and special grandparent rate does not apply".

11   At the end of subsection 73(2)

Add:

  ; or (d)   if a determination under subsection 50T(1) of the Family Assistance Administration Act with the effect that the individual is eligible for the special grandparent rate for the child is in force when the session of care is provided to the child--worked out under Subdivision CA.

12   Subsection 73(3)

Omit "or (c)", substitute ", (c) or (d)".

13   After Subdivision C of Division   4 of Part   4

Insert:

Subdivision CA -- Special grandparent rate

82A   Special grandparent rate

    If a determination is in force under subsection 50T(1) of the Family Assistance Administration Act with the effect that an individual is eligible for the special grandparent rate for the child in respect of a session of care provided to the child by an approved child care service, the individual's hourly rate of fee reductions, and of child care benefit by fee reduction, for the session is equal to 100% of the hourly rate charged by the service for the session.

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

14   After paragraph 49C(2)(c)

Insert:

  (ca)   information needed by the Secretary to determine the claimant's eligibility for the special grandparent rate in respect of the child;

15   At the end of section   50C

Add:

Note:   Section   50T also requires the Secretary to determine, in certain circumstances, whether or not the claimant is eligible for the special grandparent rate.

16   After Subdivision C of Division   4 of Part   3

Insert:

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

50Q   Determination of eligibility for special grandparent rate

    This Subdivision deals with the determination of eligibility for the special grandparent rate that the Secretary must make in certain circumstances if an individual (the claimant ) is determined to be conditionally eligible for child care benefit by fee reduction in respect of a child.

Note:   Section   50T tells you when the Secretary must determine the claimant's eligibility for the special rate. Section   50S tells you the criteria that must be satisfied for the claimant to be eligible for that rate. Section   50R explains who counts as a grandparent or great - grandparent for the purposes of this Subdivision.

50R   Grandparents and great - grandparents

  (1)   In determining, for the purposes of this Subdivision, whether an individual is a grandparent or great - grandparent of another person, treat the following relationships as if they were biological child - parent relationships:

  (a)   the relationship between an adopted child and his or her adoptive parent;

  (b)   the relationship between a step - child and his or her step - parent.

  (2)   In subsection   ( 1):

"adoptive parent" , of a person (the child ), means the person who adopted the child under a law of any place (whether in Australia or not) relating to the adoption of children.

"step-parent" , of a person (the child ), means the person who:

  (a)   is the current or former partner of the biological or adoptive parent of the child; and

  (b)   is not the biological or adoptive parent of the child.

50S   Eligibility for special grandparent rate

  (1)   An individual is eligible for the special grandparent rate for a child if:

  (a)   the individual, or the individual's partner, is receiving:

  (i)   a social security pension; or

  (ii)   a social security benefit; or

  (iii)   a service pension; or

  (iv)   an income support supplement under Part   IIIA of the Veterans' Entitlements Act 1986 ; and

  (b)   the individual, or the individual's partner, is the grandparent or great - grandparent of the child; and

  (c)   the individual, or the individual's partner, is the principal carer of the child.

  (2)   For the purposes of subsection   ( 1), a person is the principal carer of another person (the child ) if the person:

  (a)   is the sole or major provider of ongoing daily care for the child; and

  (b)   has substantial autonomy for the day - to - day decisions about the child's care, welfare and development.

  (3)   An individual is also eligible for the special grandparent rate for a child if the individual, or the individual's partner, is eligible under subsection   ( 1) for the special grandparent rate for another child.

50T   Secretary must determine claimant's eligibility for special grandparent rate in certain circumstances

When Secretary must determine whether claimant eligible for special grandparent rate

  (1)   If subsection   ( 2), (3) or (4) is satisfied, the Secretary must determine whether or not the claimant is eligible for the special grandparent rate for a child.

Request for special grandparent rate determination made in claim for determination of conditional eligibility

  (2)   This subsection is satisfied if:

  (a)   the claimant:

  (i)   makes a claim (whether before or after 1   January 2005) for payment of child care benefit by fee reduction for care provided by an approved child care service to the child; and

  (ii)   informs the Secretary, in the form and manner (if any) required by the Secretary, in or in connection with the claim that the claimant wants the Secretary to make a determination under this section in relation to the claimant and the child; and

  (b)   in response to the claim, the Secretary makes, on or after 1   January 2005, a determination under section   50F with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.

