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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY ASSISTANCE LEGISLATION AMENDMENT (CHILD CARE) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Early Childhood Education,
Childcare and Youth the Honourable Kate Ellis MP)
FAMILY ASSISTANCE LEGISLATION AMENDMENT (CHILD CARE) BILL 2010
OUTLINE
Business continuity payments
From the time of transition to the Child Care Management System, child care
benefit (CCB) is paid to a service weekly or fortnightly in arrears, based
on reports provided through the Child Care Management System. Payment of
CCB in arrears does not provide a buffer for services whose ability to
report has been disrupted due to circumstances beyond their control.
Amendments are made to introduce business continuity payments to support a
service's financial viability during a period of disruption. Once the
payments to a service have ended, they are offset against any subsequent
payment due to the service under the family assistance law or under the
Child Care Management System Act.
Compliance with child care services' obligations
Statements to families
Approved child care services are currently required to provide statements
to individuals receiving CCB fee reductions every four weeks, setting out,
among other things, their fees and the amount of CCB fee reduction. The
start date for the statement period can vary for children in the care of
the service. The requirement to issue statements every four weeks and the
varying start dates have caused unintended complexity for services.
Amendments are being made to simplify these requirements so that services
have flexibility about when they issue the statements, while still ensuring
that the required information is provided to families for all periods of
care.
Discretionary suspension for 10 infringement notices
Where a child care service is given 10 infringement notices within a 12
month period for contravening civil penalty provisions, current legislation
requires the automatic suspension of CCB approval for the service. Other
suspension and cancellation provisions applying to CCB approval are
discretionary. This amendment will make the suspension discretionary,
enabling the Secretary to take into consideration the impact of suspension
or cancellation on the families using the service.
Notification when a service ceases operation
An operator of an approved child care service must, as a condition of the
service's continued approval, notify the Secretary when it intends to cease
operating the service at least 30 days before the operator ceases to
operate the service. Amendments are made to require the operator to notify
that they have decided to close the service or transfer ownership at least
42 days before they cease to operate the service. This will provide
additional time to deal with any potential disruption to families.
Operators that are unable to provide 42 days notice, because they have to
cease the operation earlier, in order to comply with Commonwealth or
State/Territory law, or due to other circumstances beyond their control,
will be required to provide notice as soon as possible after the decision
to cease operating the service is made. The existing penalty regime will
continue to apply in relation to failure to comply with these notification
requirements.
Transition to the Child Care Management System
Under the pre-Child Care Management System services were paid quarterly CCB
advances based on CCB fee reductions expended by the services in a
penultimate quarter. This advance was acquitted once the service submitted
usage information from that quarter and any over advance was adjusted from
the subsequent quarterly advance. Services are now paid CCB fee reductions
weekly or fortnightly in arrears based on actual usage, under the Child
Care Management System.
The acquittal of quarterly advances occurred either prior to or post the
service's transition to the new system.
This amendment will clarify that there is authority to recover over
advanced amounts paid under the previous quarterly advance system where the
acquittal occurred prior to a service transitioning to Child Care
Management System and the over advance amounts were not recovered before
the transition. These amendments are retrospective to 29 June 2007
(commencement of the amendments made for the purposes of the Child Care
Management System).
The final acquittals on transition to the Child Care Management System may
result in an amount to be paid to the approved child care service.
Amendments are made to provide for a clear power to appropriate funds for
the purposes of making payments to services resulting from the final
acquittals.
FINANCIAL IMPACT
Nil.
FAMILY ASSISTANCE LEGISLATION AMENDMENT (CHILD CARE) BILL 2010
NOTES ON CLAUSES
Clause 1 - Short title
Provides for the Act to be cited as the Family Assistance Legislation
Amendment (Child Care) Act 2010.
Clause 2 - Commencement
Subclause 2(1) inserts a three column table setting out commencement
information for various provisions in the Act. Each provision of the Act
specified in column 1 of the table commences (or is taken to have
commenced) in accordance with column 2 of the table and any other statement
in column 2 has effect according to its terms.
The table has the effect of providing for sections 1-3, Schedule 1 and Part
2 of Schedule 5 to commence on Royal Assent; Schedules 3 and 6 to commence
on the day after Royal Assent; Schedules 2 and 4 to commence on the 28th
day after the day on which this Act receives Royal Assent; Division 1 of
Part 1 of Schedule 5 is taken to have commenced on 29 June 2007; and
Division 2 of Part 1 of Schedule 5 is taken to have commenced on 16 May
2009.
Subclause 2(2) provides that column 3 of the table contains additional
information which may be added to or edited in any published version of the
Act, but that information in this column is not part of the Act.
Clause 3 - Schedule(s)
Provides that each Act that is specified in a Schedule is amended or
repealed as set out in the applicable items in the Schedule and that any
other item in a Schedule has effect according to its terms.
For ease of description, this explanatory memorandum uses the following
abbreviations:
'CCB' means child care benefit.
'Child Care Management System Act' means the Family Assistance Legislation
Amendment (Child Care Management System and Other Measures) Act 2007.
'CCR' means child care rebate.
'Family Assistance Administration Act' means the A New Tax System (Family
Assistance) (Administration) Act 1999.
'Family Assistance Act' means the A New Tax System (Family Assistance) Act
1999.
Schedule 1- Business continuity payments
Summary
A business continuity payment is a discretionary payment that may be made
in certain circumstances to approved child care services when there are
circumstances beyond their control that prevent them from providing the
weekly or fortnightly report through the Child Care Management System that
triggers the payment of CCB fee reduction to services. The purpose of the
business continuity payments is to support the service's financial
viability during the period of disruption. Business continuity payments are
recoverable in full, predominantly from the next available amounts that are
routinely due to the service by way of CCB fee reduction payments and
enrolment advances.
Background
Approved child care services are required to provide weekly reports that
trigger the payment of fee reduction amounts via the Child Care Management
System, which relies on electronic means of communication. Occasionally, a
service cannot provide the required reports within the prescribed
legislative timeframe because there is a situation beyond the service's
control that affects the service's ability to do so (eg malfunction of the
internet connection or the software the service is required to use or there
is a local emergency such as flood or bushfire). Where a service cannot
provide the weekly report on time, the fee reductions that would otherwise
have been paid to the service in connection with that report cannot be
calculated and paid.
Explanation of the changes
A New Tax System (Family Assistance) (Administration) Act 1999
Item 1 - After paragraph 66(1)(fa)
Item 1 is a technical amendment consequential to the amendment made by Item
27 authorising payment to a service of a business continuity payment. Item
1 inserts new paragraph (fb) into subsection 66(1) providing for
inalienability of the payments specified in this subsection, to ensure that
business continuity payments are inalienable and protected from any sale,
assignment, charge, execution, bankruptcy or otherwise.
