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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY ASSISTANCE LEGISLATION AMENDMENT
(JOBS FOR FAMILIES CHILD CARE PACKAGE) BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Education and Training, Senator the Hon Simon Birmingham)
FAMILY ASSISTANCE LEGISLATION AMENDMENT
(JOBS FOR FAMILIES CHILD CARE PACKAGE) BILL 2015
OUTLINE
The purpose of the Bill is to introduce key aspects of the Jobs for Families Child
Care Package announced in the 2015-16 Budget. The Bill will, through the
introduction of a new Child Care Subsidy (CCS), and enhancements to the operating
requirements of approved child care providers, support improved affordability,
accessibility and flexibility to child care for families and support families' engagement
with the workforce.
Recognising the needs of vulnerable and disadvantaged families, and the benefits
that a quality child care and early learning can have on children's early development,
the Bill also introduces the Additional Child Care Subsidy (ACCS). ACCS provides
improved and targeted support to those families who require it most, such as:
families with children at risk of serious abuse or neglect; families experiencing
temporary financial hardship; grandparent carers; parents seeking to return to work;
and low-income households.
The Bill comprises:
Schedule 1--Main Amendments
Amendments to the A New Tax System (Family Assistance) Act 1999 will improve
the affordability, accessibility and flexibility of child care for families through:
a new simpler Child Care Subsidy (CCS) to improve affordability. The CCS
will replace the current poorly targeted child care subsidies with the objective
of supporting parents who want to work or work more.
provisions for Additional Child Care Subsidy elements of the Child Care
Safety Net which will improve accessibility for disadvantaged or vulnerable
families.
Amendments to the A New Tax System (Family Assistance) (Administration) Act
1999 will improve the availability of flexible care arrangements to suit the needs of
families by ensuring greater access and choice in care options from a broader range
of service types (including for example provisions that could enable the capacity to
pay subsidies in future for care provided by nannies following the Nanny Pilot
Programme).
Schedule 2--Contingent and consequential amendments
This Schedule contains amendments contingent on the passage of other Bills
currently before Parliament.
This Schedule also contains provisions to ensure that related legislation such as the
A New Tax System (Goods and Services Tax) Act 1999, the Fringe Benefits
Assessment Act 1986 and the Income Tax Assessment Act 1997 align with the
changes to family assistance law through minor consequential amendments.
2
Schedule 3--other amendments
This Schedule contains amendments that commence on Royal Assent or from
1 July 2016. Among other matters, the Schedule enables the Secretary to reassess
service approvals at any time from 1 July 2016. Schedule 3 also closes enrolment
advances and allows for their recovery.
Schedule 4--Application, saving and transitional amendments
This Schedule contains provisions relating to: the cessation date of eligibility to CCB
and CCR and the commencement of CCS and ACCS; the saving of certain laws in
relation to CCB and CCR (to ensure, for example, that debts and reviews can
continue to be dealt with); and transitional provisions to enable existing claimants
and recipients to be eligible for CCS and for services to transition to the CCS system
from 3 July 2017.
FINANCIAL IMPACT STATEMENT
The measures in this Bill form part of the Government's $40 billion Jobs for Families
Child Care Package, which includes $3.2 billion of additional expenditure over the
forward estimates.
Jobs for Families legislative measure Funding Years
Child Care Subsidy $21 billion Over two years
from 2017-18
Additional Child Care Subsidy $178.3 million Over two years
from 2017-18
REGULATION IMPACT STATEMENT
The Regulation Impact Statement for the Jobs for Families Child Care Package
appears at the end of this explanatory memorandum (Attachment A).
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Table of Contents
Statement of Compatibility with Human Rights .......................................................... 5
NOTES ON CLAUSES ............................................................................................. 10
Schedule 1 - Main Amendments ............................................................................. 11
Schedule 2--Contingent and consequential amendments ....................................... 62
Schedule 3--Other amendments ............................................................................. 63
Schedule 4--Application, saving and transitional provisions .................................... 64
Attachment A--Regulation Impact Statement .......................................................... 66
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
FAMILY ASSISTANCE LEGISLATION AMENDMENT
(JOBS FOR FAMILIES CHILD CARE PACKAGE) BILL 2015
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Family Assistance Legislation Amendment (Jobs for Families Child Care
Package) Bill 2015 will introduce key aspects of the Jobs for Families Package that
was announced in the 2015-16 Budget. The objective of the Jobs for Families
Package is to help parents who want to work, or who want to work more, by
providing a simpler, more affordable, more flexible and more accessible child care
system. To support the implementation of the Jobs for Families Package, the
Australian Government has committed $3.2 billion.
The Bill proposes to introduce the Child Care Subsidy (CCS), a single, means-tested
subsidy that will be better targeted to provide more assistance to low to middle-
income families and to replace current child care payments. The CCS will be
supplemented by the Additional Child Care Subsidy (ACCS), in recognition that extra
support is needed for some disadvantaged and vulnerable children and the
significant benefits that quality child care and early learning can have on children's
early development. The ACCS will provide support for children at risk of abuse or
neglect, families experiencing temporary financial hardship, grandparent carers on
income support, parents seeking to return to work, low-income families and low
income families utilising child care in high cost services.
Human rights implications
The right to work
Article 6 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) requires that State Parties recognise the right to work, including through
developing policies and techniques to achieve steady economic, social and cultural
development and full and productive employment. This right goes to the core
objective of the Bill, to help parents who want to work, or who want to work more. It
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is estimated that the Package will encourage more than 230,000 families to increase
their involvement in paid employment.
The rights of parents and children
Article 3 of the Convention of the Rights of the Child (CRC) recognises that in all
actions concerning children, the best interests of the child shall be a primary
consideration. The Bill provides for a generous CCS that provides a higher rate of
assistance to low and middle income families compared to the current child care
assistance, and the supplementary ACCS that will increase the access of children to
quality child care. Early childhood education and care plays a vital role in the
development of Australian children and their preparation for school. Access to early
childhood education and care is also one of the most effective early intervention
strategies to break the cycle of poverty and intergenerational welfare dependence.
Additionally, ACCS payments will ensure vulnerable children have access to the
benefits of child care.
Article 18 of the CRC mandates that State Parties shall use their best efforts to
ensure recognition of the principle that both parents have common responsibilities
for the upbringing and development of the child, and to provide appropriate
assistance, in particular to ensure that children of working parents have the right to
benefit from child care services and facilities for which they are eligible. This Bill will
support the introduction of a simpler, more affordable, more flexible and more
accessible child care system.
Article 19 of the CRC requires that appropriate measures are taken to protect the
child from all forms of physical or mental violence, injury or abuse, neglect or
negligent treatment, maltreatment or exploitation. The Article also requires that
measures be taken to identify, report, refer, investigate, treat and follow-up any
instances of abuse. Under the Bill, if an individual or child care provider is eligible for
the ACCS at risk payment, the provider must make the Secretary and / or State and
Territory authorities aware of the child's circumstances. This information sharing is
considered a justifiable limitation on the right to privacy.
The right to an adequate standard of living
Article 27 of the CRC requires that State Parties recognise the right of every child to
a standard of living adequate for the child's physical, mental, spiritual, moral and
social development. The Bill advances this right through the CCS and the ACCS
which will address barriers to accessing childcare to ensure all children, regardless
of parental income, have access to an adequate amount of child care to aid
socialisation and development.
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The right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. Under the
Bill all families who meet basic eligibility criteria will be eligible for some fee
assistance through the CCS, so long as they also meet an activity test. Additionally,
children at risk, families experiencing temporary financial hardship and families
transitioning from income support to work will be eligible for further support through
ACCS payments that will ensure all children have access to an adequate child care,
regardless of circumstances.
The right to be not discriminated against
Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and
Article 2 of the CRC requires that persons are equal before the law and that the law
shall provide equal and effective protection against discrimination on any grounds.
The Bill sets out a range of eligibility criteria for the CCS and the ACCS in relation to
age of the child, residency requirements, immunisation status of children and for
grandparents.
Using a child's age as a criterion to determine eligibility is considered legitimate
differential treatment as those children 13 and under are particularly vulnerable and
require close care and supervision on a constant basis, compared with older
children.
Using residency requirements as a criterion to determine eligibility is a proportionate
limitation on the right to be free from discrimination, because it is important for the
Secretary to reconcile payments against residents' tax assessment information,
noting also that residency requirements are not applied to children at risk of abuse or
neglect, in relation to whom a provider can be eligible for ACCS regardless of the
child's residency status.
Using immunisation status as a criterion to determine eligibility is legitimate
differential treatment as Article 14 of the CRC allows for limitations on one's freedom
to beliefs when it is necessary to protect public health and safety in a facility
responsible for the care or protection of children. The immunisation eligibility criterion
is a necessary limitation to encourage parents to better protect children from
diseases. The exemption on medical grounds constitutes a safeguard to protect the
individual safety of the child.
The ACCS (grandparents) payment is considered legitimate differential treatment as
it is a special measure intended to further support a group who are already
vulnerable and in receipt of income support. This payment is also an early
intervention strategy to break the cycle of poverty and intergenerational welfare
dependence by providing disadvantaged families with adequate access to child care.
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The right to be presumed innocent
Article 14 of the ICCPR requires that in the determination of any criminal charge,
everyone shall be entitled to a set of minimum guarantees and that anyone convicted
will have the right to review and compensation if the conviction is not upheld. Under
the Bill there are both civil penalties and criminal penalties. These penalties are part
of a multi-pronged approach to further deter fraud and ensure the integrity of
payments, and also protect children from harm, in line with obligations under Article
19 of the CRC. The Bill adheres to these minimum guarantees and allows for
anyone charged with a penalty to seek a review.
Article 14 of the ICCPR also requires that anyone charged with a criminal offence
shall have the right to be presumed innocent until proved guilty according to the law.
Under the Bill there are strict liability offences that apply to factual scenarios. These
offences are proportionate to the value of maintaining adequate safeguards in
relation to public money. It is considered reasonable in these cases to impose strict
liability offences to ensure the integrity of payments. It is intended that prosecution
action will only be taken in relation to strict liability offences in serious or repeated
cases.
The right to privacy
Article 17 of the ICCPR and Article 16 of the CRC requires that no one shall be
subject to arbitrary or unlawful interference with privacy. Under the Bill, as part of
administering the CCS and the ACCS, information will be collected and stored on a
new IT system that will be built to meet legislative requirements. This information
collection and storage will be subject to the Privacy Act 1988 as well as the existing
and stringent secrecy provisions in the family assistance law.
Under the Bill, if a child care provider is suspected of breaching obligations that are
subject to monitoring powers, the Secretary may deem it necessary to visit the
facility without advising the operator beforehand of its intention to do so. However,
the provider retains their right to refuse to allow entry (such a refusal can only be
overcome through the issue of a warrant). This limitation of the providers' and clients'
right to privacy is in response to the Australian National Audit Office finding that the
Australian Government is losing an estimated $700 million a year on misleading or
fraudulent child care practices. Given the scale of the breaches this interference is
not considered arbitrary, but a reasonable and proportionate response to protect
Government expenditure and uphold the integrity of payments.
Conclusion
The Bill is compatible with human rights. The current system is complex and difficult
for families to navigate. It is inflexible and does not effectively meet families'
workforce participation needs. The Bill supports and advances articles under the
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ICCPR, the CRC and the ICESCR which will ultimately enable parents who wish to
work, or to work more, by providing a simpler, more affordable, more flexible and
more accessible child care system. To the extent that the proposed Bill may limit
some rights, those limitations are reasonable, necessary and proportionate.
Senator the Hon Simon Birmingham, Minister for Education and Training
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FAMILY ASSISTANCE LEGISLATION AMENDMENT
(JOBS FOR FAMILIES CHILD CARE PACKAGE) BILL 2015
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
ACCS means Additional Child Care Subsidy;
ATI means adjusted taxable income;
CCB means Child Care Benefit;
CCR means Child Care Rebate;
CCS means Child Care Subsidy;
Family Assistance Act means the A New Tax System (Family Assistance)
Act 1999;
Family Assistance Administration Act means the A New Tax System
(Family Assistance) (Administration) Act 1999;
JETCCFA means Jobs, Education and Training Child Care Fee Assistance;
National Law means the Education and Care Services National Law Act
2010 (Vic) (and equivalent legislation in other State and Territory
jurisdictions).
Clause 1 sets out how the new Act proposed by this Bill is to be cited - that is, as
the Family Assistance Legislation Amendment (Jobs for Families Child Care
Package) Act 2015.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the new Act.
Clause 3, for the avoidance of doubt, provides that each Act that is specified in a
Schedule is amended or repealed as set out in that Schedule.
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Schedule 1 - Main Amendments
Summary
Schedule 1 contains the main amendments of this Bill, which are effective to:
Cease Child Care Benefit (CCB) and Child Care Rebate (CCR);
Introduce, from 1 July 2017, a new Child Care Subsidy (CCS), which is
subject to both an income and activity test;
Introduce various rates of Additional Child Care Subsidy (ACCS) that are
available to individuals (and in one case, child care providers) in various
circumstances;
Make other amendments to deal with CCS and ACCS claims, reviews of
decisions, provider approvals and compliance obligations of approved
providers of child care services.
Background
Prior to the amendments proposed by this Schedule, the Family Assistance Act
provided the eligibility criteria and method for calculating rates for the CCB and the
CCR. The Family Assistance Administration Act provides for procedural matters
relating to these payments, such as making claims, determinations of entitlement,
how payment is made, recovery of overpayments and review of decisions. It also
provides for a process for child care services to be approved to receive child care
payments on behalf of families and places obligations on approved child care
services.
Prior to these reforms, further fee assistance for child care is provided through the
Jobs, Education and Training Child Care Fee Assistance (JETCCFA). This payment
is available to eligible parents undertaking an approved activity. The payment is not
made under the Family Assistance Act. However, the amount of JETCCFA received
by families is taken into account when calculating entitlement for the CCR and has
been part of the existing complex child care payment system.
