Commonwealth Numbered Acts

SOCIAL SECURITY LEGISLATION AMENDMENT (FAMILY MEASURES) ACT 1995 No. 106, 1995 - SCHEDULE 1

                            SCHEDULE 1                  Section 3

AMENDMENT OF THE SOCIAL SECURITY ACT 1991 IN RELATION TO
MATERNITY ALLOWANCE
1. After Part 2.17:
Insert:

"PART 2.17A-MATERNITY ALLOWANCE

"Division 1-Interpretation Definitions

"900A. In this Part, unless the contrary intention appears:
child includes:

   (a)  a stillborn child; and

   (b)  a child who was born alive but died before the first family payment
        payday after the date of his or her birth. stillborn child means a
        child:

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

   (b)  who has not breathed since delivery; and

   (c)  whose heart has not beaten since delivery.

"Division 2-Qualification for maternity allowance Qualification

"900B.(1) A person is qualified for maternity allowance in respect of a child
if, and only if, the applicable requirements of this section are satisfied.

"(2) The first requirement is that the child is born on or after 1 February
1996.

"(3) The second requirement, which applies only if the child is entrusted to
the care of the person or the person's partner within 13 weeks after the date
of the child's birth, is that the child continues, or is likely to continue,
in that care for not less than 13 weeks.

"(4) The third requirement, which applies only if the child is not a child
referred to in paragraph (a) or (b) of the definition of child in section
900A, is that the person is qualified for family payment in respect of the
child on any payday that occurs within 13 weeks after the date of the child's
birth.

"(5) The fourth requirement, which applies only if the child is a child
referred to in paragraph (a) or (b) of the definition of child in section
900A, is that, had the child not been a child referred to in either of those
paragraphs, the person would have been qualified for family payment in respect
of the child on any payday that occurs within 13 weeks after the date of the
child's birth. Note: For family payment see Part 2.17. Approved care
organisation not qualified for maternity allowance

"900C. An approved care organisation is not qualified for maternity allowance.
Note: For approved care organisation see subsection 6(1). Provision of
person's tax file number

"900D.(1) Maternity allowance is not payable to a person unless:

   (a)  the person has given the Secretary a written statement of the person's
        tax file number; or

   (b)  the person has given the Secretary a declaration by the person in a
        form approved by the Secretary and satisfied either subsection (2) or
        (3).

"(2) The person satisfies this subsection if:

   (a)  the person's declaration states that the person:

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

        (ii)   has asked the Commissioner of Taxation to inform the person of
               the person's tax file number; and

   (b)  the person has given the Secretary a document by the person that
        authorises the Commissioner of Taxation to tell the Secretary:

        (i)    whether the person has a tax file number; and

        (ii)   if the person has a tax file number-the tax file number; and

   (c)  the Commissioner of Taxation has not told the Secretary that the
        person has no tax file number.

"(3) The person satisfies this subsection if:

   (a)  the person's declaration states that the person has applied for a tax
        file number; and

   (b)  the person has given the Secretary a document by the person that
        authorises the Commissioner of Taxation to tell the Secretary:

        (i)    if a tax file number is issued to the person-the tax file
               number; or

        (ii)   if the application is refused-that the application has been
               refused; or

        (iii)  if the application is withdrawn-that the application has been
               withdrawn; and

   (c)  the Commissioner of Taxation has not told the Secretary that the
        person has not applied for a tax file number; and

   (d)  the Commissioner of Taxation has not told the Secretary that an
        application by the person for a tax file number has been refused; and

   (e)  the application for a tax file number has not been withdrawn.
        Provision of partner's tax file number

"900E.(1) Subject to subsection (4), maternity allowance is not payable to a
person who is a member of a couple unless:

   (a)  the person has given the Secretary a written statement of the
        partner's tax file number; or

   (b)  the person has given the Secretary a declaration by the partner in a
        form approved by the Secretary and satisfied either subsection (2) or
        (3).