Item 2 - Section 70
Section 70 provides for a regime for the creation of a debt relating to
payment of amounts by way of 'family assistance' (as defined in section 3
of the Family Assistance Act) and other specified payments made under the
family assistance law. Item 2 amends section 70 to ensure that an amount
paid by way of business continuity payments is a debt due to the
Commonwealth only if the Family Assistance Administration Act expressly
provides that it is. Item 2 makes a similar amendment for the purposes of
the payment made under section 219Q or 219QA(2) (fee reductions) and under
section 219RA (enrolment advances).
Item 3 - Subparagraphs 71G(1)(a)(ii) and (3)(a)(ii)
Subsection 71G(1) creates a debt due by the approved child care service if
an amount is paid to the service by way of weekly fee reduction payments
(under section 219Q) for sessions of care provided by the service and where
the service's approval was suspended or cancelled before the payment was
made for the session of care. The amount paid for the sessions of care
occurring after the suspension or cancellation is a debt due to the
Commonwealth by the service.
Subsection 71G(1)provides that fee reduction amounts that would be paid to
a service but for the fact that a debt was recovered from this amount under
subsection 82(2), or a set off was made against these amounts under section
219QA (set off of fee reduction amounts) or under section 219RC (set off of
enrolment amounts) are included in the amounts that are to be repaid as a
debt (see subparagraph 71G(1)(a)(ii)).
Item 3 amends subparagraph 71G(1)(a)(ii) to include a reference to new
section 219RE (inserted by Item 27), which mandates a set off of business
continuity payments against fee reduction amounts. As a result, fee
reductions which would have been paid for the sessions of care relevant to
subsection 71G(1) will also constitute a debt.
Subsection 71G(3) creates a debt due by an approved child care service if
an amount is paid to the service by way of enrolment advances (under
subsection 219RA) and the service's approval was suspended or cancelled.
The enrolment amount paid to the service is a debt due to the Commonwealth
by the service.
Subsection 71G(3) provides that fee reduction amounts that would be paid to
a service but for the fact that a debt was recovered from this amount under
subsection 82(2), or a set off was made against these amounts under section
219QA (set off of fee reduction amounts) or under section 219RC (set off of
enrolment amounts) are included in the amounts that are to be repaid as a
debt (see subparagraph 71G(3)(a)(ii)).
Item 3 amends subparagraph 71G(1)(a)(ii) to include a reference to new
section 219RE (inserted by Item 27), which mandates a set off of business
continuity payments against enrolment advances. As a result, an enrolment
advance amount which would have been paid but for that set off will also
constitute a debt.
Item 4 - After section 71GA
Item 4 inserts new section 71GB. New subsection 71GB(1) creates a debt in
respect of a business continuity payment paid to a service in circumstances
where the service's approval is suspended or cancelled and the amount of a
business continuity payment has not been set off in full under new section
219RE (inserted by Item 27) against an amount of fee reductions or
enrolment advances or a payment under subitem 97(5) or 97A(5) of Part 2 of
Schedule 1 of the Child Care Management System Act that were to be made to
the service. The amount of the business continuity payment that has not
been set off before the day of suspension or cancellation is a debt due to
the Commonwealth by the service.
New subsection 71GB(2) creates a debt in respect of a business continuity
payment made to a financial institution for the credit of an account kept
with that institution but the payment was not intended for the person or
persons who kept that account. The whole amount paid is a debt due to the
Commonwealth by that person or persons.
New subsection 71GB(2) ensures that only the amount of a debt that has not
been recovered from the financial institution under the recovery mechanism
in section 93A is the debt recoverable from the person or persons in whose
name the account is kept. Item 8 amends section 93A to ensure that it
applies to enable the recovery of business continuity payments from the
financial institution.
Item 5 - Subsection 82(3) (paragraph (a) of the definition of debt)
Item 5 is an amendment consequential to the amendment made by Item 4 to
include a reference to an amount of business continuity payment paid to a
service in the definition of debt under subsection 82(3). This amendment
ensures that a business continuity payment debt is recoverable by the same
means as specified in subsection 82(2) relating to recovery of all other
debts owed by approved child care services.
Items 6 and 7 - Paragraphs 87A(2)(b) and 87B(2)(b)
Items 6 and 7 make minor technical amendments to the wording of paragraphs
87A(2)(b) and 87B(2)(b) to reflect correctly the intended operation of the
setting off mechanism when a debt owed by an approved child care service is
being recovered from both fee reductions (under section 87B) and enrolment
advances (under section 87A) that are to be paid to the service.
Item 8 - Subsection 93A(6) (after paragraph (ba) of the definition of
family assistance payment)
Section 93A enables the recovery from financial institutions of the family
assistance payment amounts paid to an incorrect account. This may be where
it is intended to be paid to someone who was not the person in whose name
the account was kept, or to an account in the name of the person who died
before the amount was paid. Item 8 amends the definition of 'family
assistance payment' applicable in the context of this section to ensure
that business continuity payments paid in these circumstances are
recoverable from the financial institution.
Items 9 - After paragraph 104(d)
Item 9 amends section 104 so that a decision made by the Secretary relating
to business continuity payments under new section 219RD (inserted by Item
27) is not reviewable by the Secretary on the initiative of the Secretary.
Item 10 - After paragraph 108(2)(da)
Item 10 amends subsection 108(2) so that where an applicant seeks a review
of a decision made by the Secretary relating to business continuity
payments under section 219RD (inserted by Item 27) the decision is not
reviewable.
The effect of the amendments made by Items 9 and 10 is that under the
family assistance law these decisions are not able to be the subject of the
merits review. Business continuity payments may be made if an approved
child care service is unable, in accordance with the circumstances to be
specified in a ministerial determination (a legislative instrument), to
give the Secretary a weekly report, as required by section 219N, that
triggers the payment of fee reduction amounts to the service. Business
continuity payments are designed as discretionary and fully recoverable
payments that provide short-term financial assistance to approved child
care services. The payment is not an entitlement and there is no lasting
benefit associated with the payment. It is therefore considered that, given
the nature of the payments, it would be inappropriate to provide for the
merits review of decisions relating to those payments.
Items 11, 12, 13, 14 and 15 - Subparagraph 176(1)(a)(iii), at the end of
paragraph 176(1)(a), at the end of subsection 176(2), at the end of
subsection 176(3), and at the end of subsection 176(4)
Items 11 to 15 amend section 176, which provides that a person contravenes
this section if the person obtains the payments specified in subsection
176(1) by means of impersonation, or by fraudulent means, or if the person
obtains the payment as a result of making a false or misleading statement
and the person was reckless as to whether the statement is false or
misleading. This includes fee reductions and enrolment advances paid to
approved child care services. Section 177 creates an offence for these
contraventions. The offence is a strict liability offence (subsections
176(2) and (4) refer).
