Section 7(1)(b) of the Act specifies when the spouse or partner of a biological mother is considered a primary carer. Clause 14 of the bill would insert section 7(1)(b)(iii) to provide that the spouse or partner could become the primary carer if all of the following apply:

• the child is under 1 year of age

• the spouse or partner has taken permanent primary responsibility for the child’s welfare for any reason, such as the death of the biological mother

• when the spouse or partner took permanent primary responsibility for the child, the biological mother had either not applied for, or did not qualify for, a parental leave payment.

Clause 20 of the bill as introduced would amend section 71D of the Act. It would ensure that a spouse or partner who is a primary carer under new section 7(1)(b)(iii) is not disqualified from a parental leave payment due to having taken partner’s leave before becoming the primary carer. Clause 20 refers to “an employee” as a primary carer under proposed new section 7(1)(b)(iii). However, the parental leave payments referred to in section 71D apply to self-employed individuals as well as employees. Therefore, we recommend amending clause 20 by replacing “an employee” with “a person”.

Clause 21, new section 71I(2A), would clarify that an employee who has become the primary carer under section 7(1)(b)(iii) could request a parental leave payment within a reasonable period after the employee became the primary carer.

Firstly, for the same reasons discussed for clause 20, we recommend replacing “an employee” with “an employee or self-employed person”.

Secondly, we consider that the timing requirement of a “reasonable period after the employee becomes the primary carer” should be reworded.

As introduced, the requirement appears to be more restrictive than the requirements for other primary carers defined under section 7. Those other primary carers are required to make applications under the existing section 71I(2)(a), which must be made before the earliest of:

• the date on which the person returns to work

• the date on which the child attains the age of 12 months (in the case of a child born to the person or to the person’s spouse or partner)

• the date that is one year after the first date on which either the person or the person’s spouse or partner became the primary carer in respect of the child.

In the situations for primary carers under proposed new section 7(1)(b)(iii), the timing of a “reasonable period” after becoming the primary carer is not as clear. We are concerned that “reasonable period” may be interpreted more narrowly than intended.

This could lead to unfairness. For example, a spouse or partner who becomes a primary carer under proposed new section 7(1)(b)(iii) due to the death of the biological mother may not consider making a parental leave application on becoming the primary carer. They should be allowed at least the same degree of flexibility as other primary carer applicants.

We think the timing requirements in proposed new section 71I(2A) should more closely align with those in section 71I. We also believe that there should be extra latitude to apply for parental leave payments for a person who becomes a primary carer in the circumstances described in new section 7(1)(b)(iii).

Specifically, we think that the timing requirement for applications to be made should be before, or within a reasonable period after, the earliest of the following:

• the date on which the person returns to work

• the date that is the first anniversary of the date on which the person became the primary carer in respect of the child.

We consider that this additional flexibility is consistent with the policy intent of the bill. We therefore recommend amending proposed new section 71I(2A) accordingly.