"(2) The person satisfies this subsection if:

   (a)  the partner's declaration states that the partner:

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

        (ii)   has asked the Commissioner of Taxation to inform the partner of
               the partner's tax file number; and

   (b)  the person has given the Secretary a document by the partner that
        authorises the Commissioner of Taxation to tell the Secretary:

        (i)    whether the partner has a tax file number; and

        (ii)   if the partner has a tax file number-the tax file number; and

   (c)  the Commissioner of Taxation has not told the Secretary that the
        partner has no tax file number.

"(3) The person satisfies this subsection if:

   (a)  the partner's declaration states that an application by the partner
        for a tax file number is pending; and

   (b)  the person has given the Secretary a document by the partner that
        authorises the Commissioner of Taxation to tell the Secretary:

        (i)    if a tax file number is issued to the partner-the tax file
               number; or

        (ii)   if the application is refused-that the application has been
               refused; or

        (iii)  if the application is withdrawn-that the application has been
               withdrawn; and

   (c)  the Commissioner of Taxation has not told the Secretary that an
        application by the partner for a tax file number has been refused; and

   (d)  the application for a tax file number has not been withdrawn.

"(4) The Secretary may waive the request for a statement of the partner's tax
file number if the Secretary is satisfied that:

   (a)  the person does not know the partner's tax file number; and

   (b)  the person can obtain none of the following from the partner:

        (i)    the partner's tax file number;

        (ii)   a statement of the partner's tax file number;

        (iii)  a declaration by the partner under paragraph (1)(b).

"Division 3-Payability of maternity allowance Amount of maternity allowance

"900F.(1) The amount of maternity allowance in respect of a child is 3 times
the amount stated in column 3 of item 1 in Table C in point 1068A-C2 in Module
C of the Parenting Allowance Rate Calculator in section 1068A.

"(2) The amount of maternity allowance is payable as a lump sum. Maternity
allowance not payable to more than one person

"900G.(1) Subject to this section, if a person is receiving family payment in
respect of a child, maternity allowance is not payable to any other person in
respect of the same child.

"(2) Maternity allowance is not payable to a person in respect of a child if
another person has already received maternity allowance in respect of the
child.

"(3) If:

   (a)  no-one is receiving family payment in respect of a child; and

   (b)  2 or more people apply for maternity allowance in respect of the
        child; and

   (c)  the Secretary is satisfied that at least 2 of them are qualified for
        maternity allowance in respect of the child; the Secretary is to make
        a declaration:

   (d)  stating which of them the Secretary is satisfied are qualified for
        maternity allowance in respect of the child; and

   (e)  naming one of them as the person to whom maternity allowance is
        payable in respect of the child.

"(4) If such a declaration is made, maternity allowance in respect of the
child to which the declaration relates is not payable to any person who is not
named in the declaration as mentioned in paragraph (3)(e).

"(5) The Secretary is to give notice of the declaration to each of the people
involved.

"Division 4-Claim for maternity allowance Need for a claim

"900H.(1) A person who wants to be granted maternity allowance must make a
proper claim for the allowance. Note: For proper claim see section 900K
(form), section 900L (manner of lodgment) and section 900M (inhabitant of
Australia).

"(2) If:

   (a)  a claim for maternity allowance is made by or on behalf of a person;
        and

   (b)  at the time when the claim was made the claim could not be granted
        because the person was not qualified for maternity allowance; then,
        subject to section 900J, the claim is taken not to have been made.
        Early claims

"900J. If:

   (a)  a person lodges a claim for maternity allowance; and

   (b)  the person is not qualified for maternity allowance on the day on
        which the claim is lodged; and

   (c)  the person becomes qualified for maternity allowance during the period
        of 13 weeks that starts on the day immediately after that day;
        subsection 900H(2) does not apply in relation to the claim. Form of
        claim

"900K.(1) To be a proper claim, a claim must be made in writing and must be in
accordance with a form approved by the Secretary.