Items 11 to 15 make amendments to section 176, to which an offence already
applies, to insert references to business continuity payments (under new
section 219RD inserted by Item 27) so that a section 177 offence also
applies to contraventions specified in section 176 relating to obtaining
business continuity payments. Consistent with the current operation of
sections 176 and 177 as they apply to the existing payments made to child
care services, strict liability applies to the element of the new offence
that a payment is made to the service under new section 219RD. Strict
liability is an appropriate basis for the offence because of the difficulty
the prosecution would have in proving fault (especially knowledge or
intention) in this case and the fact that the offence does not involve
dishonesty or serious imputation affecting a person's reputation.
Item 16 makes an amendment to section 178, consequential on the amendments
made to section 176 by Items 11 to 15. Section 178 provides for a court
order that a person pays the Commonwealth an amount equal to any amount of
the payment made as a result of the offence against section 177 if the
person is convicted of that offence. The amendment made by Item 16 ensures
that a court order may be made in relation to the amounts of business
continuity payments.
Items 17 and 18 - Subsection 219AB(2) and at the end of section 219AB
Section 219A deals with a service's obligation to notify the Secretary of
the enrolment of a child by an individual, and section 219AA deals with a
service's obligation to notify the Secretary of an enrolment where the
service is eligible for CCB by fee reduction for a child at risk under
section 47 of the Family Assistance Act and the service has given a
certificate under section 76 of that Act.
Section 219AB sets out the time and manner in which a notice of an
enrolment must be given under sections 219A and 219AA. Item 18 inserts new
subsection 219AB(4) which deals with the timeframe within which a notice
(under sections 219A and 219AA) must be given in circumstances where a
business continuity payment has been made to the service (Item 27 inserted
new section 219RD providing for business continuity payments). New
subsection 219AB(4) provides that if a business continuity payment is made
to a service for a specified period as notified to the service; and the
payment is made because of the service's inability to give a report as
required under section 219N for a particular week for enrolments that have
been notified already; and the last day on which the service must notify
new enrolments (as specified in section 219AB) is the same as the last day
on which the report required to be given (as specified in subsection
219(5)) or occurs during the period specified in the business continuity
payment notice (provided to the service under new subsection 219RD(4));
then the enrolment notice must be given no later than 7 days after the end
of the specified period. In a situation where business continuity payments
were made for more than one consecutive period (each separately notified),
the enrolment notice must be given no later than 7 days after the end of
the last of those periods.
This new deadline ensures that, where a business continuity payment is made
in connection with a report required to be given by a particular day,
sanctions, criminal and civil penalties do not apply for the service's
failure to notify an enrolment which was due to be notified by that day or
during the period for which a business continuity payment is paid.
An example is provided at the end of new subsection 219AB(4) to illustrate
how this new provision will operate.
Item 17 makes a consequential amendment to subsection 219AB(2) to insert a
reference to new subsection 219AB(4) inserted by Item 18.
Items 19 and 20 - Subsection 219AF(1) and after subsection 219AF(1)
Section 219AF deals with the obligation of a service to update enrolment
information where that information becomes incorrect or new information
subsequently becomes available. The updated information must be provided
to the Secretary within 7 days after the information becomes incorrect or
new information becomes available. Item 20 inserts new subsections
219AF(1A) and (1B), which together with Item 19 (which makes a
consequential amendment to subsection 219AF(1)) provide that if a business
continuity payment is made to a service in relation to a specified period
notified to the service; and the payment is made because of the service's
failure to give a report required to be given under section 219N for a
particular week for enrolments that have been notified already; and the
last day on which the service must notify new enrolments (as specified in
section 219AB) is the same as the last day on which the report is required
to be given (as specified in subsection 219(5)) or occurs during the period
specified in the business continuity payment notice (provided to the
service under new subsection 219RD(4)); then the enrolment notice must be
given no later than 7 days after the end of the specified period. In a
situation where business continuity payments were made for more than one
consecutive period (each separately notified), the enrolment notice must be
given no later than 7 days after the end of the last of those periods.
This new deadline ensures that, where a business continuity payment is made
in connection with a report required to be given by a particular day,
sanctions, criminal and civil penalties do not apply for the service's
failure to update an enrolment if the update was due by that day or during
the period for which a business continuity payment is paid.
Items 21 and 22 - Subsection 219N(5) and after subsection 219N(5)
Section 219N imposes an obligation on an approved child care service to
give reports to the Secretary for each week of care provided to the
enrolled children whose enrolment was notified by the service and confirmed
by the Secretary (subsections 219N(1) and (2) refer). A report for a week
must be given by the end of the week following the week in which care was
provided; the first report in respect of a new confirmed enrolment must be
given within 7 days from the day of the confirmation (subsection 219N(5)
refers). The report is required to be given in the form and manner or way
approved by the Secretary (subsection 219N(3) refers); services must
provide the report via the electronic interface maintained by the
department using registered software, as approved.
The report triggers calculation of CCB fee reductions for the week
reported. The fee reductions are paid to the service to be passed on to the
individuals who are conditionally eligible for CCB by fee reduction under
section 50F of the Family Assistance Act, or onto the service itself if the
service is eligible for CCB by fee reduction under section 47 of that Act.
Sanctions (section 200 refers) and civil penalties (subsection 219N(5)
refers) apply for failure to give the report in accordance with section
219N (including for failure to provide the report within the prescribed
time or in the approved form, manner and way). Contravention of section
219N is an offence (subsection 219N(6) refers).
Item 22 inserts new subsection 219N(5AA), which together with Item
21(making a consequential amendment to subsection 219N(5)) provides that if
a business continuity payment is made to a service in relation to a
specified period notified to the service; and the payment is made because
of the service's failure to give the report required under subsections
219N(1) or (2) (within the period applicable under subsection 219N(5)), the
report must be given no later than 7 days after the end of the specified
period. In a situation where the payments are made for more than one
consecutive period, the notice must be given no later than 7 days after the
end of the last of those periods.
This new deadline ensures that, where business continuity payments are made
in connection with a report, sanctions, criminal and civil penalties do not
apply for the service's failure to provide the report within the time
specified in subsection 219N(5).
Item 23 - After paragraph 219Q(3)(c)
Section 219Q requires the Secretary to pay to an approved child care
service the amounts of fee reductions calculated in respect of a week under
section 50Z or 50ZB or recalculated under section 50ZA or 50ZC. Subsection
219Q(3) provides that the requirement in section 219Q is subject to: the
provisions in Part 4, which deal with overpayments and debt recovery;
section 219QA which deals with set off where the amount of applicable fee
reduction is reduced on recalculation; section 219RC which deals with set
off where enrolment ceases; and paragraph 200(1)(h) which deals with
suspension of payment in respect of fee reduction. Item 23 inserts a
reference to new section 219RE providing for a set off from fee reduction
amounts where a business continuity payment is made under new section 219RD
(both new sections 219RE and 219RD are inserted by Item 27).