In the 2015-16 Budget, the Australian Government announced a package of
measures to simplify and strengthen the child care system and to ensure greater
incentives for parents to work. This included replacing existing child care payments
with a new payment, the CCS.
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The Child Care Safety Net will provide additional targeted assistance to genuinely
disadvantaged or vulnerable families. One of the components of the Child Care
Safety Net is ACCS, which provides additional assistance to:
children at risk of serious abuse or neglect;
families experiencing temporary financial hardship;
families transitioning to work from income support;
grandparent carers on income support; and
low income families in certain circumstances.
This Schedule amends the Family Assistance Act and the Family Assistance
Administration Act to replace CCB and CCR with CCS and ACCS. It also replaces
the current approval process for child care services with a more streamlined process
that more clearly distinguishes between the approved provider and the services they
operate, consistent with the approach taken in the Education and Care Services
National Law Act 2010 (Vic) (the National Law).
The amendments made by this Schedule commence on 1 July 2017 (noting that
other Schedules of this Bill commence earlier).
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Explanation of the changes
Amendments to the Family Assistance Act
Definitions
Items 1, 3, 10, 12, 16, 19, 21, 25 and 26 repeal definitions relating to CCB and CCR
that are not needed for CCS and ACCS.
Items 2, 4, 7, 9, 13, 15, 20 and 22 insert new definitions of key terms, which will be
used in provisions relating to CCS and ACCS.
Items 5, 6, 17, 24 and 26 amend various definitions by substituting references to
CCB and CCR with references to CCS and ACCS.
Item 6 also removes reference to subsections 24(4) and (6) from the definition of
"FTB child" for child care purposes.
The previous reference to subsections 24(4) and (6) in the definition of FTB child for
child care purposes was intended to ensure that an individual's maximum period of
eligibility for CCB when an individual is absent from Australia aligned with an
individual's maximum period of eligibility for family tax benefit. This outcome is now
achieved more directly through a new provision (section 85EE inserted by item 40),
which specifies a maximum period of eligibility for CCS or ACCS during an
individual's absence from Australia.
The definition of FTB child for child care purposes otherwise retains its link to FTB
child as defined for family tax benefit purposes, including by aligning with the
meaning in section 22 of the Family Assistance Act.
Item 8 substitutes the definition of "lower income threshold" to refer to subclause
3(4) of Schedule 2 of the Family Assistance Act and item 23 substitutes the
definition of "upper income threshold" to also refer to that subclause. The new
definitions reflect the income thresholds applicable to CCS, which are different from
the income thresholds that applied to CCB. The low income threshold is the
household income point below which families are able to receive 85 per cent of the
hourly fee cap through CCS--that percentage tapers to 20 per cent at the upper
income threshold. There are also amendments at items 20 and 22 to refer to the
intermediate thresholds "second income threshold" and "third income threshold"
which are the income levels at which the applicable percentage of CCS tapers from
85 per cent to 50 per cent and from 50 per cent to 20 percent, as described in more
detail below in relation to clause 3 of Schedule 2 to the Family Assistance Act.
Items 11, 28 and 29 amend the definition of "paid work". This definition applies for
family tax benefit purposes. References to paid work in CCB provisions were
excluded from the scope of the definition. The amendments remove references to
CCB provisions that are repealed, and add references to CCS provisions that refer to
paid work to exclude those CCS provisions from the scope of the definition.
13
Item 14 substitutes paragraph (b) of the definition of "receiving". This paragraph
modifies the concept of receiving under the Social Security Act 1991 for provisions in
the Family Assistance Act that use the term "receiving" in relation to a social security
payment. The amendment removes references to CCB provisions that are repealed,
and adds reference to new section 85CJ, which refers to social security payments.
Reference to new section 85CK, which also refers to social security payments, has
not been included in the definition at paragraph (b) because the modification of the
definition of "receive" for social security purposes is not intended to apply in that
section. The modification deems an individual to be receiving a social security
payment for a period of 12 weeks from when their rate reduces to nil due to
employment income. If the modification was applied in section 85CK individuals
would have access to two 12 week transition payments when they start earning
employment income, which is not intended.
Item 27 substitutes subsection 3AA(1) to remove references to CCB provisions that
are repealed and to add in references to CCS provisions.
Immunisation rules
Item 30 substitutes the reference to CCB in paragraph 6(1)(a) with a reference to
individual eligibility to CCS in paragraph (a), and provider eligibility to ACCS (at risk)
in paragraph (aa). This is so the immunisation requirements in section 6 of the
Family Assistance Act apply for the purposes of determining an individual's eligibility
for CCS, and providers' eligibility for ACCS (at risk).
Various interpretative provisions
Item 31 substitutes the reference to CCB in subsection 8(1) with a reference to CCS.
Section 8 of the Family Assistance Act allows the Secretary to determine that an
individual who is not an Australian resident is taken to be an Australian resident for
CCS purposes.
For CCB, a determination under section 8 was required to comply with guidelines
determined by the Minister by legislative instrument. Item 32 makes amendments
so these guidelines are contained in the Minister's rules (which are intended to be
made as a single compilation), rather than in a separate legislative instrument.
Item 33 repeals sections 10 to 18 and substitutes a new section 10.
New section 10 reflects repealed sections 10 and 11, with some modifications to
address an anomaly that existed in repealed section 10 and to clarify the intended
effect of the section.
The basic rule in new subsection 10(1) is that, for family assistance purposes, an
approved child care service does not provide a session of care to a child unless the
child is enrolled for care by the service and the child physically attends the service.
Subsections (2), (3) and (4) specify circumstances in which a child is taken to have
attended a session of care, even where they do not physically attend. There is also
a power for the Minister to specify rules to ensure that there are certain days on
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which a child is definitely not to have been taken to have attended during a physical
absence (paragraphs (2)(iv) and (3)(iv).
Under new subsection 10(1)(a) an approved child care service is taken to have
provided a session of care to a child if the child attends part of the session of care.
New subsections 10(2) and (3) allow a child to be taken to attend a session of care
in certain circumstances. Subsection 10(2) deals with when a session of care is
taken to have been provided for up to 42 days in a single financial year (the initial 42
absences) and subsections 10(3) and (4) deal with the circumstances in which,
following the initial 42 absences, it is still possible for a child to be taken to have
attended a session of care (such as due to illness). The initial 42 absences limit
applies per child. On the day the child does not attend, if CCS or ACCS would not
have been paid even if the child had attended (for example, because the fortnightly
limit of hours had already been reached), the day does not count towards the initial
42 absences limit.
Both subsection 10(2) and (3) require the session of care to occur on a day that is
after the day the child first attended a session of care provided by the service and
before the day the service permanently ceased providing care to the child. This
means the child must have physically attended a session of care at the service
before subsection 10(2) or 10(3) can be relied on, and absence days under
subsection 10(2) or 10(3) will not be available on and after the day the service
permanently ceased providing care to the child. Subsection 10(5) clarifies that a
service permanently ceases to provide care to a child on the day the child last
physically attends a session of care provided by the service.
Repealed section 11 is no longer relevant as occasional care is not a distinct service
type for CCS. Repealed section 12 is no longer relevant as there will not be
registered carers for CCS.
Repealed section 13 allowed the Secretary to specify a day that would otherwise not
be a school holiday as a school holiday for the purposes of the definition of school
holiday session. The repeal of section 13 is consequential to the repeal of the
definition of "school holiday session" by item 19.
Repealed section 17A provided activity requirements for CCB. The activity
requirements for CCS will be in Part 5 of Schedule 2 of the Family Assistance Act.
Repealed section 18 was only used in relation to the schooling % in the CCB rate
calculator. This definition is no longer required as there is no schooling % for CCS.
Eligibility and rate of family assistance
Item 34 amends the heading of Part 3 and item 38 amends the heading of Part 4.
These amendments are consequential to the structural change made by items 35,
39 and 40.
Item 35 repeals Divisions 4 and 5 of Part 3, which provide eligibility criteria for CCB
and CCR. Item 39 repeals Divisions 4 and 4A of Part 4, which provide for the rate of
15
CCB and CCR. New Part 4A inserted by item 40 provides for eligibility and rate of
CCS and ACCS. This structural change places eligibility and rate provisions for CCS
and ACCS closer together.
Items 36 and 37 replace CCB and CCR references in subsection 57GI (note 2) and
section 57GQ with references to CCS and ACCS. The effect of this is that Division 7
of Part 3 of the Family Assistance Act, which provides for loss of family assistance
on security grounds, does not apply to CCS and ACCS.
New Part 4A - Child care subsidy
Item 40 inserts new Part 4A into the Family Assistance Act. This Part deals with
eligibility for and how to calculate the rate of CCS and ACCS. A simplified outline of
the Part is provided in section 85AA.
Section 85AB provides, without limitation, a statement of the Constitutional basis for
CCS and ACCS.
Eligibility for CCS
Section 85BA provides when an individual is eligible for CCS for a session of care
provided to a child by an approved child care service.
The definition in section 10 of the Family Assistance Act (as amended by item 33) is
relevant for determining whether a session of care is provided to the child.
If the session of care is provided, all the following requirements must be met at the
time the session is provided for the individual to be eligible for CCS for the session:
(i) the child is an FTB child, or regular care child, of the individual, or the
individual's partner;
(ii) the child is 13 years of age or under and does not yet attend secondary
school (that is, the child is not yet at school or attends primary school);
(iii) the child meets immunisation requirements;
(iv) the individual, or the individual's partner, meet the residency
requirements.
In addition, the individual, or the individual's partner, must have incurred a liability to
pay for the session of care under a written arrangement with the provider of the
service, and the session of care must satisfy all the following requirements:
(i) it is provided in Australia;
(ii) it is not part of a compulsory education programme in the State or
Territory where the care is provided;
(iii) it is not provided in circumstances prescribed in the Minister's rules
(for example, where family day care is provided in a "child-swapping"
arrangement).
Division 5 provides some limitations on eligibility. An individual is only eligible for
CCS for a session of care provided to a child if the individual, the child and the
session of care meet all the eligibility requirements described above, and Division 5
does not prevent the individual being eligible.
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FTB child and regular care child are concepts defined for family tax benefit that also
apply for CCS purposes (see definitions in s 3(1)).
The immunisation requirements are in section 6 of the Family Assistance Act. They
are the same as the immunisation requirements that apply for family tax benefit.
The residency requirements are in section 85BB. These are the same as the
residency requirements that apply to CCB.
Eligibility for ACCS (at risk)
Subsection 85CA(1) provides when an individual is eligible for ACCS (at risk) for a
session of care provided to a child by an approved child care service. ACCS (at risk)
provides a short term, higher rate of assistance than CCS in order to reduce the
possibility of the cost of child care being a barrier to children at risk of serious abuse
or neglect, from either entering or remaining engaged with, child care.
For individuals, CCS eligibility is a pre-requisite to ACCS eligibility. This means the
individual must be eligible for CCS for the session of care and meet additional
criteria to be eligible for ACCS (at risk) for the session of care.
The additional criteria for ACCS (at risk) is that an "at risk certificate" given by the
approved provider of the service (under section 85CB), or an "at risk determination"
made by the Secretary (under section 85CE), must be in effect in relation to the child
for the week in which the session of care is provided.
Even if these requirements are met, the limitations in Division 5 may prevent the
individual being eligible for ACCS (at risk).
Subsection 85CA(2) sets out when the approved provider of an approved child care
service is eligible for ACCS (at risk) for a session of care provided to a child.
An approved provider can only be eligible for ACCS (at risk) for a session of care if
the provider cannot identify an individual who is eligible for CCS for the session of
care--this is intended to ensure that provider eligibility is a last resort measure.
Other requirements which apply for an approved provider to be eligible for ACCS (at
risk) reflect those which apply to individuals:
the child must be 13 or under and not yet attending secondary school
(that is, the child must not yet be at school or be attending primary school)
at the time the session of care is provided;
the child must meet immunisation requirements at the time the session of
care is provided;
the session of care must meet CCS eligibility criteria (i.e. provided in
Australia, not part of a State/Territory compulsory education program and
not provided in circumstances prescribed in the Minister's rules);
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an "at risk certificate" or an "at risk determination" must be in effect in
relation to the child for the week in which the session of care is provided;
and
the provider must not be prevented from being eligible under Division 5.
Subject to amendments to immunisation requirements in the Social Services
Legislation Amendment (No Jab, No Pay) Bill 2015 coming into effect, the
requirement for the child to meet immunisation requirements at the time the session
of care is provided will also apply for provider eligibility (see contingent amendments
in Schedule 2 of this Bill).
Subsection 85CA(3) enables the Minister's rules to prescribe circumstances in
which a child is, or is not taken to be, at risk of serious abuse or neglect.
The power to prescribe these circumstances has been delegated to the Minister to
ensure that there is an ability for the law to favourably adapt to changes in the
understanding and definition of "abuse" and "neglect" going forward. The rules will
specify the criteria which must be met in order to certify/determine a child to be at
risk of serious abuse or neglect, and provide guidance to providers to ensure that "at
risk" assistance is targeted to those children who are genuinely at risk of serious
abuse or neglect. The rules will be made after having regard to "risk" criteria used by
each State/Territory.
Section 85CB provides when the approved provider of an approved child care
service can issue an "at risk certificate", what it must contain and when it takes
effect.
An approved provider can give an "at risk certificate" if it considers that a child is at
risk of serious abuse or neglect.
The certificate must:
be given in a form and manner approved by the Secretary;
contain the information, and be accompanied by the documents, required by
the Secretary;
specify the day it takes effect and the weeks for which it has effect;
identify the child and the service to whom it relates; and
include any other matters prescribed by the Secretary's rules.
The day the certificate takes effect must be a Monday that is no earlier than 28 days
before the day it is given. Each week for which the certificate has effect must include
at least one day when the child is at risk of serious abuse or neglect.