Application for special grandparent rate determination after determination of conditional eligibility made

  (3)   This subsection is satisfied if:

  (a)   a determination under section   50F (whether made before or after 1   January 2005) is in force with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child; and

  (b)   the claimant applies, in the form and manner (if any) required by the Secretary, for a determination under this section in relation to the child.

Transitional situation

  (4)   This subsection is satisfied if, immediately before 1   January 2005:

  (a)   a determination is in force under section   50F that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child; and

  (b)   the determination in force under section   50H of the weekly limit of hours applicable to the claimant and the child is based on the claimant, or the claimant's partner, being taken to satisfy the work/training/study test because of the determination that was made under subsection 14(2) of the Family Assistance Act on 28   October 2004; and

  (c)   the claimant, or the claimant's partner, is receiving:

  (i)   a social security pension; or

  (ii)   a social security benefit; or

  (iii)   a service pension; or

  (iv)   an income support supplement under Part   IIIA of the Veterans' Entitlements Act 1986 .

Determinations not legislative instruments

  (5)   A determination made under subsection   ( 1), or a variation of such a determination, is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

50U   Criteria for making determination

    The Secretary must determine under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child if:

  (a)   a determination under section   50F with the effect that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child is in force; and

  (b)   the Secretary is satisfied that the claimant is eligible for the special grandparent rate for the child (see section   50S).

Otherwise the Secretary must determine that the claimant is not eligible for the special grandparent rate for the child.

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

  (1)   The Secretary must give notice of a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child to:

  (a)   the claimant; and

  (b)   the approved child care service, or services, that are, or will be, providing care to the child.

  (2)   The notice must state:

  (a)   the names of the claimant and the child; and

  (b)   that the claimant is eligible for the special grandparent rate for the child; and

  (c)   the date from which the determination comes into force; and

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

  (3)   The determination is not ineffective by reason only that any, or all, of the requirements of subsections   ( 1) and (2) are not complied with.

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

  (1)   The Secretary must give notice of a determination under subsection 50T(1) that the claimant is not eligible for the special grandparent rate for a child to the claimant.

  (2)   The notice must state:

  (a)   that the claimant is not eligible for the special grandparent rate for the child; and

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

  (3)   The determination is not ineffective by reason only that any, or all, of the requirements of subsections   ( 1) and (2) are not complied with.

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

  (1)   Subject to subsection   ( 4), a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child comes into force:

  (a)   if no day is specified in the notice of determination--on the day the determination is made; or

  (b)   on the day specified in the notice of determination.

  (2)   The Secretary may specify a day, not more than 4 weeks before the day on which the claimant made the claim or application in response to which the determination was made by the Secretary, as the day the determination is to come into force.

  (3)   The Secretary may only specify a day under subsection   ( 2) if:

  (a)   the Secretary is satisfied that the claimant was eligible for the special grandparent rate for the child on and since that specified earlier day; and

  (b)   the day does not occur before 1   January 2005.

  (4)   A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child comes into force on 1   January 2005 if the Secretary makes the determination because of subsection 50T(4).

  (5)   A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for the child may be varied in accordance with this Division.

  (6)   A determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate for a child remains in force, as varied from time to time, while the determination under section   50F of the claimant's conditional eligibility in respect of the child is in force.

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

    A determination under subsection 50T(1) that the claimant is not eligible for the special grandparent rate for the child:

  (a)   comes into force when it is made; and

  (b)   cannot be varied under this Division; and

  (c)   subject to paragraph   ( d), remains in force while the determination under section   50F of the claimant's conditional eligibility in respect of the child is in force; and

  (d)   ceases to have effect if a subsequent determination under subsection 50T(1) that the claimant is, or is not, eligible for the special grandparent rate for the child comes into force.

Note:   Paragraph   ( d)--a determination under subsection 50T(1) that the claimant is eligible for the special grandparent rate can be made if the claimant makes a fresh application for a determination of the claimant's eligibility for that rate.

17   At the end of section   56C

Add:

Individual eligible for special grandparent rate and something happens to cause a loss of eligibility for that rate

  (7)   If:

  (a)   a determination is in force under subsection 50T(1) with the effect that a claimant who is an individual is eligible for the special grandparent rate for a child; and

  (b)   either:

  (i)   anything happens that causes the claimant to cease to be eligible for that rate for the child; or

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

the claimant must, in the manner set out in a written notice given to the claimant under section   57, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

Penalty:   Imprisonment for 6 months.