Item 24 - Subparagraph 219QB(1)(a)(ii)
Section 219QB requires the service to remit any fee reduction amount paid
to the service under new section 219Q or that would be paid but for a set
off under subsection 82(2) (debt recovery), section 219QA (set off of a
previously calculated higher amount) or section 219RC (set off of an
enrolment advance) if it is not reasonably practicable for the service to
pass on that amount to the individual or the service itself within the time
required under new subsections 219B(2) or 219BA(2) (within 14 days after
being notified of the amount calculated or recalculated). Item 24 inserts a
reference to new section 219RE (set off of business continuity payments) in
subparagraph 219Q(1)(a)(ii) that specifies the provisions authorising a set
off against fee reductions, to include this new set off within the ambit of
section 219QB (as it further affects the payment).
Item 25 - After paragraph 219RA(2)(c)
Section 219RA provides that the Secretary must pay the amount of the
enrolment advance if an approved child care service makes an election to
receive an enrolment advance in relation to a particular enrolment (in
accordance with section 219R) and the Secretary confirms the enrolment
(under section 219AE). Subsection 219RA(2) specifies the following
provisions that may affect the payment: Part 4 (overpayments and debt
recovery); section 219QA (set off where amount of applicable fee reduction
reduced on recalculation); section 219RC (set off when enrolment ceases);
and paragraph 200(1)(f) (withholding of enrolment advances). Item 25
inserts a reference to new section 219RE (set off of business continuity
payments) in paragraph 219RA(2)(c) that specifies the provisions
authorising a set off against enrolment advances, to include this new set
off within the ambit of section 219RA (as it further affects the payment).
Item 26 - Paragraph 219RC(b)
An enrolment advance amount paid is recoverable when the enrolment to which
it relates ceases (in the circumstances specified in section 219AD). If the
enrolment ceases, section 219RC requires the Secretary to set off the
amount of the advance against any other enrolment amount to be paid to the
service or any fee reduction amount to be paid to the service, whether fee
reductions relate to this particular enrolment or not. Paragraph 219RC(b)
provides that an enrolment advance amount that would have been paid but for
the fact that a debt was recovered from this amount under subsection 82(2),
or a set off under section 219QA or 219RC occurred against this amount, is
also recoverable in full. A business continuity payment amount made to a
service is to be set off against any enrolment advance that is to be paid
to the service (under new section 219RE inserted by Item 27). Item 26
amends paragraph 219RC(b) to insert a reference to that new set off
affecting enrolment advance amounts. The effect of the amendment is that an
enrolment advance amount that would have been paid but for a set off of a
business continuity payment will still be recoverable under section 219RC.
Item 27 - At the end of Part 8A
Item 27 inserts a new Division 4, which deals with business continuity
payments to approved child care services.
New subsection 219RD(1) provides the Secretary with a discretionary power
to determine that a business continuity payment is to be made to an
approved child care service in relation to a period if: the service is
required to give to the Secretary a report under subsection 219N(1) or (2)
for a week in respect of one or more enrolments (where one or more sessions
of care have been provided to the child in the week); and, the service
fails to give the report for the week within the period applicable to the
report under subsection 219N(5) ; and, the Secretary is satisfied that the
failure to give the report is due to circumstances specified in a
determination under new subsection 219RD(2).
New subsection 219RD(2) provides that the Minister must, by legislative
instrument, determine the following matters: the circumstances in which the
Secretary may determine that business continuity payment may be paid; and
the method of determining the amounts of business continuity payment. It is
intended that the relevant circumstances will encompass situations beyond
the service's control, such as, a malfunction of the internet connection or
the software the service is required to use, or a local emergency (flood or
bushfire). The intended method of calculating the amount of the payment is
to set the payment at the amount of the fee reduction payment for the last
week for which the service provided a report.
This subsection authorises the Minister to set out in the instrument any
other matter relating to the payment that the Minister thinks appropriate.
For example, the instrument may specify the time limit on the period for
which business continuity payments may be paid or such matters as the
application process (if any) for obtaining the payment.
New subsection 219RD(3) provides that the Secretary must pay into a
nominated bank account maintained by the service any amount of business
continuity payments determined by the Secretary under new section 219RD.
New subsections 219RD(4) and (5) require the Secretary to give a notice to
the service, in the form, manner and way approved by the Secretary, of the
business continuity payment and of the period to which the payment relates.
New section 219RE provides that if a business continuity payment is made to
an approved child care service (under new section 219RD), the Secretary
must set off an amount equal to the payment against any amount of fee
reductions to be paid to the service; or any enrolment advance to be paid
to the service; or any payment to be made to a service resulting from
acquittals under subitem 97(5) of Schedule 1 to the Child Care Management
System Act; or subitem 97A(5) of that Schedule (as modified by Family
Assistance Legislation Amendment (Child Care Management System and Other
Measures) Regulations 2009).
Item 28 - Application
Item 28 inserts an application provision which provides that paragraph
219RD(1)(a) (as inserted by Item 21), providing for the payment of business
continuity payments, applies in relation to:
. a report required to be given under subsection 219N(1) or (2) on or
after the commencement of this item (that is, where the week to be
reported on falls after the commencement day); and
. a report required to be given under that subsection before that
commencement, where the period under subsection 219N(5) of that Act
relating to the report (that is, the period within which the report
for a particular week has to be provided) ends on or after that
commencement.
The application provision does not authorise the making of business
continuity payments in respect of the reports under subsection 219N(1)) and
(2) if the last day of the period within which the service is required to
provide the report (under subsection 219N(5)) ended before the commencement
of the amendments made by this Schedule (the day of Royal Assent).
.
Family Assistance Legislation Amendment (Child Care Management System and
Other Measures) Act 2007
Item 29 - Before item 98 of Schedule 1
Item 29 inserts new section 97C. New subitem 97C(1) ensures that all
payments that are to be made to services under subitem 97(5) and subitem
97A(5) are subject to set off for recovery of relevant amounts of business
continuity payments (under section 219RE of the Family Assistance
Administration Act). New subitem 97(2) defines the term subitem 97A(5) to
mean subitem 97A(5) of this Schedule as modified by the Family Assistance
Legislation Amendment (Child Care Management System and Other Measures)
Regulations 2009.
Schedule 2- Obligation on approved child care services to provide
statements
Summary
This Schedule amends the Family Assistance Administration Act to modify the
current obligation of an approved child care service relating to the
provision of 4-weekly statements to the individuals who are conditionally
eligible for CCB by fee reduction for a child. The modifications are
intended to provide services with greater flexibility in the manner in
which they may provide statements. In particular, a service will be able
to provide a statement for all the individuals at the same time, for any
period chosen by the service not exceeding 3 months.
Background
Currently, section 219E of the Family Assistance Administration Act
requires an approved child care service, as a condition of continued
approval of the service, to give 4-weekly statements to individuals using
the service, who are conditionally eligible for CCB by fee reduction. The
4-week statement period starts on a day specific to each child, or group of
children, as the case may be (subsection 219E(4) refers). The statement
provides a vehicle by which the individuals in question are informed about,
among other things, the amount of fee reductions calculated for them by the
Secretary, in respect of the statement period.