For each child, "at risk certificates" given by the approved provider in relation to a
particular service cannot be in effect for more than 6 weeks in any 12 month period.
The approved provider is not able to give an "at risk certificate" if it would result in
more than a specified percentage of the children cared for by the service in relation
to which the certificate is given being at risk on any one day. The specified
percentage is 50%. A different percentage can be specified in the Secretary's rules,
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and in exceptional circumstances the Secretary can determine a different percentage
for a particular service. Subsection (6), which clarifies that a determination of a
different percentage under paragraph (4)(c) is not a legislative instrument, is merely
declaratory and included to assist readers. It is not an exemption from the
Legislative Instruments Act 2003.
Subsection (5) enables the Minister's rules to specify other circumstances when a
certificate given by a provider is not effective.
Certificates issued by approved providers will include "protected Information" as
defined by section 3 of the Family Assistance Administration Act and, as such, that
information will be protected by safeguards offered by those secrecy rules, including
though exposing a person who misuses that information to an offence (e.g. sections
162 to 167).
If an approved provider considers a child to be at risk and is unable to give an
effective certificate, the provider may apply under section 85CE for a determination
by the Secretary that the child is at risk of serious abuse or neglect.
Section 85CC requires an approved provider to cancel an "at risk certificate" they
have given if they no longer consider the child to be at risk during a week for which
the certificate has effect. However, if any of the weeks for which the certificate has
effect is a week for which the time for updating or withdrawing a report under
subsection 204B(6) has expired, the provider cannot cancel the certificate under this
section. Instead, the Secretary will need to take action to cancel or vary the
certificate under section 85CD. The time limit on provider cancellation of certificates
is intended to limit the extent to which providers can backdate information on which
ACCS entitlement is based without intervention by the Secretary.
Section 85CD allows the Secretary to vary or cancel an "at risk certificate" given by
an approved provider if the Secretary is not satisfied the child to whom the certificate
relates is at risk during a week for which the certificate has effect. Notice of the
variation or cancellation must be given to the approved provider and takes effect
from the day specified in notice. In exercising this power, the Secretary may rely on
any source of information available to the Secretary, including, but not limited to,
information approved providers are required to provide under section 67FC of the
Family Assistance Administration Act.
The power to cancel or vary certificates will be delegated to officers with appropriate
seniority.
Section 85CE provides that the Secretary may make a determination that a child is
at risk of serious abuse or neglect on application by an approved provider.
An approved provider can apply for an "at risk determination" in respect of a child if
the provider considers the child is or was at risk of serious abuse or neglect at the
time care was provided and the provider is unable to give an "at risk certificate"
under section 85CB. The application must be in the form and manner approved by
the Secretary. It must also contain the information and be accompanied by the
documents required by the Secretary. The provider must have also given notice to
19
the relevant State/Territory body that they consider the child to be at risk of serious
abuse or neglect prior to seeking a determination by the Secretary.
The Secretary must make a decision on the application within 28 days of receiving
the application. Subsection (4), states that if the Secretary does not make a
decision, the application is taken to be refused--however this provision is included to
deal with the unlikely event that the Secretary does not meet the obligation in
subsection (3) to clarify the status of the application in that event. The Secretary will
make every effort to deal with applications in a timely manner. A deemed refusal is
reviewable (at internal review and the AAT), but the Secretary is not required to give
notice of the deemed refusal.
If the Secretary decides to determine the child to be at risk, the determination must
specify the date it takes effect, which must be a Monday not more than 28 days
before the date the application was made. The determination must also specify the
weeks for which it is in effect. Each week for which the certificate has effect must
include at least one day when the child is at risk. While a determination is in effect
under this section, if the Secretary is satisfied the child will continue to be at risk after
the determination ceases to have effect, the Secretary can make another
determination to take effect immediately after the current determination ceases.
Each determination cannot be in effect for more than 13 weeks. Notice of the
determination must be given to any person affected by the determination.
Subsection (7) clarifies that a determination under this section is not a legislative
instrument. It is merely declaratory and included to assist readers. It is not an
exemption from the Legislative Instruments Act 2003.
If the Secretary refuses an application under this section, the Secretary must give
the provider and any other affected person notice of the decision. The refusal is a
reviewable decision.
Section 85CF allows the Secretary to vary or revoke an "at risk determination" if the
Secretary is no longer satisfied the child to whom the determination relates is at risk
for a week when the determination has effect. The variation or revocation takes
effect from the day specified in the notice of revocation or variation. The Secretary
must give the provider and any other affected person notice of the decision.
Eligibility for ACCS (temporary financial hardship)
Subsection 85CG(1) provides when an individual is eligible for ACCS (temporary
financial hardship) for a session of care provided to a child by an approved child care
service. ACCS (temporary financial hardship) provides a higher hourly rate of
assistance than CCS in order to reduce the possibility that children, who are already
engaged in mainstream child care, do not reduce or withdraw their involvement due
to the cost because an exceptional circumstance or event has compromised a
family's short-term financial situation and thus their capacity to pay child care fees.
CCS eligibility is a pre-requisite to ACCS eligibility. This means the individual must
be eligible for CCS for the session of care and meet additional criteria to be eligible
for ACCS (temporary financial hardship) for the session of care.
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The additional requirement for ACCS (temporary financial hardship) is that a
determination of temporary financial hardship must be in effect in relation to the child
when the session of care is provided.
Even if these requirements are met, the limitations in Division 5 may prevent the
individual being eligible for ACCS (temporary financial hardship).
Subsection 85CG(2) enables the Minister's rules to prescribe circumstances in
which an individual is taken to be experiencing temporary financial hardship. The
power to prescribe these circumstances has been delegated to the Minister to
ensure there is an ability for the law to favourably adapt to unforeseen
circumstances.
Section 85CH provides that the Secretary may make a determination of temporary
financial hardship in relation to a child on application by an individual.
The Secretary may make such determination on her own initiative, including on a
class basis, or in response to applications.
Where an individual makes an application for a determination under this section, the
application must be in a form and manner approved by the Secretary. It must
contain the information, and be accompanied by the documents, required by the
Secretary. The Secretary must make a decision on the application within 28 days of
receiving the application.
If the Secretary makes a temporary financial hardship determination, it must take
effect on a Monday not more than 28 days before the date the application was made,
or 28 days before the determination where there was no application, and must be in
effect for a whole number of weeks. The number of weeks the determination is in
effect cannot exceed 13, reflecting that this assistance is intended to be short-term in
nature. ACCS (temporary financial hardship) cannot be determined in relation to
more than 13 weeks for a particular reason.
Subsection (8) clarifies that a determination under this section is not a legislative
instrument. It is merely declaratory and included to assist readers. It is not an
exemption from the Legislative Instruments Act 2003.
If the Secretary refuses an application under this section, the Secretary must give
the individual and any other affected person notice of the decision. The refusal is a
reviewable decision.
If the Secretary does not make decision within 28 days of receiving the application,
the Secretary is deemed to have refused the application. This provision is not
intended to be relied on--it has been included simply to ensure that the status of an
application in this unusual circumstance is clear. The Secretary will make every
effort to deal with applications in a timely fashion. A deemed refusal is reviewable,
but the Secretary is not required to give notice of the deemed refusal.
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Section 85CI allows the Secretary to vary or revoke a temporary financial hardship
determination if the Secretary is no longer satisfied the individual concerned is or
was experiencing temporary financial hardship for a week when the determination
has effect. The variation or revocation takes effect from the day specified in the
notice of variation or revocation. The Secretary must give the notice to the individual
concerned and any other affected person.
Eligibility for ACCS (grandparent)
Section 85CJ provides for when an individual is eligible for ACCS (grandparent) for
a session of care provided to a child by an approved child care service. ACCS
(grandparent) provides a higher hourly rate of assistance than CCS for eligible
grandparents in order to reduce the possibility of the cost of mainstream child care
being barrier to a child in their care from either entering or remaining engaged with,
child care.
CCS eligibility is a pre-requisite to ACCS eligibility. This means the individual must
be eligible for CCS for the session of care and meet additional criteria to be eligible
for ACCS (grandparent) for the session of care.
The additional criteria for ACCS (grandparent) include that: the individual or their
partner is a grandparent or great-grandparent of the child; at the start of the CCS
fortnight in which the session of care is provided, they are the primary carer for their
grandchild (have 65% or greater care); and the individual or their partner is receiving
an income support payment as listed in paragraph 85CJ(1)(d).
Subsection (3) requires adoptive and step parent relationships to be treated as
biological relationships when determining whether an individual is a grandparent or
great-grandparent of a child. Subsection (4) defines the terms adoptive parent and
step-parent used in subsection (3).
Even if these requirements are met, the limitations in Division 5 may prevent the
individual being eligible for ACCS (grandparent).
Eligibility for ACCS (transition to work)
Section 85CK provides when an individual is eligible for ACCS (transition to work)
for a session of care provided to a child by an approved child care service. ACCS
(transition to work) provides a higher rate of assistance than CCS and is intended to
support families to meet the costs of child care where an eligible parent is
undertaking approved work, training or study activities that will support an increased
workforce engagement.
CCS eligibility is a pre-requisite to ACCS eligibility. This means the individual must
be eligible for CCS for the session of care and meet additional criteria to be eligible
for ACCS (transition to work) for the session of care.
The additional requirements for ACCS (transition to work) include that, at the start of
the CCS fortnight in which the session of care is provided, the individual is receiving
22
a transition to work payment (as set out in subsection (3)) and meets any other
requirements specified in the Minister's rules.
Except where the transition to work payment is a payment prescribed in the
Minister's rules, the individual is required to also have an employment pathway plan
or a participation plan in effect at the start of the CCS fortnight in which the session
of care is provided.
When the individual stops receiving a transition to work payment, the individual
continues to be eligible for ACCS (transition to work) for all sessions of care for
which the individual is eligible for CCS that are provided in the period of 12 weeks
from the start of the CCS fortnight after the CCS fortnight in which the individual
stops receiving the transition to work payment.
Even if these requirements are met, the limitations in Division 5 may prevent the
individual being eligible for ACCS (transition to work).
Eligibility in substitution for a deceased person
Section 85DA applies when an individual dies in circumstances where an amount of
CCS or ACCS for which the individual was eligible has not been paid. In those
circumstances, another individual can become eligible in substitution for the
individual who has died, if the other individual makes a claim in accordance with Part
3A of the Family Assistance Administration Act, and the Secretary considers the
other individual ought to be eligible for the unpaid amount. Only unpaid amounts
relating to sessions of care provided after the start of the income year before the
income year in which the individual died can be paid in substitution to another
individual.
Example: if David died on 1 August 2019 (i.e. in the 2019-20 income year), only
unpaid amounts relating to sessions of care provided on or after 1 July 2018 can be
paid in substitution.
Limitations on eligibility for CCS and ACCS
Section 85EA prevents more than one individual being eligible for CCS for the same
session of care (for instance, two parents of the same child). If more than one
individual meets the eligibility criteria for CCS for a session of care, the individual
determined in writing by the Secretary under subsection 85EA(2) will be the eligible
individual. This section reflects repealed section 48, which applied for CCB.
As eligibility for CCS is a pre-requisite for an individual to be eligible for ACCS, this
section also prevents more than one individual being eligible for ACCS for the same
session of care.
Subsection (3) clarifies that a determination under this subsection (2) is not a
legislative instrument. It is merely declaratory and included to assist readers. It is not
an exemption from the Legislative Instruments Act 2003.
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Section 85EB prevents an individual being eligible for more than one type of ACCS
for the same session of care.
The section establishes the following order of hierarchy:
1. ACCS (at risk)
2. ACCS (grandparent)
3. ACCS (temporary financial hardship)
4. ACCS (transition to work).
Note that ACCS (transition to work) does not need to be listed in this section, as only
the ACCS types that can take priority over another need to be listed for it to operate
to produce the hierarchy listed above.
Where an individual is eligible for more than one type of ACCS for a session of care,
the type of ACCS higher up in the hierarchy takes precedence.
Example: if Odetta is eligible for ACCS (at risk) and also eligible for ACCS
(temporary financial hardship) for a session of care, she is taken to be eligible for
ACCS (at risk) and not eligible for ACCS (temporary financial hardship) for that
session of care.
Section 85EC prevents more than one individual being eligible in substitution for the
same unpaid amount under section 85DA when an individual dies.
Section 85ED prevents CCS and ACCS eligibility for a session of care provided to a
child who is under the care of a person (other than a foster parent) under a State or
Territory child welfare law. The purpose of this is to ensure that the Commonwealth
does not financially support care that is financed by another level of government.
It also prevents CCS and ACCS eligibility for a session of care provided to a child
who a member of a class prescribed by the Minister's rules. This section reflects
repealed section 49, which applied for CCB. The rules will allow the Minister to
ensure that care arrangements considered to be designed to exploit the child care
payment system (such as where a family day carer places their own child in the care
of another family day carer) cannot entitle an individual to payments of CCS.
Section 85EE limits the period for which an individual can be eligible for CCS or
ACCS while they are overseas and details the circumstances in which the Secretary
may extend the period. This mirrors the effect of existing family tax benefit
provisions.
Amount of CCS and ACCS
Section 85FA requires an individual's amount of CCS for a week to be worked out
under Part 1 of Schedule 2.
Sections 85FB and 85FC require an individual's amount of ACCS for a week to be
worked out under Part 2 of Schedule 2 for sessions of care for which the individual is
eligible for ACCS (at risk), ACCS (temporary financial hardship) or ACCS
(grandparent) and Part 3 of Schedule 2 for sessions of care for which the individual
is eligible for ACCS (transition to work).
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Section 85FD requires a provider's amount of ACCS (at risk) for a week for a child
to be worked out under Part 4 of Schedule 2.
Miscellaneous
Section 85GA provides legislative authority for Commonwealth grants for purposes
related to child care, where the expenditure is consistent with the constitutional
heads of power listed in subsection (1)(b).
Section 85GB enables the Minister to make the Minister's rules and enables the
Secretary to make the Secretary's rules.