  (8)   Strict liability applies to the following elements of an offence against subsection   ( 7):

  (a)   the element that a determination is a determination under subsection 50T(1);

  (b)   the element that a notice is a notice given under section   57.

18   At the end of Subdivision N of Division   4 of Part   3

Add:

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

  (1)   If:

  (a)   a determination is in force under section   50F with the effect that a claimant who is an individual is conditionally eligible for child care benefit by fee reduction in respect of a child; and

  (b)   a determination is in force under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and

  (c)   the Secretary makes a request under section   57F in respect of a data verification form referred to in that section; and

  (d)   the form is returned within the time specified in the request; and

  (e)   any information requested in the form relevant to the claimant's eligibility for the special grandparent rate for the child is not provided;

the Secretary may vary the determination under subsection 50T(1) with the effect that the claimant is, from 1   July in the income year following the one in which the request was made, not eligible for the special grandparent rate for the child.

Consequence of Secretary later becoming aware of information

  (2)   If:

  (a)   under subsection   ( 1), the Secretary varies the determination under subsection 50T(1); and

  (b)   before the end of the income year following the one in which the variation took effect, the claimant gives the information mentioned in subsection   ( 1) or the Secretary finds out the information;

the Secretary must vary the determination under subsection 50T(1) to undo the effect mentioned in subsection   ( 1).

19   At the end of Subdivision R of Division   4 of Part   3

Add:

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

  (1)   If:

  (a)   a determination is in force under subsection 50T(1) with the effect that a claimant who is an individual is eligible for the special grandparent rate for a child; and

  (b)   the Secretary, in order to make a decision about whether the claimant is eligible for that rate for the child at any time, requires the claimant, or the claimant's partner, under Division   1 of Part   6, to give information or produce documents; and

  (c)   the claimant or the claimant's partner refuses or fails to comply with the requirements;

the Secretary may vary the determination with the effect that the individual is not eligible for that rate for the child.

  (2)   The variation has effect from the Monday after the day the variation is made.

Consequence of later provision of information or documents

  (3)   If:

  (a)   under subsection   ( 1), the Secretary varies the determination; and

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

the Secretary must vary the determination to undo the effect mentioned in subsection   ( 1).

20   Paragraph 62D(a)

After "59F", insert ", 59G".

21   Paragraph 62D(a)

Omit "and 62C", substitute ", 62C and 62CA".

22   After subsection 63(2)

Insert:

  (2A)   If a determination under subsection 50T(1) whether a claimant is eligible for the special grandparent rate for a child is varied, the Secretary must also give notice of the variation to the approved child care service providing care to the child.

23   Subsection 63(3)

Omit "or (2)", substitute ", (2) or (2A)".

24   After section   65D

Insert:

65DA   Variation of determination of eligibility for special grandparent rate

Variation with effect that individual is not eligible for special grandparent rate

  (1)   If:

  (a)   a determination of conditional eligibility under section   50F is made in respect of a claimant who is an individual and in respect of a child; and

  (b)   a determination is in force under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and

  (c)   after the determinations are made, an event occurs; and

  (d)   the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and

  (e)   when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination under subsection 50T(1) immediately after the occurrence, the claimant would not be eligible for the special grandparent rate for the child;

the Secretary must vary the determination under subsection 50T(1) with effect that the claimant is not eligible for that rate for the child.

  (2)   The variation under subsection   ( 1) has effect from the date of the occurrence.

Variation with effect that individual is again eligible for special grandparent rate

  (3)   If:

  (a)   a determination of conditional eligibility under section   50F is made in respect of a claimant who is an individual and in respect of a child; and

  (b)   a determination is made under subsection 50T(1) with the effect that the claimant is eligible for the special grandparent rate for the child; and

  (c)   the determination referred to in paragraph   ( b) is varied with the effect that the claimant is not eligible for the special grandparent rate for the child; and

  (d)   an event occurs while the variation referred to in paragraph   ( c) is in force; and

  (e)   the determination of conditional eligibility has, at some time after the occurrence, the effect that the claimant is conditionally eligible; and

  (f)   when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination under subsection 50T(1) immediately after the occurrence, the claimant would be eligible for the special grandparent rate for the child;

the Secretary must vary the determination under subsection 50T(1) with effect that the claimant is eligible for that rate for the child.