"(2) A claim for maternity allowance may be made either as part of, or
separately from, a claim for family payment. Lodgment of claim

"900L.(1) To be a proper claim, a claim:

   (a)  must be lodged:

        (i)    at an office of the Department; or

        (ii)   at a place approved for the purpose by the Secretary; or

        (iii)  with a person approved for the purpose by the Secretary; and

   (b)  must be so lodged within 26 weeks after the date of the child's birth.

"(2) Subject to subsection (3), a place or person approved under subsection
(1) must be a place or person in Australia.

"(3) The Secretary may approve a place or person outside Australia under
subsection (1) for the purpose of lodgment of claims made under an
international agreement. Note: For international agreements see Part 4.1.

Claimant must be inhabitant of Australia

"900M. A claim by a person is not a proper claim unless the person is an
inhabitant of Australia on the day on which the claim is lodged. Note: For
inhabitant of Australia see subsection 23(1). Claims may be withdrawn

"900N.(1) A claimant for maternity allowance or a person on behalf of a
claimant may withdraw a claim that has not been determined.

"(2) A claim that is withdrawn is taken to have not been made.

"(3) A withdrawal may be made orally or in writing. Claim to be made
retrospective in certain circumstances

"900P. If:

   (a)  a person makes a claim (the initial claim) for:

        (i)    a family payment, a child disability allowance or a double
               orphan pension; or

        (ii)   a pension, allowance, benefit or other payment under another
               Act, or under a program administered by the Commonwealth, that
               is similar in character to a maternity allowance; and

   (b)  on the day on which the person makes the initial claim, the person is
        qualified for maternity allowance; and

   (c)  the person afterwards makes a claim for maternity allowance; and

   (d)  the Secretary is satisfied that it is reasonable for this section to
        apply to the person; the person's claim for maternity allowance is
        taken to have been made on the day on which the person made the
        initial claim. Secretary may request claimant to give statement of tax
        file number

"900Q. If a claimant for maternity allowance is in Australia, the Secretary
may request but not compel the person:

   (a)  if the person has a tax file number-to give the Secretary a written
        statement of the person's tax file number; or

   (b)  if the person does not have a tax file number:

        (i)    to apply to the Commissioner of Taxation for a tax file number;
               and

        (ii)   to give the Secretary a written statement of the person's tax
               file number after the Commissioner of Taxation has issued it.
               Note: In some cases the request can be satisfied by giving the
               Secretary a declaration by the claimant about the person's tax
               file number and an authority by the person to the Commissioner
               of Taxation to give the Secretary certain information about the
               claimant's tax file number (see subsections 900D(2) and (3)).
               Secretary may request claimant to give statement of partner's
               tax file number

"900R. If:

   (a)  a claimant for maternity allowance is a member of a couple; and

   (b)  the person's partner is in Australia; the Secretary may request but
        not compel the person to give the Secretary a written statement of the
        tax file number of the person's partner. Note 1: In some cases the
        request can be satisfied by giving the Secretary a declaration by the
        partner about the partner's tax file number and an authority by the
        partner to the Commissioner of Taxation to give the Secretary certain
        information about the partner's tax file number (see subsections
        900E(2) and (3)). Note 2: The Secretary may waive the request in some
        cases (see subsection 900E(4)).

"Division 5-Determination of claim Secretary to determine claim

"900S. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim

"900T. The Secretary is to determine that the claim is to be granted if the
Secretary is satisfied that:

   (a)  the claimant is qualified for maternity allowance; and

   (b)  the allowance is payable.

"Division 6-Payment of maternity allowance Payments to be paid to person or
nominee

"900U.(1) Subject to subsection (3), a person's maternity allowance is to be
paid to the person.

"(2) The Secretary may direct that the whole or a part of a person's maternity
allowance is to be paid to someone else on behalf of the person.