New Schedule 2 - Amounts of CCS and ACCS
Item 41 repeals and substitutes Schedule 2 of the Family Assistance Act. Repealed
Schedule 2 contained the rate calculator for CCB. New Schedule 2 is the rate
calculator for CCS and ACCS.
Calculations are based on weeks in a CCS fortnight (but payments can be made
weekly).
A CCS fortnight is defined in subsection 3(1) of the Family Assistance Act as the
2 week period beginning on Monday 3 July 2017 and each subsequent two week
period. CCS fortnights are fixed for everyone, with the first CCS fortnight being
3 July 2017 to 16 July 2017, the second CCS fortnight being 17 July 2017 to 30 July
2017, the third CCS fortnight being 31 July 2017 to 13 August 2017 and so on.
For CCS and ACCS, a week is defined in subsection 3(1) of the Family Assistance
Act to always commence on a Monday. The term "week" was defined in the same
way for CCB.
Part 1--Amount of CCS
Clause 1 contains a method statement for calculating an individual's amount of CCS
for a week for sessions of care provided by an approved child care service to a child.
The rate is calculated per week per child per service.
This means that if the child is attending two services, there will be two applications of
the rate calculator, one for sessions of care provided by the first service and one for
sessions of care provided by the second service. The amounts are intended to be
calculated in the order in which the services submit attendance reports under
section 204B of the Family Assistance Administration Act.
The method statement contains the following steps:
1. Work out the individual's activity test result in relation to the child for the CCS
fortnight in which the week occurs;
2. If the annual cap applies, work out whether the annual cap has been reached;
3. Identify all sessions of care provided by the service in the week to the child for
which the individual is eligible for CCS;
25
4. Work out the hourly rate of CCS for each session of care;
5. Work out the activity-tested amount of CCS for the sessions of care;
6. If the annual cap applies, adjust the activity-tested amount for the annual cap.
Step 1:
The activity test result is the maximum number of hours of CCS the individual and
their partner can be paid in a CCS fortnight for a child. This will usually depend on
the amount of activity the individual and their partner engage in during the CCS
fortnight. There are some exceptions explained below under "Part 5 - Activity Test".
If the activity test result is zero, the individual's CCS amount for the week is nil, and
the other steps in the method statement are not applied. If the activity test result is
more than zero, the calculation proceeds to step 2.
Step 2:
The annual cap is the maximum amount of CCS an individual and their partner can
receive for a child for CCS fortnights starting in the income year if their combined
adjusted taxable income (ATI) for the income year is greater than the annual cap
threshold (see subclauses 1(2) and (3)). For the 2017-18 income year the annual
cap threshold is $185,710. The threshold is subject to annual indexation.
If the combined ATI is at or below the annual cap threshold, there is no annual cap
and the calculation proceeds to step 3.
If the annual cap applies (i.e. combined ATI is greater than the annual cap
threshold), the calculation only proceeds to step 3 if the annual cap has not already
been reached in the income year. If the annual cap for the income year has been
reached, the individual's CCS amount for the week is nil, and the other steps in the
method statement are not applied.
Step 3:
The relevant sessions of care are identified by applying the eligibility criteria in
section 85BA to each session of care provided to the child by the service.
Step 4:
The hourly rate for each session of care identified in step 3 is determined by
applying clause 2. The hourly rate is the applicable percentage multiplied by the
lower of the hourly session fee and the CCS hourly rate cap.
The applicable percentage is worked out under clause 3 based on the combined
ATI of the individual and the individual's partner in the income year in which the CCS
fortnight starts. If the combined ATI is at or below the lower income threshold
(initially set at $65,710 prior to indexation), the applicable percentage is 85%. If the
combined ATI is above the lower income threshold but below the second income
threshold (of $170,710), the applicable percentage tapers from 85% to 50%, using
the formula at subclause (2). If the combined ATI is at or above the second income
threshold (of $170,710), but below the third income threshold (of $250,000) the
26
applicable percentage is 50%. If the combined ATI is above the third income
threshold (of $250,000) and below the upper income threshold (of $340,000), the
applicable percentage is calculated using the formula in subclause 3(3), which tapers
the applicable percentage down from 50% to 20%. Finally, if the combined ATI is
equal to or above the upper income threshold (of $340,000), the applicable
percentage is 20%. The effect of the formulas at subclauses (2) and (3) is to reduce
the applicable percentage at a rate of 1 percentage point for every $3000 to ensure a
consistent and graduated taper. Subclause (4) defines the various thresholds by
reference to a dollar figure above the lower income threshold of $65,710--this
means that the indexation of the lower income threshold against the consumer price
index will result in the higher threshold points shifting by the same amount.
The hourly session fee is defined in subclause 2(2) as the amount the individual or
the individual's partner is liable to pay for the session of care, divided by the number
of hours in the session, and reduced by the hourly rate of any other subsidy from
which the individual benefits in respect of the session (e.g. subsidy provided by a
State or Territory).
The CCS hourly rate cap depends on the type of service providing the session of
care (see subclause 2(3)). The CCS hourly rate caps are:
$11.55 for care provided by a centre-based day care service
$10.70 for care provided by a family day care service
$10.10 for care provided by an outside school hours care service
The rate prescribed by the Minister's rules for care provided by a service type
prescribed in the Minister's rules.
The ability to prescribe service types in the Minister's rules provides flexibility to add
more service types in the future without amendments to the Family Assistance Act.
Step 5:
To determine the activity tested amount under clause 4, for each session of care
identified in step 3, the hourly rate is multiplied by the number of hours in the session
of care that is counted for CCS purposes and the results for all sessions of care
identified in step 3 are added together.
The number of hours in a session of care that is counted for CCS purposes is the
lowest of the following amounts:
the number of hours in the session of care;
the balance of the activity test result worked out under subclause 4(2);
if the Secretary is satisfied it is appropriate to have regard to an election under
subclause 4(3), the number determined in accordance with the election.
The balance of the activity test result, in relation to a particular session of care, is the
activity test result worked out in step 1 reduced by:
the number of hours (if any) in the CCS fortnight for which the individual is
entitled to be paid CCS or ACCS in respect of the child;
27
if the individual is a member of a couple on each day in the CCS fortnight, the
number of hours (if any) in the CCS fortnight for which the individual's partner
is entitled to be paid CCS or ACCS in respect of the child; and
the number of hours in any earlier sessions of care identified in step 3.
This clause ensures that the number of hours for which the individual and their
partner are paid do not exceed the activity test result.
The election made under subclause 4(3) is intended to apply where a child attends
more than one service. The election enables individuals to nominate the proportion
of their subsidy that should be paid to each service. An election must be made in a
form and manner approved by the Secretary.
Step 6:
If the annual cap applies to the individual, and the activity tested amount when
added to the "total previous CCS" (as set out in subclause (3)) exceeds the annual
cap, the activity tested amount is adjusted so the activity tested amount, when added
to the total previous CCS, equals the annual cap. This essentially ensures that an
individual who is subject to the annual cap is only paid CCS up to that cap. The total
previous CCS is the sum of the amount of CCS the individual is entitled to receive for
the child for CCS fortnights starting in the income year and the amount of CCS the
individual's partner is entitled to receive for the child for CCS fortnights starting in the
income year.
In determining whether the annual cap is reached in Steps 2 and 6, if the individual
becomes a member of a couple or separates during the income year in which the
CCS fortnight starts, entitlement of the individual's partner is not taken into account.
Part 2--Amount of ACCS (at risk), ACCS (temporary financial hardship) or ACCS
(grandparent) for an individual
Clause 5 sets out the method for calculating an individual's amount of ACCS (at
risk), ACCS (temporary financial hardship) or ACCS (grandparent) for a week for
sessions of care provided by an approved child care service to a child. The rate is
calculated per week per child per service.
The method requires applying the CCS rate calculator in Part 1 with some
modifications:
references to CCS in Part 1 are read as reference to the relevant type of
ACCS, except in subclause 4(3);
parts of the CCS rate calculator relating to the annual cap are not applied as
the annual cap does not apply to amounts of ACCS;
the hourly rate is worked out under clause 6 instead of clause 2.
These modifications mean that in applying the method statement, the relevant
eligibility criteria in section 85CA, 85CG or 85CJ are used to identify the relevant
sessions of care in step 3 of the method statement.
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In calculating the hourly rate under clause 6 there are two differences compared to
clause 2:
100% is used instead of the applicable percentage;
the ACCS hourly rate cap, which is 120% of the CCS hourly rate cap, is used
instead of the CCS hourly rate cap.
Paragraph 6(2)(b) enables the ACCS hourly rate cap to be increased in the
Secretary's rules.
In exceptional circumstances the Secretary can specify a higher ACCS hourly rate
cap for a particular individual in a determination under paragraph 6(2)(c).
Subclause 6(3) clarifies that a determination under paragraph (2)(c) is not a
legislative instrument. It is merely declaratory and included to assist readers. It is
not an exemption from the Legislative Instruments Act 2003.
Part 3--Amount of ACCS (transition to work)
Clause 7 sets out the method for calculating an individual's amount of ACCS
(transition to work) for a week for sessions of care provided by an approved child
care service to a child. The rate is calculated per week per child per service.
The method requires applying the CCS rate calculator in Part 1 with some
modifications:
references to CCS in Part 1 are read as reference to ACCS (transition to
work), except in subclause 4(3);
parts of the CCS rate calculator relating to the annual cap are not applied as
the annual cap does not apply to amounts of ACCS;
95% is used instead of the applicable percentage to work out the hourly rate.
These modifications mean that in applying the method statement, the eligibility
criteria in section 85CK is used to identify the relevant sessions of care in step 3 of
the method statement.
Part 4--Amount of ACCS (at risk) for an approved provider
Clause 8 sets out the method statement for calculating an approved provider's
amount of ACCS (at risk) (where a provider is eligible for a child) for a week for
sessions of care provided by an approved child care service of the provider to a child
at risk of serious abuse or neglect.
The method statement contains the following steps:
1. Work out the provider's deemed activity test result in relation to the child and
the service for the CCS fortnight in which the week occurs;
2. Identify all sessions of care provided by the service in the week to the child for
which the provider is eligible for ACCS (at risk);
3. Work out the hourly rate of ACCS for each session of care;
4. Work out the activity-tested amount of CCS for the sessions of care.
29
Step 1:
The deemed activity test result is the maximum number of hours of ACCS the
provider can be paid in a CCS fortnight for sessions of care provided by the service
to the child. This will usually be 100. There are some exceptions explained below
under "Part 5 - Activity Test".
Step 2:
The relevant sessions of care are identified by applying the eligibility criteria in
subsection 85CA(2) to each session of care provided to the child by the service.
Step 3:
The hourly rate for each session of care identified in step 2 is determined by
applying clause 9. The hourly rate is 100% of the lower of the hourly session fee
and the ACCS hourly rate cap.
The hourly session fee is defined in subclause 9(2) as the amount the provider
would ordinarily charge an individual for the session of care, divided by the number
of hours in the session, and reduced by the hourly rate of any other subsidy (e.g.
subsidy provided by a State or Territory).
The ACCS hourly rate cap is defined in subclause 6(2).
Step 4:
To determine the activity tested amount under clause 10, for each session of care
identified in step 2, the hourly rate is multiplied by the number of hours in the session
of care that is counted for ACCS purposes and the results for all sessions of care
identified in step 2 are added together.
The number of hours in a session of care that is counted for ACCS purposes is the
lower of the number of hours in the session of care and the balance of the deemed
activity test result worked out under subclause 10(2).
The balance of the deemed activity test result, in relation to a particular session of
care, is the deemed activity test result worked out in step 1 reduced by:
the number of hours (if any) in the CCS fortnight for which the provider is
entitled to be paid ACCS in respect of the child;
the number of hours in any earlier sessions of care identified in step 2.
This clause ensures that the number of hours for which the provider is paid do not
exceed the deemed activity test result.
Step 5:
This step ensures that the amount of ACCS (at risk) for the provider for the relevant
week (to which the rate calculator is being applied) for sessions of care identified at
step 2 is the activity tested amount.
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Part 5--Activity test
Division 1--Individual's activity test result
The activity test result for an individual is worked out using subclause 11(1). The
activity test result is the maximum number of hours for which CCS or ACCS can be
paid to the individual and their partner for a child in a CCS fortnight.
If the individual is not a member of a couple, for the purposes of working out an
amount of CCS or ACCS, the individual's activity test result is the highest of:
the result specified in item 1 of the table below for the amount;
any other result specified in any other table item for the amount that applies.
If the individual is a member of a couple, the individual's activity test result is the
lower of the result worked out using the table for the individual and the result worked
out using the table for the individual's partner.
Item Result for:
Amount of CCS Amount of ACCS Amount of ACCS
other than ACCS (transition to work)
(transition to work)
1 Recognised activity 100 Recognised activity
result (clause 12) result (clause 12)
2 Low income result
(clause 13)
3 Minister's rules result Minister's rules result Minister's rules result
(clause 14) (clause 14) (clause 14)
4 At risk child result At risk child result
(clause 15) (clause 15)
5 Exceptional Exceptional Exceptional
circumstances result circumstances result circumstances result
The recognised activity test (clause 12) result is determined based on the activity
engaged in by the individual in the CCS fortnight as follows:
Hours of activity Result
fewer than 8 0
at least 8 and no more than 16 36
more than 16 and no more than 48 72
more than 48 100
Any changes in the individual's circumstances during the CCS fortnight are
disregarded for the purpose of determining this result (and are applied to the next
CCS fortnight, should those circumstances apply).
The low income result under clause 13 applies to an individual if the individual's
estimate ATI for the income year in which the CCS fortnight starts is equal to or
below the lower income threshold. This result allows the individual to receive up to
31
24 hours of CCS in a CCS fortnight for each child. It gives effect to the additional
assistance to low income families that do not meet the CCS activity test to be
provided under the Child Care Safety Net.