  (4)   The variation under subsection   ( 3) has effect from:

  (a)   if no day is specified in the notice of determination--the day the variation is made; or

  (b)   on the day specified in the notice of variation.

  (5)   The Secretary may specify a day, not more than 4 weeks before:

  (a)   if the Secretary becomes aware of the occurrence because the claimant notifies the Secretary of the occurrence--the day on which the claimant notifies the Secretary of the occurrence; or

  (b)   in any other case--the day on which the Secretary makes the variation;

as the day from which the variation is to have effect.

  (6)   The Secretary may only specify a day under subsection   ( 5) if the Secretary is satisfied that, the individual was eligible for the special grandparent rate for the child on and since that specified earlier day.

Section   59G and 62CA variations prevail

  (7)   If:

  (a)   when a variation under this section takes place, a variation is in force under section   59G or 62CA; and

  (b)   the variation under section   59G or 62CA has effect for any period when the variation under this section would have effect;

the variation under section   59G or 62CA prevails over the variation under this section.

25   After subparagraph 106(1)(c)(iv)

Insert:

  (iva)   a determination decision in respect of eligibility for the special grandparent rate (a determination of this eligibility is made under subsection 50T(1));

26   Subparagraph 107(2)(a)(iv)

Omit "and".

27   At the end of paragraph 107(2)(a)

Add:

  (v)   a determination decision in respect of eligibility for the special grandparent rate (a determination of this eligibility is made under subsection 50T(1)); and

28   After subparagraph 109B(2)(c)(iv)

Insert:

  (iva)   a determination decision in respect of eligibility for the special grandparent rate (a determination of this eligibility is made under subsection 50T(1));

29   After paragraph 109D(3)(e)

Insert:

  (ea)   a determination decision that a person was, or was not, eligible for the special grandparent rate for a child (these determinations are made under subsection 50T(1)) if the decision took effect in the income year in which the application was made or in the previous income year;

30   Paragraph 109G(2)(a)

Omit "or (d)", substitute ", (d) or (e)".

31   At the end of subsection 109G(2)

Add:

  ; (f)   in the case of an adverse family assistance decision referred to in paragraph   ( e) of the definition--that the eligibility for the special grandparent rate to which the decision relates is to continue as if the adverse decision had not been made.

32   Subsection 109G(5) (at the end of the definition of adverse family assistance decision )

Add:

  ; or (e)   the person ceases to be eligible for the special grandparent rate for a child.

33   Paragraph 111(2)(a)

After "paragraph 50L(7)(b),", insert "or subparagraph 50T(2)(a)(ii), or paragraph 50T(3)(b),".

34   Paragraph 112(1A)(a)

Omit "or (d)", substitute ", (d) or (e)".

35   At the end of subsection 112(1A)

Add:

  ; and (f)   in the case of an adverse family assistance decision referred to in paragraph   ( e) of the definition in subsection   ( 4)--that the eligibility for the special grandparent rate to which the decision relates is to continue as if the adverse decision had not been made.

36   Subsection 112(4) (at the end of the definition of adverse family assistance decision )

Add:

  ; or (e)   the person ceases to be eligible for the special grandparent rate for a child.

37   After subparagraph 141A(b)(ii)

Insert:

  (iia)   a determination whether the individual is eligible for the special grandparent rate for the child;

38   Paragraph 154(3)(d)

Repeal the paragraph, substitute:

  (d)   if a determination were to be, or has been, made that the individual is so conditionally eligible:

  (i)   what weekly limit of hours, CCB % or schooling % would be, or is, applicable to the individual; or

  (ii)   whether the individual would be, or is, eligible for the special grandparent rate for a child.

39   At the end of paragraph 173(1)(d)

Add:

  ; or (v)   affects, or might affect, a person's eligibility for the special grandparent rate for a child.

40   Subsection 219A(2) (after table item   3)

Insert:

41   Subsection 219A(2) (after table item   9)

Insert:

42   Subsection 219A(2) (table item   10, at the end of column 2)

Add:

43   Paragraph 224(1)(c)

After "schooling %", insert ", eligibility for the special grandparent rate".

44   Application of amendments

The amendments made by this Schedule apply to sessions of care provided in a week that commences after 1   January 2005.