The obligation to provide statements on a child-specific, 4-weekly cycle is
of considerable concern to child care services as this obligation may not
align with the service's usual accounting or business practices. This
affects services' compliance with the current statement requirements.
The amendments made by this Schedule provide greater flexibility for
approved child care services in the way they provide the statements, and
parents or families continue to receive the information for the whole
period that they are using care.
Explanation of the changes
A New Tax System (Family Assistance) (Administration) Act 1999
Item 1 - Subsection 3(1) (at the end of paragraph (h) of the definition of
civil penalty provision)
Item 1 amends the definition of civil penalty provision in subsection 3(1)
by including a reference to new subsection 219E(7) (inserted by item 5 of
this Schedule). Further explanation is provided in the context of the
amendment made by Item 5.
Item 2 - Subsection 219E(1)
Section 219E deals with the obligation of approved child care services to
provide a statement for a statement period to an individual who is
conditionally eligible for CCB by fee reduction for a child or to some
other person specified under rules made under subsection 219E(6).
Currently, if a service is required under section 219B to pass on to the
individual an amount of fee reduction in respect of a session or sessions
of care occurring during a statement period, subsection 219E(1) requires
the service to give the individual (or the other person), a statement for
the statement period within four weeks of the end of the statement period.
Item 2 amends subsection 219E(1) to allow a service to give the statement
before the end of one month starting on the day after the end of the
statement period. This amendment, in the context of section 219E as
amended, operates to the effect that, if sessions of care are provided to a
child during the entire statement period, the service will be required to
provide the statement for that period after the end of the period, within
one month from the end of the period. If a child leaves the service before
the end of the statement period and the service is certain that it will not
provide any more sessions of care for a child in that period, the service
will be able to provide the statement relating to that child at any time
after the cessation of care and before the end of one month after the end
of the statement period (for example, immediately after the cessation of
care irrespective of when during the statement period the care has ceased).
Item 3 - Paragraph 219E(2)(d)
Subsection 219E(2) is an offence provision for a service's failure to
comply with the obligation to provide a statement for a statement period at
the time specified in subsection 219E(1). It is an offence of strict
liability (subsection 219E(3) refers).
Item 3 makes a consequential amendment to paragraph 219E(2)(d) referring to
the time-frame for the provision of a statement specified in subsection
219E(1), so that it refers to the time-frame as amended by Item 2.
Item 4 - Subsection 219E(4)
Subsection 219E(4) determines the frequency with which a service must give
a statement to an individual. It also specifies a start date of any
statement period. Currently subsection 219E(4) requires a service to
provide a statement on a 4- weekly cycle, potentially different for each
child in care of the service.
Item 4 amends subsection 219E(4) to change the duration of the period for
which a statement must be given from the 4 week period to a 3 month period
or any period shorter than 3 months. It also provides that the start of
the statement period is specific to the service, so that the statements for
all the relevant children in care of the service are provided at the same
time.
New paragraph 219E(4)(a) provides that the first statement period for the
service is the 3-month period that commences on the day (further referred
to as the initial day) that is:
(i) the day on which Schedule 2 to the Family Assistance Legislation
Amendment (Child Care) Act 2010 commences; or
(ii) if the Secretary approves the service (under section 195) on a
day later than that commencement day, that later day.
That is, if, on the day of the commencement of these amendments, a child
care service is approved under section 195 for the purposes of the family
assistance law, the service's first statement period starts on the
commencement day. If a service is approved after the commencement day, the
service's statement period starts on the day on which the approval is
given. This day may not necessarily be the same day from which a service's
approval is expressed to operate. If, for example, a service's approval is
expressed to operate retrospectively, the service is not required to
provide a statement for the periods of care occurring before the day on
which the approval was given.
Alternatively, paragraph 219E(4)(a) also provides that if (before or during
the 3-month period) the service chooses a period shorter than the 3-month
period starting on the initial day, then the shorter period is the first
statement period.
New paragraph 219E(4)(b) provides that each of the subsequent statements
periods is either:
(i) the 3-month period commencing on the day after the end of the
immediately preceding statement period; or
(ii) if the service has chosen a shorter period, the shorter period.
Item 5 - At the end of section 219E
Item 5 inserts new subsections 219E(7) and (8).
Section 50ZA of the Family Assistance Administration Act allows the
Secretary to recalculate the rate and amount of fee reductions which the
Secretary considers is applicable in respect of any sessions of care
provided to a service for a child in a week.
New subsection 219E(7) provides that, if a service has already given an
individual or some other person a statement under subsection 219E(1)
relating to any sessions of care provided by a service to a child in the
statement period, the service is required to give an individual/person a
revised statement if the service has been notified on a day (the
notification day) of a recalculated rate or amount (under section 50ZA) in
respect of any of those sessions of care. The service must, before the end
of the first statement period starting after the notification day, give the
individual/person either a statement taking account of the recalculation or
a statement amending the earlier statement so as to take account of the
recalculation.
A note at the end of new subsection 219E(7) informs the reader that
subsection 219E(7) is a civil penalty provision and that Part 8C provides
for pecuniary penalties for breaches of civil penalty provisions. Item 1
amends the civil penalty provision definition in section 3 to include new
subsection 219E(7). This means that the consequences for failure to comply
with the obligation under subsection 219E(1) to give a statement for a
statement period, which is currently subject to civil penalties, and the
consequences for failure to correct or reissue the statement previously
given, are the same.
New subsection 219E(8) provides that a service commits an offence if the
service has given a statement under subsection 219E(1) relating to sessions
of care provided during a statement period, is notified of recalculation of
fee reductions under section 50Z in respect of any of the sessions falling
within the statement period and the service fails to give a corrected
statement or fails to reissue the statement as required by new subsection
219E(7). The penalty is 60 penalty units; the same penalty currently
applies in relation to an offence for failure to give the statement
required under subsection 219E(1) (subsection 219E(2) refers). This offence
is a strict liability offence, as is the offence for the failure to give
the statement required under subsection 219E(1) (subsection 219E(2)
refers). Strict liability is an appropriate basis for the offence because
of the difficulty the prosecution would have in proving fault (especially
knowledge or intention) in this case and the fact that the offence does not
involve dishonesty or serious imputation affecting a person's reputation.
Item 6 - Saving provision
Item 6 is a saving provision. It operates to the effect that the current
requirements of section 219E relating to the provision of a statement
continue to apply in relation to any statement period which started before
commencement of this Schedule.
Schedule 3- Suspension of approved child care services' approvals
Summary
This Schedule amends the Family Assistance Administration Act to change
section 219TSQ requiring automatic suspension of a child care service's
approval for the purposes of the family assistance law where the service is
given 10 infringement notices within a period of 12 months for
contraventions of civil penalty provisions. The amendment results in the
suspension being changed from a mandatory suspension to a discretionary
suspension.
Background
Currently, section 219TSQ requires the Secretary to suspend a child care
service's approval for the purposes of the family assistance law if 10
infringement notices are issued to the operator in relation to the
service's contraventions of a civil penalty provision (as defined in
section 3 of the Family Assistance Administration Act) within a period of
12-months. Section 219TSQ has not yet had any application.