Clause 14 provides for the Minister's rules result. It enables the Minister to
prescribe in Minister's rules a result, or a method for working out a result, by
reference to the circumstances of the individual, the individual's partner or the child.
Clause 15 applies to an individual for a CCS fortnight in relation to a particular child
if the individual is eligible for CCS for a session of care provided to the child in the
CCS fortnight and on the first day of the CCS fortnight it has been less than 18
months since an extended at risk period for the child ended.
An extended at risk period is a continuous period of at least 6 months during which
an at risk certificate or at risk determination was in effect in relation to the child.
If the at risk child result in clause 15 applies, the individual's activity test result will be
100, unless a higher result applies to the individual under another clause.
In exceptional circumstances, subclause 11(2) enables the Secretary to specify an
individual's activity test result in a determination.
Subclause 11(4) clarifies that a determination under subclause (2) is not a
legislative instrument. It is merely declaratory and included to assist readers. It is not
an exemption from the Legislative Instruments Act 2003.
Subclause 11(5) deals with the situation where an individual's activity test result
changes during a CCS fortnight because they are eligible for CCS or ACCS
(transition to work) in one week of the fortnight and ACCS (at risk) or ACCS
(temporary financial hardship) in the other week of the fortnight. In this case, the
higher activity test result that applies for ACCS (at risk) or ACCS (temporary financial
hardship) is maintained for the whole CCS fortnight.
Division 2--Provider's deemed activity test result
The deemed activity test result for a provider, in relation to a particular child and
service, is worked out using clause 16 and will be 100, unless a higher result applies
under the Minister's rules.
In exceptional circumstances, the Secretary can specify a higher deemed activity
test result for the provider in a determination under paragraph (1)(c).
Subclause (3) clarifies that a determination under paragraph (1)(c) is not a legislative
instrument. It is merely declaratory and included to assist readers. It is not an
exemption from the Legislative Instruments Act 2003.
Amendments to Schedule 3--Adjusted taxable income
Items 42 and 43 amend Schedule 3 of the Family Assistance Act to replace
references to CCB with references to CCS.
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Amendments to Schedule 4--Indexation and adjustment of amounts
Items 44 and 45 repeal items in Schedule 4 of the Family Assistance Act relating to
CCB and CCR and substitute new items to provide for indexation of the lower
income threshold for CCS, the CCS hourly rate caps and the annual cap for CCS.
Because the other thresholds in clause 3 of Schedule 2 of the Family Assistance Act
are defined as the lower income threshold plus certain fixed dollar amounts, each
time the lower income threshold is indexed, the other income thresholds will increase
by the same amount as the lower income threshold.
Item 46 repeals subclauses in Schedule 4 relating to CCB and CCR.
33
Amendments to the Family Assistance Administration Act
Definitions
Items 47 to 80 amend section 3 of the Family Assistance Administration Act, which
contains the definitions for terms used in that Act. A number of items repeal
definitions of terms that were required for CCB and CCR, but are no longer relevant
to CCS. Other items replace definitions with new definitions that are adapted to the
new CCS and ACCS system.
Item 81 inserts new section 4A. Subsection (1) sets out the meaning of "large
centre-based day care provider", which is a kind of provider that is subject to
additional approval rules, including a financial viability test. This replaces the
definition of "large long day care centre operator" in existing section 3 which is being
repealed. In broad terms, a provider is a large centre-based day care provider if the
provider alone, or jointly with other related providers, operates or proposes to
operate, 25 or more approved child care services that are centre-based day care
services. Subsection (2) allows the Minister to prescribe in the Minister's rules, a
number other than 25 for the purposes of subsection (1)--this will allow the law to
adapt to business practices in the child care sector. Subsection (3) provides for
when 2 or more providers are considered to be "related providers" for the purposes
of paragraph (1)(c).
Items 82 to 87 amend various provisions in Part 3, by repealing the provisions
relating to the payment of CCB and CCR in Division 4 and 4AA of Part 3, and
making consequential amendments to section 66. These amendments are intended
to ensure that Part 3 of the Family Assistance Administration Act is now solely about
payment of kinds of family assistance other than CCS and ACCS (such as family tax
benefit). Provisions relating to the payment of CCS and ACCS will be contained in
new Part 3A, as inserted by item 88.
Part 3A - Payment of Child Care Subsidy and Additional Child Care Subsidy
Section 67AA contains a simplified outline of new Part 3A, which is self-explanatory.
Note that the new payment rules attempt to simplify many of the complications of the
former CCB payment system, including by removing the long and complex stream of
"determination" rules that followed a decision about an individual's "conditional
eligibility" to CCB by fee reduction (for example, former sections 50 to 51E of the
Family Assistance Administration Act). Many of the old child care payment rules in
Part 3 were unnecessarily complicated.
Section 67AB sets out a summary of the kinds of child care payments an individual
and a provider can become entitled to under new Part 3A (following their eligibility
being determined in accordance with the rules described above in the Family
Assistance Act).
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Division 2 - Making Claims
Division 2 of new Part 3A provides for rules in relation to making claims.
Section 67BA contains a simplified outline.
An individual must make a claim for CCS in order to become entitled to be paid CCS
or ACCS (section 67BB). Only an individual can make a claim for CCS (section
67BC). The two kinds of claims that an individual may make are CCS by fee
reduction, and CCS in substitution for an individual who has died (section 67BD).
Section 67BE provides that a claim is effective if the claim meets the requirements
set out in paragraphs (a) to (h). Notably, in relation to claims for CCS in substitution
for an individual who has died, paragraph (f) specifies that the claim must be made
before the end of the income year after the income year in which the individual has
died. Paragraph (g) allows the Secretary to prescribe further requirements for claims
in the Secretary's rules.
One of the requirements that must be met for a claim to be effective is the bank
account requirements as set out in section 67BG. The bank account requirements
are met for the purposes of a claim if:
the individual provides details of a bank account into which amounts of CCS
or ACCS can be paid; or
the individual makes a statement that she or he will provide details of such a
bank account within 28 days after the claim is made; or
the Secretary is satisfied that it is appropriate to exempt the individual from
the bank account requirements for the purposes of a claim.
Another requirement that must be met for a claim to be effective is the tax file
number requirements as set out in section 67BH. Subsection (1) provides the tax
file number requirement is met for the purposes of a claim if, in relation to each TFN
claim person (as defined in subsection 3(1)), one of the following statements is
made:
a statement stating their TFN,
a statement that they have authorised the Tax Commissioner to tell the
Secretary what their TFN is, or
a statement that they have applied for a TFN.
Subsection (3) provides that if the Secretary makes a determination that she is
satisfied that the claimant cannot obtain the TFN from a TFN claim person who is
their current or ex-partner, the TFN requirements do not apply in relation to that TFN
claim person. Subsection (4) makes clear that this determination is not a legislative
instrument (which is intended to be declaratory rather than an exemption from the
Legislative Instruments Act 2003).
The TFN requirements for the purposes of a claim for CCS in substitution for an
individual who has died are set out in section 67BI, which mirrors section 67BH.
The main difference being that the TFN requirements must be met in relation to each
TFN substitution person, which is defined in subsection 3(1) to mean the deceased
35
individual and any partner of the deceased individual during the period in respect of
which the payment is claimed.
Section 67BF makes clear that a claim that is not in effect is taken not to have been
made.
Division 3 - Determinations
Section 67CA sets out a simplified outline for this Division which is self-explanatory.
While an individual or approved provider may be eligible for CCS or ACCS,
section 67CB makes clear that an individual or an approved provider can only be
entitled to be paid CCS or ACCS if the Secretary makes a determination to that
effect under this new Division.
Note that subsection (4) of this provision is important because it ensures that
entitlement is lost with respect to an income year (the relevant income year) where
an individual fails to meet the reconciliation conditions. There are two deadlines:
by the end of the first income year after the relevant year, if the reconciliation
conditions are not met, the individual loses entitlement for the relevant income
year (this can be reversed if the reconciliation conditions are met during the
next income year--before the "second deadline");
if the reconciliation conditions are still not met by the end of the second
income year after the relevant income year, their non-entitlement remains and
the individual can never become entitled again.
Section 67CC provides for the determination of an individual's eligibility for CCS by
fee reduction.
If an individual makes an effective claim, the Secretary must determine:
if the Secretary is satisfied at the time of making the determination that the
FTB child, age, immunisation and residency requirements are met--that the
individual is eligible for CCS by fee reduction, and
if the Secretary is not so satisfied--that the individual is not eligible for CCS
by fee reduction for the child.
The Secretary may determine that an individual is not eligible for CCS by fee
reduction for the child concerned, if:
the Secretary is satisfied that the individual's eligibility has ceased
permanently (for example, where all their children have grown up or where the
individual has lost their residency status);
an individual has been determined to be not entitled to be paid CCS or ACCS
for at least 52 consecutive weeks; or
the child ceased to meet the immunisation requirements in section 6 of the
Family Assistance Act more than 63 days ago.
The Secretary may also revoke a determination of eligibility upon request by the
individual under subsection (3).
36
Subsection (4) provides for when a determination of eligibility comes into effect,
which must be the first Monday of a CCS fortnight, no earlier than 28 days before the
date of claim.
Example: Rhys has met the eligibility requirements in subparagraph 85BA(1)
since the beginning of 2017. He makes a claim for CCS on Tuesday 1 August
2017. Tuesday 4 July 2017 is the 28th day before the day the claim was
made. A CCS fortnight is defined in s3(1) of the Family Assistance Act to
mean the period of 2 weeks beginning on Monday 3 July 2017 or each
subsequent period of two weeks. The determination that Rhys is eligible for
CCS by fee reduction will take effect on Monday 17 July 2017, which is the
first day the Secretary is satisfied that the eligibility requirements are met, that
is also the first Monday of a CCS fortnight that is within 28 days from the date
of claim.
Subsections (5) and (6) apply on their terms and set out when certain determinations
under this section have effect from.
Section 67CD provides for determinations of an individual's entitlement to be paid
CCS or ACCS.
Time for making determination
Subsection (1) provides for when the Secretary is to make a determination of
entitlement under this section. Each determination of entitlement is made in relation
to an individual, for a week, in relation to sessions of care provided to a child, by an
approved child care service.
Example: Uditha has two children, each attending two different child care
services in a week--in this case, the Secretary would make four entitlement
determinations for Uditha for that week.
The Secretary must make an entitlement determination if all of the following
conditions are satisfied, and must not make an entitlement determination unless all
of the following conditions satisfied:
(a) a determination that an individual is eligible for CCS by fee reduction for the
child is in effect in relation to any day of the week;
(b) the approved provider of the service has given the Secretary a report under
section 204B (also commonly known as attendance reports);
(c) if the individual's claim was made less than 28 days ago--the bank account
requirements in section 67BG are met for the purposes of an entitlement
determination; and
(d) if the individual's claim was made less than 28 days ago--the tax file number
requirements in 67BH are met for the purposes of a determination under this
Division for the individual.
Paragraphs (c) and (d) ensure that, where an individual still has time to meet the
bank account and tax file number requirements (both of which need to be met in 28
days from the date of claim), the Secretary must hold off making entitlement
determinations until these requirements are met.
37
Entitlement to be paid CCS
Subsection (2) sets out the conditions that must be met for a determination to be
made that an individual is entitled to be paid CCS, and the amount of that
entitlement.
These conditions are intended to ensure that an individual can only be paid an
amount of CCS in relation to one or more sessions of care in a week if:
they meet the eligibility criteria for CCS in relation to those sessions of care
(subject to the "immunisation grace period" referred to in subsection (9));
they meet information requirements for the week (they: have provided bank
account details unless exempt; have provided TFN unless exempt; have not
failed to comply with certain types of information requests; and have not failed
to lodge tax return in time);
they have not been determined to be entitled to be paid ACCS for those
sessions of care.
In addition, if an individual meets the above conditions but the amount of CCS to
which the individual will become entitled for the sessions of care is nil, the Secretary
must determine in writing that the individual is not entitled to CCS.
Entitlement to be paid ACCS (at risk) or ACCS (temporary financial hardship)
Subsection (3) sets out the conditions that must be met in order for a determination
to be made that the individual is entitled to be paid ACCS (at risk) or ACCS
(temporary financial hardship), and the amount of that entitlement.
These conditions are intended to ensure that an individual can only be paid either of
these two categories of ACCS for one or more sessions of care in a week if the
individual meets the eligibility criteria for ACCS (at risk) or ACCS (temporary financial
hardship) in relation to those sessions of care; no provider has been determined to
be eligible for ACCS (at risk) for those sessions of care; and the individual meets the
information requirements for the week.
Entitlement to be paid ACCS (grandparent)
Subsection (4) sets out the conditions that must be met for a determination to be
made that an individual is entitled to be paid ACCS (grandparent), and the amount of
that entitlement.
These conditions are intended to ensure that an individual can only be paid ACCS
(grandparent) for one or more sessions of care in the week if the individual: has
applied to the Secretary for ACCS (grandparent); meets the eligibility requirements
for ACCS (grandparent); has not been determined to be entitled to be paid ACCS (at
risk) for those sessions of care; and meets the information requirements for the
week. Determinations of entitlement cannot be made for a week if the CCS fortnight
that includes the week starts earlier than 28 days before the individual made the
application for ACCS (grandparents).
38
Entitlement to be paid ACCS (transition to work)
Subsection (6) sets out the conditions that must be met for a determination to be
made that an individual is entitled to be paid ACCS (transition to work), and the
amount of that entitlement.
These conditions are intended to ensure that an individual can only be paid ACCS
(transition to work) for one or more sessions of care in the week if the individual: has
applied to the Secretary for that payment; meets the eligibility requirements for that
payment; has not been determined to be entitled to be paid ACCS (at risk) or ACCS
(temporary financial hardship); and meets the information requirements.
Determinations of entitlement can be made for a week in a CCS fortnight that starts
after the date of application.