"(3) If the Secretary gives a direction under subsection (2), the maternity
allowance is to be paid in accordance with the direction. Payment of maternity
allowance after death

"900V.(1) If:

   (a)  maternity allowance is payable to a person; and

   (b)  the person dies; and

   (c)  at the date of the person's death the person had not received an
        amount of maternity allowance payable to him or her; and

   (d)  another person applies to receive the amount; and

   (e)  the application is made:

        (i)    within 26 weeks after the death; or

        (ii)   within a further period allowed by the Secretary in special
               circumstances; the Secretary may pay the amount to the person
               who, in the Secretary's opinion, is best entitled to it.

"(2) If the Secretary pays an amount of maternity allowance under subsection
(1), the Commonwealth has no further liability to anyone in respect of that
amount of maternity allowance. How payment to be made

"900W. A payment of maternity allowance is to be made in any manner that the
Secretary determines.



"Division 7-Protection of maternity allowance Maternity allowance to be
absolutely inalienable

"900X.(1) Subject to subsections (2) and (3) and section 1359, maternity
allowance is absolutely inalienable, whether by way of, or in consequence of,
sale, assignment, charge, execution, bankruptcy or otherwise.

"(2) The Secretary may make a deduction from the maternity allowance payable
to a person if the person asks the Secretary:

   (a)  to make the deduction; and

   (b)  to pay the amount to be deducted to the Commissioner of Taxation.
        Note: The Secretary must make a deduction from the maternity allowance
        payable to a person if requested by the Commissioner of Taxation-see
        section 1359.

"(3) The Secretary may make a deduction from the maternity allowance payable
to a person if the person consents under section 1234A to the making of the
deduction. Note: Section 1234A enables the Secretary to recover a debt from a
person if the person is receiving a social security payment. Effect of
garnishee or attachment order

"900Y.(1) If:

   (a)  a person has an account with a financial institution; and

   (b)  a court order in the nature of a garnishee order comes into force in
        respect of the account; and

   (c)  maternity allowance payable to the person (whether on the person's own
        behalf or not) has been paid to the credit of the account during the
        4-week period immediately before the court order came into force; the
        court order does not apply to the saved amount (if any) in the
        account.

"(2) The saved amount is worked out as follows:
Method statement Step 1. Work out the amount of maternity allowance paid to
the credit of
the account as mentioned in paragraph (1)(c). Step 2. Subtract from that
amount the total amount withdrawn from the
account during the 4-week period referred to in paragraph (1)(c):
the result is the saved amount.

"(3) This section applies to an account whether it is maintained by a person:

   (a)  alone; or

   (b)  jointly with another person; or

   (c)  in common with another person. Note: A person affected by a garnishee
        order may have other saved amounts.".
2. Subsection 1223(1):
Omit "subsection (2)", substitute "subsections (1A) and (2)".
3. After subsection 1223(1):
Insert: Non-recovery of maternity allowance if lack of qualification results
from event or change in circumstances occurring after making of payment or
from incorrect estimate of income component made in good faith

"(1A) Subsection (1) does not apply in relation to a payment to a person of
maternity allowance for which the person was not qualified if the person's
lack of qualification for the allowance resulted from the person's not having
been qualified for family payment in respect of the child and either:

   (a)  the person's lack of qualification for the family payment resulted
        from an event or change in circumstances that occurred after the
        payment of maternity allowance was made; or

   (b)  the following subparagraphs apply:

        (i)    the person's lack of qualification for the family payment
               resulted from the person's income for the relevant family
               payment period exceeding the person's income ceiling;

        (ii)   that income was calculated on a basis that included an
               incorrect estimate made by the person of an income component
               under Module H of the Family Payment Rate Calculator in section
               1069;

        (iii)  at the time when the estimate was made the person did not know,
               and had no reason to suspect, that the estimate was
               incorrect.".