Explanation of the changes
Suspension of a service's approval affects the individuals using the
service (neither CCB fee reductions nor CCR can be paid in respect of child
care provided by the service during the period of suspension). It is
therefore considered more appropriate for the suspension to be applied
flexibly, at the Secretary's discretion, rather than to be mandatory.
A New Tax System (Family Assistance) (Administration) Act 1999
Item 1 - Subsection 219TSQ(1)
Item 1 amends subsection 219TSQ(1) by replacing the word "must" with the
word "may". The amendment results in the Secretary being provided with a
discretion to suspend a child care service's approval where the service is
given 10 infringement notices under section 219TSI within a period of 12
months and, in relation to each notice, the time for paying the penalty
imposed has ended before the end of the 12-month period.
Item 2 - Application
Item 2 is an application provision. It provides that the amendment made by
Item 1 applies in relation to:
. infringement notices given on or after the commencement of Item 1; and
. infringement notices given before the commencement of Item 1, other
than where the conditions for the requirement to suspend a service's
approval in relation to such notices were satisfied prior to that
commencement.
That is, if 10 infringement notices were given before the commencement and,
for each of those notices, the time given to pay the penalty specified in
the notice has passed before the commencement, section 219TSQ providing for
a mandatory suspension applies. In any other situation, section 219TSQ as
amended, providing for a discretionary suspension, applies.
Schedule 4- Notification of cessation of operation of approved child care
services
Summary
This Schedule amends the Family Assistance Administration Act to require
the operator of an approved child care service to provide to the Secretary
at least 42 days notice of the operator's decision to cease operating the
service. Where an operator decides to cease operating the service to avoid
being in breach of a law of the Commonwealth, a State or a Territory, or
due to circumstances beyond the operator's control, the operator must
notify the Secretary of that decision as soon as possible after that
decision.
Background
Currently, where an operator intends to cease operating an approved child
care service, the operator must give at least 30 days notice of intention
to cease the operation (whether due to closure of the service or transfer
of the operation to another operator) (subsection 219M(1) refers). This
requirement is intended to provide the department with the time to take
steps, if necessary, to ensure that the children from an affected service
are not left without the availability of care and that continued care can
be provided for the children by another service. Early notification of the
intended cessation is also required to ensure that in circumstances where,
for example, a service has been purchased by a new operator, the process
that the legislation requires to be followed in relation to the new
operator seeking approval of the service for the purposes of the family
assistance law does not result in the gaps in the entitlement to child care
benefit or child care rebate of the individuals using the service.
The current 30 days notice requirement provides insufficient time for the
department to assess the child care situation and/or take any necessary
steps to alleviate the impact of the closure or transfer of the operation
on the children and parents affected. Therefore, the amendments made by
this Schedule require that, as a rule, the provision of a notice relating
to the cessation must be made at least 42 days before the cessation.
Explanation of the changes
A New Tax System (Family Assistance) (Administration) Act 1999
Item 1 - Subsection 219M(1)
Item 1 repeals and substitutes subsection 219M(1). New subsection 219M(1)
requires a person who operates an approved child care service to notify the
Secretary if the person decides to cease operating the service. The
cessation of operation includes, for example, a closure of the service or a
transfer of the operation to a new operator resulting from sale of the
child care service.
New paragraph 219M(1)(a) requires the operator, as a rule, to notify the
Secretary of that decision at least 42 days before the cessation. This
rule applies to most of the cessations; in particular to the cessations
occurring as a result of the transfer of the operation to a new operator
(new legal entity) as a result of sale or otherwise.
New paragraph 219M(1)(b) provides exceptions from the 42-day notice rule.
In cases where the operator decides to cease the operation of a service to
either avoid being in breach of a law of the Commonwealth, a State or a
Territory or due to circumstances beyond the operator's control, the
operator must notify the Secretary as soon as possible after that decision.
If the cessation occurs in the circumstances to which this paragraph
applies, this paragraph will enable the operator to notify the decision to
cease operation later than 42 days before the cessation, that is, closer to
the cessation day (but as soon as possible after that decision is made). An
example of the operation of this shorter notification time-frame could be
where a company operating a service becomes aware that it is insolvent and
decides to immediately cease the operation to avoid penalties for insolvent
trading under the Corporations Act 2001.
Item 1 also inserts two notes at the end of new subsection 219M(1).
The first note alerts the reader that new subsection 219M(1) is a civil
penalty provision, for the breach of which Part 8C provides pecuniary
penalties. The civil penalty provision is defined in section 3; it
includes the current section 219M(1). The amended notification requirement
provision continues to be a civil penalty provision.
The second note alerts the reader that the heading to section 219M is
changed by omitting the word "intends" and substituting the word "decides".
This reflects the fact that subsection 219M(1) as amended refers to the
operator's 'decision' to cease the operation rather than to the operator's
'intention', as is currently the case. It is considered that the reference
to the operator's 'decision' provides a clearer legal test and, therefore,
will assist in the administration of the notification obligation.
Items 2 and 3 - Paragraphs 219M(4)(a) and 219M(4)(b)
Items 2 and 3 are technical amendments consequential to the amendments made
by Item 1.
Item 4 - Paragraph 219M(6)(b)
If an operator notifies the Secretary of the cessation, as required by
amended subsection 219M(1), the Secretary may request the operator, under
subsection 219M(4), to provide the information specified in the request
concerning the cessation, or the cessation decision, as the case may be.
Currently, paragraph 219M(6)(b) requires that the information requested be
given to the Secretary within 7 days after the day on which the request was
given to the operator. Item 4 amends paragraph 219M(6)(b). It preserves
the 7-day time-frame for the provision of the specified information
relating to the cessations to which the 42-day notification requirement in
paragraph 219M(1)(a) applies (new subparagraph 210M(6)(b(i) refers). If
the notification requirement in paragraph 219M(1)(b) applies to a cessation
decision (that is, 'as soon as possible' after the decision to cease to
operate the service), the specified additional information must be provided
within the time specified by the Secretary in the request for that
information (new subparagraph 219M(6)(b)(ii) refers).
Item 5 - Application
Item 5 provides that the amendments made by this Schedule apply in relation
to decisions to cease operating an approved child care service made on or
after the commencement of this Schedule.
Schedule 5- Recovery of old advances to approved child care services
Summary
Under the pre-Child Care Management System, services were paid quarterly
CCB advances based on CCB fee reductions expended by the services in a
penultimate quarter. Under the new Child Care Management System services
are now paid weekly or fortnightly in arrears.
This Schedule amends the Child Care Management System Act to clarify that
over advances resulting from acquittals made prior to services' transition
to the Child Care Management System, and not recovered before the
transition, are fully recoverable. These amendments operate retrospectively
to 29 June 2007 (commencement of the amendments made for the purposes of
the Child Care Management System).