Subsection (7) ensures that such determinations can only relate to whole CCS
fortnights following an application under paragraph 6(a).
No entitlement to be paid CCS or ACCS
Subsection (8) provides that if the Secretary is not satisfied that an individual meets
the conditions of entitlement for either CCS, ACCS (at risk), ACCS (temporary
financial hardship), ACCS (grandparent), or ACCS (transition to work), for one or
more sessions of care in a week, the Secretary must determine that the individual is
not entitled to be paid CCS or ACCS for those sessions.
Immunisation grace period
Subsection (9) defines the concept of an "immunisation grace period". Even if a
child ceases to meet immunisation requirements and therefore the individual is no
longer eligible for CCS or ACCS, the Secretary must still determine that the
individual is entitled to CCS or ACCS if the individual would be eligible to CCS or
ACCS except the session falls in an immunisation grace period. The following
example illustrates the application of the immunisation grace period.
Example: Emma ceased to meet immunisation requirements on 1 July 2018
and starts to meet immunisation requirements again on 1 October 2018. Her
father Jeff meets all other eligibility and entitlement requirements for CCS
during this period. Sunday 2 September 2018 would be the 63rd day after the
day Emma ceased to meet the immunisation requirements. Subsection (9)
means that the days following 1 July 2018 up to Sunday 2 September 2018
would fall within the immunisation grace period. In accordance with
paragraphs (2)(a) and (9)(b) of section 67CD, Emma's father Jeff would be
determined to be entitled to CCS for sessions of care up to the end of the
week beginning on Monday 27 August 2018. Jeff would be determined not to
be entitled to CCS from the week beginning 3 September 2018.
Section 67CE and section 67CG provides for when the Secretary must give notice
of determinations under Subdivision B and C, both to individuals and to approved
providers.
39
Section 67CF provides for determinations of an individual's entitlement to be paid
CCS or ACCS in substitution for individual who has died.
Section 67CH provides for determinations of a provider's entitlement to be paid
ACCS (at risk).
Determinations of entitlement for approved providers are made under this section in
relation to sessions of care provided during a week to a child, by an approved
service of the provider. The intention is that the Secretary must only make such a
determination when all of the following conditions are met:
(a) either a certificate of risk of serious abuse or neglect, or a determination of
risk of serious abuse or neglect, is in effect;
(b) the provider has given the Secretary a section 204B report (an attendance
report);
(c) the provider has given the Secretary a declaration that the provider has not
been able to identify an eligible individual after making reasonable
endeavours.
If the Secretary is satisfied that the provider is eligible for ACCS (at risk) under
subsection 85CA(2) of the Family Assistance Act for sessions of care provided to the
child in the week, the Secretary must determine that the provider is entitled to be
paid ACCS (at risk) and the amount of the entitlement. Conversely, if the Secretary
cannot be satisfied that the provider is eligible, the Secretary must determine that the
provider is not eligible.
Section 67CI requires the Secretary to give notice of determinations made under
section 67CH.
Division 4 - Estimates
Section 67DA is a simplified outline of this Division which is self-explanatory.
Section 67DB provides that where the actual adjusted taxable income of an
individual is not known at the time of making an entitlement determination, the
Secretary has the power to make entitlement determinations on the basis of the most
recent estimate that exists on the first Monday of the CCS fortnight.
This can be either:
(a) a reasonable estimate given to the Secretary by the claimants;
(b) the indexed estimate;
(c) the indexed actual income; or
(d) the estimate the claimant is taken to have given the Secretary in an election
made under subsection (3).
Subsections (3) and (4) allow a claimant to make an election in relation to the
estimate adjusted taxable income that is to be used in entitlement determinations
that would result in an applicable percentage of between 20% and 50%. By making
an election, a claimant is taken to have given the Secretary an estimate adjusted
taxable income of an amount between the third income threshold ($250,000) and the
upper income threshold ($340,000) The policy intent of this provision is to give
40
individuals an option to avoid the possibility of incurring large debts in case they
underestimate their income, because, in most cases, the applicable percentage will
be increased on review after an individual's combined ATI is known--although it is
still possible that small debts could accrue after an individual meets the reconciliation
conditions, where an underestimate of income has led to an election for an
applicable percentage higher than the percentage that should have applied (however
this scenario will only occur in relation to households with incomes above $250,000).
Subsection (5) provides that if none of the estimates referred to in subsection (2)
exists on the first Monday of the CCS fortnight, the Secretary must make a
determination that the individual is not entitled to be paid CCS or ACCS for that
fortnight.
New sections 67DC (indexed estimates), 67DD (indexed actual incomes) and 67DE
(indexed estimates and indexed actual incomes for members of couples) replace
existing sections 55AA, 55AB and 55AC in the current Family Assistance
Administration Act. The difference between the old and new provisions are
consequential to the new machinery provisions supporting the administration of CCS
and ACCS payments.
Division 5 - Payments
Section 67EA is a simplified outline of this Division which is self-explanatory.
New section 67EB replaces existing section 219Q. It provides that if the Secretary
makes a determination of entitlement for an individual or an approved provider, the
Secretary must pay the amount of the determination, less the withholding amount, to
the bank account of the provider.
If the Secretary increases the amount of CCS or ACCS upon review of a
determination of entitlement, the Secretary must pay an amount equal to the
increase, less the withholding amount, to the bank account of the provider.
The withholding amount for a payment of CCS is 10% of the payment, unless the
Minister's rules prescribe a different percentage. The Minister may exercise this
power after monitoring whether the 10% is adapted and proportionate to managing
debts for most individuals. There is no withholding amount for a payment of ACCS.
The Secretary also has the ability to make a determination to specify a different
percentage of withholding for an individual. The Secretary may make such a
determination if she is satisfied that the percentage is appropriate to avoid the
individual incurring a debt, or to reduce the potential size of the debt. Subsection (5)
makes it clear that such a determination (as distinct from the Minister's rules which
will apply as a matter of general application) is not a legislative instrument--this is
just declaratory of the law and is not an exception to the Legislative Instruments Act
2003.
Section 67EC replaces existing section 56B, with consequential modifications to
reflect new machinery provisions supporting the administration of CCS and ACCS.
41
This provision requires the Secretary to pay directly to an individual, the difference
between the total amount of CCS or ACCS the individual is entitled to be paid for
sessions of care provided by a child care service in CCS fortnights starting in an
income year, and the amount the provider was required to pass on to the individual
under section 201A for those sessions.
The provision gives the Secretary the discretion to defer paying the above amount
until after the individual meets the CCS reconciliation conditions in section 105C.
Section 67ED, which provides for the payment of CCS or ACCS in substitution for
an individual who has died, replaces existing section 56A with consequential
modifications.
Section 67EE deals with payments to providers who are eligible in their own right to
ACCS (at risk), stating that payments are to be paid to a bank account held by the
provider (rather than by "passing on" the amount to any individual).
Division 6 - Giving Information
Section 67FA is a simplified outline of this Division which is self-explanatory.
Section 67FB replaces existing section 56C which provides for the requirement for
individuals to notify the Secretary of change of circumstances.
Section 67FC replaces existing section 56D which provides for the requirement for
approved providers to notify the Secretary of change of circumstances relevant to
whether a child remains at risk of abuse or neglect. Contravention of this provision
carries an offence of 60 penalty units.
Section 67FD, which gives the Secretary the power to approve a manner of notifying
changes of circumstances, replaces existing section 57 with minor consequential
modifications.
Section 67FE (request for bank account details), section 67FF (request for tax file
number etc. in claim forms), section 67FG (request for tax file number etc. of TFN
determination persons), and section 67FH (request for information about care
provided) replace existing sections 57A, 57B, 57D and 57G with minor consequential
modifications.
Section 67FI is a new provision that gives the Secretary the power to request
information about future income years. The Secretary may do so by giving a written
notice to an individual, specifying the information that is requested, and the time in
which the information must be provided. The Secretary may prescribe in Secretary's
rules, the kinds of information that may be requested.
Division 7--Payment protection and garnishee orders
Section 67GA is a simplified outline of this Division which is self-explanatory.
42
Section 67GB stands alongside existing section 66 (which now deals with only
family assistance other than child care payments) and is consistent with the policy
that, except for the limited exceptions specified, a family assistance payment is
inalienable and is absolutely protected from sale, assignment, charge, execution,
bankruptcy or other types of alienation.
Section 67GC is related to the inalienability provision set out in section 67GB and
clarifies that if a garnishee order comes into effect in relation to a bank account into
which payments listed in subsection 66(1) are credited, the garnishee order is not
effective in relation to the "saved amount", calculated according to the formula
specified.
Part 4 - Overpayments and debt recovery
Item 89 makes amendments to clarify that amounts of family assistance are taken to
be "paid" to a person where the amount is applied against certain liabilities or debts,
or is set off against another amount (section 68). Section 69 clarifies that
references to amounts paid to approved providers are taken to apply in relation to
providers who are no longer approved (or approved in respect of a particular
service).
Items 90 and 91 are minor technical amendments.
Items 92 and 93 insert new provisions that raise debts of CCS or ACCS. Amounts
are debts due to the Commonwealth where:
An amount of CCS or ACCS is paid to an individual or provider who is not
entitled to it (section 71B);
An overpayment of CCS or ACCS is received (section 71C);
A provider fails to pass on an amount of CCS or does not remit the amount to
the Secretary if required (section 71D);
Because of an individual's false or misleading statement, a provider would
incur a debt where they have made themselves eligible for ACCS (at risk) in
respect of a child (section 71E)--in this case the individual incurs the debt
rather than the provider;
Because of a provider's false or misleading statement or contravention an
individual would incur a debt (section 71F)--in this case the provider incurs
the debt rather than individual; and
A provider's approval is suspended or cancelled and fee reduction payments
or business continuity payments are subsequently made (sections 71G and
71H).
Items 94 and 95 make amendments consequential to the introduction of "approved
providers" to a provision dealing with methods of debt recovery. The intention is that
the listed methods of recovery for individuals and providers will be common, but will
43
only operate to the extent legally possible. It may be, for example, that some
methods are not legally available in respect of partnerships or unincorporated
providers, notwithstanding sections 230A and 230B.
Items 96 to 104, 106, 107 and 109 are technical amendments consequential upon
the introduction of CCS and ACCS.
Item 105 deals with the time for recovering certain CCS debts. This provision gives
the Secretary the discretion to not pursue recovery where it is possible that an
individual may belatedly meet CCS reconciliation conditions (generally, by lodging
their tax return) and thereby resume entitlement for a former income year.
Item 108 inserts a new kind of debt that can be written off into section 95. Under
new subsection (4B), the Secretary may write off a debt that arises in circumstances
where the reconciliation conditions are not met (generally because a tax return has
not been lodged) if the reason why the reconciliation conditions were not met was
because an individual's former partner had not lodged a tax return at the time the
individual and the partner separated (where the separation occurred as specified in
paragraph (a)).
Part 5 - Review of decisions
Item 110 inserts new Division 1A, which deals with preliminary matters in relation to
child care decisions.
Section 103 defines "child care decision". A child care decision includes an original
determination made by the Secretary under Division 3 of Part 3A (determinations of
eligibility and determinations of entitlement to CCS or ACCS) as well as an internal
review decision by the Secretary or a review decision by the AAT of a determination
under Division 3 of Part 3A. The intention is to ensure that the same outcome (for
example, as relevant for limitations on arrears) will be achieved for original decisions
and in relation to reviews.
Section 103A sets out when an individual is considered to have met the CCS
reconciliation conditions, which relate to tax assessments becoming available for the
individual and anyone who was a partner of the individual in the income year (unless
the individual or partner is not required to lodge a tax return because of their low
income, for example).
Sections 103B and 103C define the "first deadline" and "second deadline" for the
purposes of provisions relating to meeting the CCS reconciliation conditions.
Item 111 makes amendments to section 104 to list some limited exceptions to the
default rule that decisions under the family assistance law are reviewable on internal
review by the Secretary. The exceptions relate to events that cannot or should not
be reversed, including a decision to pay a fee reduction amount (review may instead
be sought in relation to the entitlement determination) or decisions to issue
compliance notices (reviews may instead be sought in relation to a non-compliance
decision).
44
Item 112 inserts new section 105C which ensures that certain information is not
taken into account on review where the information was provided to the Secretary
unreasonably late (after the 28 day period as referred in paragraph (c)) following a
notification obligation in respect to that information. This provision attempts to
encourage the prompt notification of information that might increase the amount of
CCS or ACCS that a person might be entitled to. The limitation does not apply
where the new information is the adjusted taxable income of the individual.
Section 105D ensures that a person's entitlement for CCS or ACCS cannot be
increased on review for a week that falls in the income year immediately before the
income year in which the decision on review is made. This provision is intended to
discourage unreasonably late requests for review. Subsection (2) ensures that an
exception applies where the review is conducted because the reconciliation
conditions are met (generally, following a person's tax assessment becoming
available and their adjusted taxable income becoming known).
Section 105E obliges the Secretary to conduct an own motion review once the
reconciliation conditions for an individual are met (usually where a person's tax
assessment becomes available after they lodge a tax return). This provision enables
the Secretary to review the entitlement determinations made throughout the year
based on income estimates, and substitute with the correct amount of entitlement
based on information about the person's adjusted taxable income as determined by
the Commissioner of Taxation following a tax assessment being made.
Items 113 to 118 are minor technical amendments.
Item 119 inserts new section 106A, which sets out circumstances in which the
Secretary is required to give notice of review decisions about eligibility or entitlement
to CCS or ACCS to an individual and a provider affected by the decision.
Section 106B acknowledges the possibility that a Secretary may initiate an own
motion review after a person has applied to the AAT for review of the same original
decision. If this occurs, this provision requires the Secretary to give the AAT written
notice of the Secretary's review decision so that the AAT can take it into account.
Items 120, 121 and 122 make consequential amendments to section 107 to
maintain the existing law with respect to family tax benefit.
Item 123 adds new section 107A into the Family Assistance Administration Act to
address the date of effect of a review decision made under section 105 to vary, or
set aside and substitute a new determination about eligibility for CCS. The provision
ensures that the date of effect of favourable decisions in respect of CCS eligibility
cannot be earlier than the beginning of the income year before the income year
during which the review decision was made.
Items 124 to 129 make amendments to section 108 of the Family Assistance
Administration Act, which is a provision that deals with decisions that may and may
not be reviewed under section 109A (which relates to applicant initiated reviews).
These amendments:
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remove references to decisions about CCB from the list of exceptions to the
default rule that all decisions are reviewable on request (because they are no
longer relevant);
insert new exceptions in relation to decisions that cannot or should not be
reviewed (including decisions to pay an amount through a provider to pass on
a fee reduction, decisions to give non-compliance notices or decisions to
publish non-compliance information);
make other minor amendments consequential upon the introduction of CCS
and ACCS; and
ensure that an applicant may only initiate a review of a decision about an
individual's entitlement based on the individual's income and activity levels
after a person's tax assessment becomes available following an income year
(where a tax return is required to be lodged).
Items 130 and 131 (as well as the minor amendments made by items 132 and 133)
alter section 109A of the Family Assistance Administration Act (the provision under
which persons can apply for internal review) to ensure that requests for review of
Part 8 decisions about the approval of providers can only be made by providers.
Requests in relation to other decisions can be made by a person that is "affected" by
those decisions, which is a broader standing rule. However, for decisions under Part
8, standing is limited reduce possibly numerous and identical applications from
individuals who may be affected by a provider approval decision, leaving it to the
provider themselves to apply for review. Another reason for limiting standing to
providers is because any review of a Part 8 decision would only take into account
information relating to the child care provider. An individual's loss of access to a
child care service that attracts CCS due to the provider's loss of approval would not
be a relevant consideration in a review of any decisions under Part 8. Note that this
provision will not limit an individual's right to apply to a court in relation to a question
of law, including under the Administrative Decisions (Judicial Review) Act 1977.
Items 134, 135 and 136 make technical amendments to a provision that deals with
providing notice of applicant initiated review decisions, to make references to CCS
and ACCS and to remove references to repealed provisions relevant to CCB. There
are also new obligations in this provision to provide notification to "providers".
Item 137 amends section 109D to require that applications for review of decisions
under section 109A must be made no later than 13 weeks after the applicant is
notified of the decision (if the decision is in relation to CCS or ACCS). Otherwise,
the application can be made 52 weeks after notification, which is the existing rule.
This provision is intended to encourage prompt requests for review in relation to child
care decisions. Items 138 to 144 are related technical amendments.
Item 145 provides a longer period in which internal reviews can be requested where
the decision on review is made because a person's adjusted taxable income has
become known because the person's tax assessment has become available or
where the Taxation Commissioner has reviewed a decision under taxation law about
46
the taxable income of an individual. This provision adapts existing subsection
109D(4) to CCS.
Items 146 and 147 make minor technical amendments.
Item 148 replaces section 109DA to provide for a time limit on applications by
providers for internal review in relation to decisions made about provider approval.
New section 109DB ensures that new section 105C (which limits information that
can be taken into account in a decision on review) also applies where the review
occurs because of a request under section 109A. New section 109DC operates
similarly with respect to time limits on increases (by ensuring that section 105D also
applies where the review occurs because of a request under section 109A). New
section 109EA (as inserted by item 149) operates similarly, by ensuring that
section 107A (which limits the date of effect of review decisions to no earlier than the
first day of the income year before a review decision was made) also applies where
the review occurs because of a request under section 109A in relation to
determinations of eligibility or entitlement for CCS or ACCS.
Items 150 to 153 make a series of technical amendments to section 109G (which is
about payments pending the outcome of a review process) consequential upon the
introduction of CCS and ACCS.
Items 154 to 160 make a number of technical amendments to section 111, which
deals with applications to the AAT for "first review". Some limited exceptions to
review at the AAT are inserted through these items where review is inappropriate
(such as in relation to "form and manner" requirements for notices or forms).
Item 160 is important because it ensures that review of decisions relevant to a
person's income changes or activity cannot be made at "AAT first review" until after a
reconciliation process has occurred following an income year (that is, generally once
a person's tax assessment becomes available).
Items 162 and 163 make amendments to section 111A, which deals with time limits
on applications for "AAT first review". Generally a person has 13 weeks to request
such review after notification of a decision, however new subsection (2A) provides
for a longer period where the decision is made following reconciliation conditions
being met (generally, because a person's tax assessment has become available,
where the person is required to lodge a tax return). Item 161 makes a related
technical amendment.
Items 164 to 169 make minor technical amendments.
Item 170 makes amendments to section 124 to ensure that complex calculations
required to give effect to the AAT's decision on first review are performed by the
Secretary on the AAT's direction, because the Secretary has access to the computer
system that calculates child care payments.
Item 171 inserts new section 125C to deal with the date of effect of certain AAT first
review decisions relating to CCS and ACCS. The new provision limits the date of
effect for favourable decisions (in respect of eligibility or entitlement to CCS or
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ACCS) to no earlier than the first day of the income year prior to the income year in
which the application for review was made.
Item 172 amends section 128 of the Family Assistance Administration Act, which
deals with "AAT second review". The amendments adding subsection (3) and (4)
ensure that the same rules that apply to limitations on first review (as dealt with by
subsections 111(2A) and (2B)) apply to second review. Like for amendments to
section 111, these provisions ensure that decisions relevant to a person's income
changes or activity cannot be reviewed at "AAT second review" until after a
reconciliation process has occurred following an income year (that is, generally once
a person's tax assessment becomes available). New subsection 128(5) gives
applicants more time to lodge an application for "AAT second review" where the
application is made because an individual meets the reconciliation conditions
(generally because their tax assessment has become available) or where the
Taxation Commissioner has reviewed a decision under taxation law about the
taxable income of an individual.
Item 173 inserts new sections 134A and 134B which ensure that sections 124 and
125C (about ensuring that the Secretary makes complex calculations to give effect to
AAT decisions and about date of effect of CCS and ACCS decisions) apply at AAT
second review in the same way that they do at AAT first review.
Item 174 inserts new section 136 which outlines the requirements for the Secretary
to notify relevant providers of certain AAT decisions that impact an individual's
eligibility or entitlement to CCS or ACCS.
Item 175 inserts new section 137A which limits how far back in time favourable
changes affecting individuals and providers can take effect, where information is not
provided promptly. This provision is intended to encourage the prompt provision of
information in response to the Secretary's information gathering powers, and the
prompt notification of change in circumstances that would affect eligibility or
entitlement.
New section 137B ensures that favourable decisions made on first or second review
by the AAT do not have effect prior to the income year before the income year in
which an application is made. This provision gives people a reasonable chance to
request review, but ensures that applicants have an incentive to apply for AAT
relatively reasonably promptly. An exception applies where the application for
review is made because the reconciliation conditions are met (generally because a
person's tax assessment is made available) or where the Commissioner of Taxation
reviews a tax decision with respect to an individual's taxable income.
Items 176 and 177 (and item 178, as a consequence) amend section 138 to limit
standing for decisions about the approval of providers to providers rather than other
persons who may be affected by an approval decision. Standing is limited to reduce
vexatious and possibly numerous applications from individuals who may be affected
by a provider approval decision, leaving it to the provider themselves to apply for
review. Note that this provision will not limit an individual's right to apply to a court in
relation to a question of law, including under the Administrative Decisions (Judicial
Review) Act 1977.
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Item 179 repeals a Division that is no longer requires because of the cessation of
CCR.
Part 6 - Provisions relating to information
Item 180 makes amendments to the compulsory information gathering power in
section 154 of the Family Assistance Administration Act that are consequential upon
the introduction of CCS and ACCS.
Items 181 to 184 make technical amendments to an information gathering power
consequential upon the cessation of CCB and the introduction of CCS and ACCS.
Item 185 inserts new section 157A which empowers the Secretary to obtain records
kept by approved providers about whether a child is at serious risk of abuse or
neglect.
Item 186 amends subsection 158(3) to allow the Secretary to specify, in a notice
given under Division 1 of Part 6 of the Family Assistance Administration Act, a period
shorter than 14 days in which the information is to be provided where a shorter
period is reasonable to ensure the effective administration of the family assistance
law. A shorter period may be imposed where urgent provision of information is
required to mitigate risk to children in care or to limit debts.
Item 187 also amends section 158 to require notices to specify a time and place for
a person to appear where relevant and that the time for appearing must be at least
14 days, unless a shorter period is reasonable to ensure the effective administration
of the family assistance law. A shorter period may be imposed where urgent
provision of information is required to mitigate risk to children in care or to limit debts.
Item 188 adds to the list of legislative schemes that protected information can be
disclosed for the purposes of, by adding the Education and Care Services National
Law of a State or Territory jurisdiction. This amendment will authorise the flow of
child care information between the Commonwealth and States and Territories for the
limited purposes of child care payments and child care quality under Commonwealth
and State/Territory legislation.
Item 189 is a minor technical amendment.
Item 190 is a consequential amendment required because of the cessation of CCB.
Items 191 and 192 amend section 172 to ensure that references to claims for family
assistance in this provision include certain applications in relation to ACCS.
Item 193 makes a consequential amendment to paragraph 173(1)(d), required
because of the cessation of CCB and CCR.
Items 194, 195, 196 and 197 are minor technical amendments.
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Item 198 consolidates offences that had applied to CCB and CCR into a single
provision that operates in respect of payments obtained by fraud.
Items 199, 200 and 201 are minor consequential amendments required because of
the cessation of CCB and because of the introduction of CCS and ACCS.
Part 8--Approvals
Item 202 repeals and substitutes Part 8 of the Family Assistance Administration Act.
New Part 8 provides for approval of providers of child care services in respect of
particular services. The Part attempts to draw consistencies in terminology between
the family assistance law and the Education and Care Services National Law Act
2010 (Vic) and equivalent legislation in other State jurisdictions (the National Law),
which refers to "providers" as distinct from "services".
New Part 8 aims to streamline the approval process by tailoring the approval criteria
to take into account matters relevant to the provider's suitability to administer child
care payments on behalf of the Commonwealth. The approval process is also
streamlined by consideration of a smaller set of service specific criteria when a
provider seeks to add new service(s) to their approval.
Division 1--Provider approval
Section 194A sets out the requirements for an application for approval.
Subsection (1) limits the types of entities that can apply for approval. An application
for approval can be made by an individual, body corporate, partnership, or other
entity or body prescribed by the Minister's rules.
Subsection (2) provides the form, manner and content requirements for applications.
Subsection (3) clarifies that applications that do not comply with the form and
substance requirements in subsection 194A(2) are taken not to have been made and
also allows the Minister's rules to prescribe circumstances in which an application is
taken not to be made. This rule making power is intended to be used to limit
applications to address excessive growth within a particular child care service type
specifically where there are concerns about proven or alleged non-compliance with
family assistance law.
Section 194B deals with when the Secretary may approve a provider (essentially
where they can satisfactorily demonstrate that they can meet the eligibility criteria in
sections 194C and 194D) and when the Secretary can approve the provider in
respect of services it operates. A provider must operate, or propose to operate, at
least one approved service, otherwise the provider cannot be approved. There are
also administrative provisions in this section dealing with notification of approval and
the circumstances in which the Secretary must refuse to approve a provider as a
provider in respect of a service it operates.
Sections 194C and 194D set out the provider and service eligibility rules. For a
provider to meet the eligibility rules, they will need to: hold any approvals or licences
50
required under the National Law or other State or Territory laws that relate to child
care; demonstrate that they, and any person with management or control of the
provider, are fit and proper persons (as defined in section 194E); where they are a
large centre-based day care provider, demonstrate that they are financially viable
and are likely to remain as such; and meet any other criteria specified by the
Minister.
The service eligibility rules refer to kinds of care that the service must not provide
and refers to criteria that also apply to providers. Paragraph 194D(f) is notable for
setting out factors that the Secretary must weigh up and be satisfied of regarding the
appropriateness of the approval, including: any conditions that have already been
imposed on the provider's approval; whether there is a history of non-compliance
with laws; whether there is a poor record of administering CCS, ACCS, CCR or CCB
payments or other funding provided by the Commonwealth or States or Territories;
the perceived capacity of staff to use the electronic child care payment system; and
other matters prescribed in rules or that are considered relevant in a particular case
(that are not set out in rules).
Section 194E lists the fit and proper person considerations that the Secretary must
have regard to for the purposes of the provider and service eligibility rules. Notably,
subsection (2) is intended to ensure that references to a "relevant person" in any of
the factors listed in subsection (1) includes another person or body in respect of
which the person is or has ever been a person with management or control. This
provision is intended to ensure that the Secretary is able to take into account a
person's previous record of management or control of other entities in having regard
to the factors in subsection (1).
Section 194F provides a definition of "person with management or control" for the
purposes of the fit and proper person considerations in the provider and service
eligibility rules. In particular, paragraph (b) ensures that even if a person does not
have the legal authority or responsibility for the planning, direction or control of the
activities of a body, but has a significant influence over the planning, direction or
control of the activities of the body, that person would be considered a "person with
management or control" of the body. For example, a parent company who has a
significant influence over the activities of a subsidiary would be considered a "person
with management or control", even where the parent company has no legal authority
to direct the activities of the subsidiary.
Section 194G provides a definition of "approved child care service" and clarifies that
a service is not approved during a period of suspension (although a service could be
taken to be approved during a period of suspension if a suspension is revoked with
backdated effect or on review).
Section 194H puts beyond doubt that any obligation or permission imposed or
conferred under the family assistance law on an approved child care service is taken
to be imposed or conferred on the approved provider that is approved with respect to
that service. This provision reflects the fact that, under the family assistance law, an
approved child care service is effectively the business operations of an approved
provider, who is the controlling legal entity or body.