This Schedule also makes amendments to ensure that the actions that were
taken by the staff of Centrelink and the Department relating to acquittals
under the Child Care Management System Act of the amounts previously
advanced to services have the intended legal effect.
Background
The Family Assistance Administration Act as in force before 29 June 2007
(further referred to as 'previously in force') provided for the payment to
approved child care services of advance amounts to reimburse the services
for amounts of CCB fee reductions the services were required to make to
individuals who were determined to be conditionally eligible for CCB by fee
reduction for a child. These advance amounts were estimated for a calendar
quarter and paid to services usually in quarterly instalments. By the end
of the following quarter, each service was required to submit a report
specifying, among other things, the actual child care usage and the amount
of fee reductions which the service provided to the individuals during the
quarter. After submission of the report, the advance amounts paid to the
service were acquitted by comparing the amount of advance paid against the
actual amount of fee reductions provided by the service. Where the
comparison resulted in an excess of the advance, the excess amount was
recovered by a set off against any subsequent advance amount to be paid to
the service. As long as a service continued to be an approved child care
service, any over-advanced amount was recoverable but not as a debt; it was
merely carried over to be applied as a set off against future advances, as
provided for in the Family Assistance Administration Act. It was only at
the time when a service's approval was suspended or cancelled that an
outstanding over-advanced amount became a debt under the Family Assistance
Administration Act, due to the Commonwealth by the service.
The relevant provisions of the Family Assistance Act as previously in
force, relating to payment and acquittal of advances, were included in
Division 2 of Part 8A of that Act. The legislation as previously in force
unambiguously provided for recovery of any excess of the advance paid to
services. The recovery of an excess advance amount has been an intrinsic
element of the advance and acquittal system, well recognised by the
services participating in that system as a result of their approval under
the family assistance law.
The Child Care Management System Act repealed the provisions of the Family
Assistance Administration Act dealing with advances, as part of the
amendments introducing the Child Care Management System, which did not
provide for the payment of advances.
The Child Care Management System Act contained transitional provisions
authorising the conducting, after the services' transition to the new Child
Care Management System, of acquittals of previously advanced amounts that
were not yet acquitted before the transition (item 97 of the Child Care
Management System Act refers). Any over-advanced amount resulting from
that post-transition acquittal is a debt due to the Commonwealth by the
service, recoverable by the means specified in subsection 82(2) of the
Family Assistance Administration Act. This includes from any fee reduction
payment and enrolment advance payments due to the service under that Act
after the service's transition to the Child Care Management System (subitem
97(4) refers).
Similarly, any excess amount of the advance determined through re-acquittal
or adjustment, authorised under the transitional provisions, of the advance
amounts previously acquitted before the transition (under the repealed
provisions of the Family Assistance Administration Act) or after (under the
transitional provisions) constitute a debt due to the Commonwealth by the
service, recoverable by the means specified in subsection 82(2) of the
Family Assistance Administration Act (subitem 97A(4) of the Child Care
Management System Act refers).
However, the transitional provisions omitted to provide a similar mechanism
specifically to recover the over-advanced amounts. These were validly
acquitted under the pre-transition legislative provisions but not fully
recouped under the previous legislative offsetting mechanism, which stopped
being available once a service transitioned to the Child Care Management
System.
Explanation of the changes
Part 1-Amendments
Division 1-Amendments commencing on 29 June 2007
Family Assistance Legislation Amendment (Child Care Management System and
Other Measures) Act 2007
The absence in the legislation of a specific mechanism for recovery of the
over-advanced amounts acquitted under the pre-transition legislative
provisions, that is, under section 219S of the Family Assistance
Administration Act as previously in force, but not fully recouped before
the transition of services to the Child Care Management System, has not
been recognised until recently. The recoveries of those amounts were
carried out after the transition, in the same way as if it was an over-
advanced amount acquitted under the transitional provisions of the Child
Care Management System Act. The recovery was done through setting off the
unrecovered amounts against any fee reduction payment and enrolment advance
payments due to the service under that Act after the service's transition
to the Child Care Management System.
Items 1 to 3 make amendments to the Child Care Management System Act, with
effect from 29 June 2007, to confirm the recovery of the excess of the
advance amount acquitted under section 219S of the Family Assistance
Administration Act as previously in force, and for related purposes.
Item 1 - At the end of item 93 of Schedule 1
Item 93 deals with application of amendments made to the Family Assistance
Act and the Family Assistance Administration Act by Part 1 of Schedule 1 of
the Child Care Management System Act. Generally, these amendments apply to
sessions of care provided by an approved child care service after the day
determined for this purpose by the Secretary under item 91 (the service's
'application day').
Item 1 inserts a note at the end of item 93 of Schedule 1 to inform the
reader that the relevant provisions of the Family Assistance Act and the
Family Assistance Administration Act as they were in force immediately
before the commencement of Schedule 1of the Child Care Management System
Act continue to apply to earlier sessions of care that were provided by an
approved child care service in a week starting before or on the service's
application day.
Item 2 - After item 96 of Schedule 1
Item 2 inserts new item 96A into Schedule 1. New item 96A creates a debt
out of an amount of the excess advance amount not offset as required by
section 219S of the Family Assistance Administration Act as previously in
force, before the service's 'application day'.
New subitem 96A(1) provides that new item 96A applies where:
. under section 219S of the Family Assistance Administration Act (as in
force before the commencement of this Schedule), a comparison is or
has been made between the amount of an advance determined by the
Secretary under section 219Q of the Family Assistance Administration
Act (as in force before the commencement of this Schedule) in respect
of the service and the period; and
. and the amount of the advance exceeds the amount passed on.
New subitem 96A(2) provides that where such a comparison results in an
excess amount that has not been offset (as required by section 219S of the
Family Assistance Administration Act, as in force before the commencement
of this Schedule), before the service's application day, that excess amount
becomes a debt due to the Commonwealth by the service. The date on which
the debt becomes due to the Commonwealth is either the service's
application day (if the comparison has already been made by that day) or,
if the comparison was made after a service's application day, the day on
which the comparison is actually made.
New subitem 96A(3) provides that any debt arising under new item 96A is
recoverable by one or more of the means set out in subsection 82(2) of the
Family Assistance Administration Act. This includes setting off the debt
amount against any fee reduction payment due to the service under sections
219Q, 219QA or enrolment advance payment under 219RA of the Family
Assistance Administration Act.
New subitem 96A(4) provides that in respect of any such debt, Division 4
(non- recovery of debts) of Part 4 of the Family Assistance Administration
Act applies, allowing the Secretary, for example, to write off or waive a
debt.
Item 3 - Before item 98 of Schedule 1
Item 3 inserts new item 97B. New subsection 97B(1) has the effect that if a
payment or payments are required to be made to a service as a result of a
comparison made under item 97 or section 219S of the Family Assistance
Administration Act (as in force before the commencement of this Schedule)
any debt arising under new item 96A or item 97 may be recovered by setting
off the amount of the debt against any of these payments. New subsection
97B(2) provides that such recovery is not limited by any of the debt
recovery methods set out in subsection 82(2) of the Family Assistance
Administration Act (as permitted under new subitem 96A(3)).
Division 2-Amendments commencing on 16 May 2009
Family Assistance Legislation Amendment (Child Care Management System and
Other Measures) Act 2007
Item 4 - At the end of item 96A of Schedule 1
The Family Assistance Legislation Amendment (Child Care Management System
and Other Measures) Regulations 2009 modified Schedule 1 of the Child Care
Management System Act by inserting item 97A under which adjustments of the
acquittals of advance amounts are made on or after 16 May 2009.
Item 4 inserts new subitems (5) and (6) into new item 96A (inserted by Item
2).
New subitem 96A(5) deals with the situation where an adjustment debt under
item 97A in respect of advances paid for a period before a service's
application day has occurred (after 16 May 2009) before a debt for the same
period is created as a result of new item 96A applying from 29 June 2007.
New subitem 96A(5) has the effect of discharging a debt created (later)
under item 96A in respect of a service and a particular period if a debt
has already been created under item 97A in relation to the same service and
the same period.
New subitem 96A(6) defines the term ' item 97A', to mean item 97A of this
Schedule as modified by Family Assistance Legislation Amendment (Child Care
Management System and Measures) Regulations 2009.
Items 5, 6 and 7 - Subitem 97B(1), Paragraph 97B(1)(a) of Schedule 1 and At
the end of item 97B of Schedule 1
Items 5, 6 and 7 are amendments consequential on the amendment made by item
4 of Division 2 of Part 1 of this Schedule.
Items 5 and 6 ensure that the provisions of new item 97B apply also to a
debt arising under item 97A (adjustment of acquittals). Item 97B (as
inserted by item 3 of Division 1 of Part 1 of this Schedule) provides that
where a payment is required to be made to a service as a result of a
comparison made under item 97 or under section 219S of the Family
Assistance Administration Act (as in force before the commencement of this
Schedule), any debt (arising from new item 96A or item 97) may be recovered
by setting off the amount of the debt against that payment. As a result of
the amendments made by Items 5 and 6, a debt arising under item 97A (after
16 May 2009) may be recovered by setting off that debt against the payment
required under item 97 or item 97A.
Item 7 inserts new subitem 97B(3). New subitem 97B(3) defines the term
item 97A, for the purposes of item 97B, to mean item 97A of this Schedule
as modified by Family Assistance Legislation Amendment (Child Care
Management System and Other Measures) Regulations 2009.
Part 2-Other provisions
Item 8 - Comparisons of amounts of advances and amounts passed on
These amendments relate to acquittals of advances made under subitem 97(2)
or 97A(2) of the Child Care Management System Act after commencement of
those items; that is, after 29 June 2007 and 16 May 2009, respectively.
Subitems 8(1) and 8(2) provide that any of the following things that an
officer (within the meaning of the Family Assistance Administration Act)
did before the commencement of Item 8 (that is, before the day of Royal
Assent), without authority from the Secretary, is taken always to have
applied as if the thing had been done by the Secretary:
. comparison of amounts described in subitem 97(2), or subitem 97A(2), of
Schedule 1 to the Family Assistance Legislation Amendment (Child Care
Management System and Other Measures) Act 2007 (that is, the acquittal
or adjustment of the acquittal of advance amounts under those items); or
. giving of notice purporting to be a notice of either a debt arising
under subitem 97(4), or subitem 97A(4), of that Schedule, or a payment
under subitem 97(5), or of subitem 97A(5), of that Schedule.
Subitem 8(3) defines the term, item 97A of Schedule 1 to the Family
Assistance Legislation Amendment (Child Care Management System and Other
Measures) Act 2007 (for the purposes of Item 8 of Part 2 of this amending
Schedule) to mean item 97A of Schedule 1as modified by Family Assistance
Legislation Amendment (Child Care Management System and Other Measures)
Regulations 2009 as in force at the commencement of this definition.
Schedule 6 - Transitional payments relating to the Child Care Management
System
Summary
Schedule 1 of the Child Care Management System Act provides for acquittals
of advance amounts that were paid to an approved child care service before
the service's transition to the Child Care Management System. The advance
amounts were paid to reimburse the service for the amount of CCB fee
reduction the service was required to make to the individuals eligible for
CCB by fee reduction.
This Schedule amends Part 2 of Schedule 1 of the Child Care Management
System Act to provide for an appropriation of funds for the purposes of a
payment required to be made to an approved child care service as a result
of an acquittal under Part 2 of Schedule 1 of that Act.
Background
Part 1 of Schedule 1 of the Child Care Management System Act amended the
Family Assistance Administration Act, with effect from 29 June 2007, to
provide for the introduction of the Child Care Management System.
The Family Assistance Administration Act, as in force before the
amendments, provided for the payment to approved child care services of
quarterly advance amounts to reimburse the services for the amount of CCB
fee reduction the services were required to make to the individuals using
the service who were eligible for CCB by fee reduction. The advance amounts
paid for a quarter were acquitted after a service submitted a report
relating to fee reductions made by the service in that quarter. The advance
amounts were acquitted by determining the difference between the amount of
advance paid to the service and the amount of fee reductions provided by
the service for that quarter. If the amount of advance paid to the service
was less than the total amount of fee reductions made by the service during
the quarter, the amount of the difference was required to be paid to the
service.
As the quarterly advances were not available under the Child Care
Management System, the amendments made by Schedule 1 of the Child Care
Management System Act repealed the provisions relating to payment of
advances. However, Part 2 of that Schedule, dealing with transitional
arrangements, provided for acquittal of advance amounts paid to an approved
child care service for periods before its transition to the Child Care
Management Systems to be carried out after the service's transition to the
Child Care Management System (transitional acquittals). If, as a result of
such an acquittal, it is determined that the advance amount paid for a
quarter is less than the amount of fee reductions made by the service in
that quarter, subitems 97(5) and 97A(5) of Part 2 of Schedule 1 of the
Child Care Management System Act requires that the amount of the difference
be paid to the service.
While the Child Care Management System Act clearly authorises the payment
of the amounts resulting from the transitional acquittals, the Act itself
does not contain any specific appropriation provision.
For avoidance of doubt, this Schedule makes an amendment to the Child Care
Management System Act to insert an appropriation power relating to payments
resulting from the transitional acquittals.
Explanation of the changes
Family Assistance Legislation Amendment (Child Care Management System and
Other Measures) Act 2007
Item 1 - At the end of Part 2 of Schedule 1
Item 1 inserts new item 102 into Part 2 of Schedule 1. New item 102
provides for the appropriation of funds from the Consolidated Revenue Fund
for the purposes of making payments to services under this Part, that is,
in respect of acquittals occurring under this Part.
Item 2 - Application
Item 2 is an application provision. It provides that the amendment made by
Item 1 applies in relation to payments made on or after the commencement of
that item.