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Division 2--Conditions for continued approval
Section 195A sets out the conditions for continued approval of an approved provider
that relate to ongoing compliance with eligibility rules, the family assistance law and
other laws of the Commonwealth or States and Territories that apply to the provider
(including the National Law).
Section 195B states that it is a condition of continued approval that, where a service
(with respect to which they are approved) has been allocated places, the service is
to fill no more places than those allocated. This provision has no effect in respect to
services where places have not been allocated.
Section 195C outlines, as a condition of continued approval, the minimum period
that an approved child care service must operate (that is, provide child care) per
year. The provision enables rules to be made to prescribe alternative periods to the
default periods listed in subsection (2) and empowers the Secretary to determine
shorter periods in "special circumstances", which are intended to be very unusual
circumstances in which it would be unfair or inappropriate for the provider to provide
care for the minimum period.
Section 195D ensures that details of the working with children cards that staff are
required to hold who work in an approved child care service are provided to the
Secretary so that the Secretary can be satisfied that the staff have been subject to
the requisite checks to work with children.
Section 195E allows the Minister to prescribe further conditions of continued
approval by legislative instrument. This power is intended to ensure that additional
conditions of continued approval may be imposed in the future, to deal with
unforseen changes affecting the child care sector.
Section 195F gives the Secretary the ability to impose specific conditions in relation
to a particular provider or service (for example, where these are required because of
the particular characteristics of the provider or service). Such conditions might
include restrictions on a provider from operating in a particular geographical location,
or a requirement in relation to particular alterations to the facilities provided at an
approved service.
Subsection 195F(4) clarifies that notices of conditions imposed by the Secretary are
not legislative instruments. This provision is included simply to assist readers, as
any such notice is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Section 195G empowers the Secretary to assess, at any time, a provider's
compliance with the conditions for its continued approval, including whether the
provider eligibility continues to satisfy the provider eligibility rules and whether the
provider and persons with management control of the provider are fit and proper
persons to be involved in the administration of CCS and ACCS.
Section 195H sets out the consequences that follow a breach of a condition of
continued approval, otherwise known as "sanctions" that the Secretary can impose.
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Provisions in this section: list the sanctions that can be imposed (subsection (1));
empower the Minister to set out rules that the Secretary must have regard to in
applying sanctions to approved providers (subsection (2)); and the processes
involved to impose a sanction and following the imposition of a sanction.
Division 3--Adding or removing services
Section 196A enables approved providers to apply to add or remove services from
their approval. Subsection (3) clarifies that applications that do not comply with the
form and substance requirements in subsection 196A(2) are taken not to have been
made and allows the Minister to prescribe other circumstances in respect of which
applications are taken not to have been made as referred to in subsection 194A(3).
Sections 196B and 196C empowers the Secretary to vary the provider's approval
by adding or removing a service to the provider's approval. It also sets out the
administrative steps the Secretary may take in response to an application under
section 196B.
Division 4--Suspension, variation and cancellation of approval
Section 197A provides the Secretary the power to immediately suspend the
approval of an approved provider, or a service in which a provider is approved in
respect of, in the circumstances listed in subsection (1). For example where there
are immediate threats to the health and safety of a child. There are also provisions in
this section outlining the administrative steps that the Secretary is to follow.
Section 197B allows the Secretary to suspend the approval of an approved
provider, or a service in respect of which they are approved, if the provider has been
given numerous infringement notices (10 within 12 months, or just 5 in 12 months,
where the infringement penalty has not been paid in accordance with the notices).
Note that infringement notices are given for non-compliance.
Section 197C allows providers to request that the Secretary cancel their approval
and provides for administrative steps following such a request. Providers may wish
to do this where they want to remain operating as a child care service without CCS
approval.
Sections 197D and 197E allow the Secretary to cancel a provider's approval or vary
an approval (so that the provider is not approved in respect of service) if the
Secretary becomes aware that the approval should not have been made because
the factors in section 194B were not satisfied at the time the provider/service was
approved.
Sections 197F and 197G allow the Secretary to cancel approvals (of providers or
services) where services have not operated for 3 months (unless the exceptions in
(1)(b) apply). This provision ensures that providers who, and services that, stop
operating can be removed from the CCS payment system.
Sections 197H and 197J require the Secretary to cancel or vary the approval of a
provider where the provider ceases to operate its services.
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Section 197K ensures the Secretary can cancel a provider's approval where they
are no longer approved in respect of any services.
Division 5--Allocation of child care places
Section 198A allows the Minister to prescribe rules dealing with the matters listed
with respect to the allocation of child care places. If a condition of a service's
approval is that they are subject to these rules, section 198B provides that the
Secretary must allocate places in accordance with them and allows approved
providers to apply for additional places.
Section 198C empowers the Secretary to reduce the number of places allocated
where the number allocated exceeds the number of places actually provided or able
to be provided under a State or Territory law because of licensing restrictions.
Division 6--Miscellaneous
Division 6 is the final Division in Part 8 and deals with a number of miscellaneous
matters including the procedure for imposing sanctions (section 199A) and a power
to publicise action taken on providers or individuals (section 199B).
Section 199C is an obligation imposed on approved providers to notify the Secretary
of matters affecting the original approval and whether it should continue to be
approved. The obligation is punishable by an offence carrying a penalty of 80
penalty units or through a civil penalty of 60 penalty units. This offence is not one of
strict liability and therefore the prosecution would need to establish relevant fault
elements.
Section 199D applies alongside the obligation to provide notices of reviewable
decisions under section 27A of the Administrative Appeals Tribunal Act 1975 and
requires the Secretary to notify of review rights in notices of decisions under Part 8 of
the Family Assistance Administration Act.
Section 199E empowers the Secretary to notify individuals whose eligibility for CCS
or ACCS may be affected by an approved provider's non-compliance with a
condition of continued approval or by a cancellation, suspension or variation of an
approved provider's approval, were the Secretary to take such action. There are
requirements in this provision for the form and content of such notices.
Section 199F allows the Minister to specify providers who are exempt from meeting
certain approval criteria in order to become, or remain, approved. It is intended that
the Minister would specify providers who are in difficult or unusual circumstances
and who should nevertheless be able to provide child care with respect to which an
individual can remain eligible for CCS or ACCS. This provision could be used for
services formally funded under the Budget Based Funding model.
Section 199G, while appearing to provide a broad modification power of principal
legislation (sometimes referred to as a "Henry VIII clause"), is intended to operate in
a purely beneficial way to deal with any anomalies that may arise where an approval
54
is taken to be backdated in time. Where approvals are backdated in their effect to a
date in the past, individuals and providers may not be able to meet certain
requirements (such as the requirement to provide reports under section 204B) within
the time specified in legislation. This provision provides flexibility to ensure that
anomalous timing rules and other matters, consequent upon backdated approvals,
can be dealt with in a reasonable, sensible and beneficial manner.
Part 8A--Provider requirements and other matters
New Part 8A of the Family Assistance Administration Act sets out a number of
obligations that are imposed on approved providers.
Division 1--Requirements in relation to enrolments
Section 200A requires approved providers to provide the Secretary notification of
the enrolment of a child within the timeframe specified in paragraphs (3)(c) or (d).
Subsection (2) deals with notification requirements in cases where a child is enrolled
prior to an approval being given or during a period of suspension of approval.
Due to the central importance of notifying enrolments to the CCS and ACCS
payment system, subsections (4) and (5) provide for an offence of strict liability for
failure to notify and a civil penalty. It is not intended that the offence would be
prosecuted in respect of honest or reasonable mistakes. There is also a civil penalty
and an option to issue infringement notices for less serious breaches of the
obligation.
For the purposes of the notification obligation in section 200A, section 200B sets out
when a child is taken to be enrolled. Importantly, (unless subsection (4) applies
because the child it at serious risk of abuse or neglect) a child is only enrolled where
the individual and the provider of the service enter into a complying written
arrangement that complies with the requirements in the Secretary's rules referred to
in subsection (3). An arrangement can only be varied in writing in accordance with
section 200C.
Section 200D imposes obligations on approved providers to notify the Secretary
when a "complying written arrangement" is varied in a way that results in the
information that was notified about the enrolment to become incorrect (or in other
circumstances prescribed by the Minister's rules), where other information becomes
available that should have been provided or where the information affects the
currency of the enrolment or the arrangement. Due to the importance of the integrity
of the payment system and the Secretary being updated on enrolment arrangements
and changes, contravention on subsection (1) is punishable by an offence of strict
liability, or through a civil penalty. It is not intended that the offence would be
prosecuted in respect of honest or reasonable mistakes.
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Division 2--Requirements in relation to CCS and ACCS by fee reduction
Division 2 sets out obligations of approved providers that relate to ensuring that CCS
and ACCS operate by passing on fee reductions to individuals (except for ACCS in
respect to which a provider is eligible).
Section 201A requires providers, after they have received a notice of a fee reduction
decision for an individual, to pass on the fee reduction or to remit the amount
received to the Secretary where they cannot. A provider may pass on a fee
reduction amount by reducing the fee that they charge the individual. Due to the
central importance of passing on fee reductions of CCS and ACCS, provisions in this
section provide for an offence of strict liability for failure to notify as well as a civil
penalty. It is not intended that the offence would be prosecuted in respect of honest
or reasonable mistakes.
Subsection 201A(4) is a practical provision that allows for fee reductions to be
passed on to the individual otherwise than reducing fees (for instance by providing a
refund of fees already charged). This provision is intended to deal with cases where
certain decisions are backdated, such as a decision to approve a provider with
backdated effect or where a suspension is revoked or overturned on review. Where
the individual receives the benefit of the fee reduction from the provider, the provider
is taken to have passed on the amount, and the individual is taken to have been paid
an amount of CCS or ACCS.
Section 201B is a provision that obliges approved providers to ensure that they
recover, from individuals, the difference between a fee reduction (made available
through CCS or ACCS) and the actual fee charged to the individuals, where there is
a difference. The CCS payment is designed with a concept of co-contribution to the
cost of child care. This provision intends to address an issue that has arisen with
CCB where some child care services did not actually pursue the difference between
fee reductions and actual fee charged to the individual. The fees the provider
charges the individual are reported through to the current computer system and
these fees and hours of child care provided form the basis for the calculation of fee
reductions. Failure to satisfy this obligation carries both criminal and civil penalties
as specified.
Section 201C imposes an obligation on approved providers to charge an individual
who is eligible for ACCS no more in child care fees than they would charge an
individual who is eligible for CCS for the same session of care. This provision is
important to ensure that providers do not raise their fees in expectation of passing
higher fee reductions onto individuals by way of ACCS. An offence of strict liability
applies in cases where it is clear that services are establishing a pricing structure
that is different for individuals who are eligible for CCS as opposed to ACCS to
ensure that providers do not take advantage of situations where individuals are
eligible for the ACCS rate (such as because of their low income, or where a child is
at serious risk of abuse or neglect). Although there is a strict liability offence, it is
intended that action to prosecute the offence would only be taken in serious or
repealed cases.
56
Section 201D imposes an obligation to give statements in relation to a statement
period (usually a CCS fortnight, or other otherwise prescribed) to an individual
containing details about the session fees and other matters set out in subsection (3).
Due to the importance of this provision to the payment system of CCS and ACCS,
provisions in this section provide for an offence of strict liability and a civil penalty,
however it is intended that action to prosecute the offence would only be taken in
serious or repealed cases. A similar obligation applies where, as a result of a
review, a determination about an individual's entitlement is set aside or varied
(section 201E).
Division 3--Requirements in relation to records
Section 202A imposes on obligation to make written records where an approved
provider (who would not otherwise have a record) becomes aware of an event that
relates to or impacts on eligibility for CCS or ACCS, compliance with conditions for
continued approval or other prescribed matters. Although a penalty of strict liability
applies, the fact that the offence is only made out where the provider becomes
aware of relevant events imports a knowledge element into the offence. It is not
intended that the offence would be prosecuted in respect of honest or reasonable
mistakes. There is also a civil penalty and an option to issue infringement notices for
less serious breaches of the obligation. A similar obligation applies in relation to
keeping records (section 202B) for the period specified in subsection 202B(2)).
Section 202C imposes an obligation to make and keep records that evidence the
matters certified in a certificate of risk of serious abuse or neglect (or its
cancellation). A strict liability offence applies, however it is not intended that the
offence would be prosecuted in respect of honest or reasonable mistakes. There is
also a civil penalty and an option to issue infringement notices for less serious
breaches of the obligation.
Section 202D imposes an obligation to keep the Secretary informed about the
location of records following cancellation or suspension of approval (or a provider or
in respect of a service). As for other provisions in this Division, a strict liability
offence applies, however it is not intended that the offence would be prosecuted in
respect of honest or reasonable mistakes. There is also a civil penalty and an option
to issue infringement notices for less serious breaches of the obligation.
Division 4--Requirements relating to large centre-based day care providers
This Division imposes obligations that only apply in relation to "large centre-based
day care providers" as defined in section 4A of the Family Assistance Act.
Section 203A allows the Secretary to require financial information for the current
financial year and up to four previous financial years, where the information is
relevant to determining the financial viability of the provider, but only where the
provider is reasonably capable of providing it. Subsection (4) exempts persons
registered under the Australian Charities and Not for profits Commission Act 2012
who have provided financial information under that Act. Subsection (5) puts beyond
doubt that the disclosure of any personal information under this provision is taken to
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be authorised by law for privacy purposes. Section 203B sets out who notices may
be given to.
Section 203C empowers the Secretary to engage an auditor if she is concerned
about information received under section 203A. An auditor engaged must provide a
report that conforms with the requirements set out in section 203D.
Division 5--Requirement in relation to information and reports
Section 204A sets out a requirement for providers to notify the Secretary at least 42
days before their intention to stop operating a child care service, or to provide further
information about the cessation on request. An offence and a civil penalty applies
for breach of this obligation.
Section 204B is a very important requirement that obliges approved providers to
provide materially accurate reports about sessions of care provided to a child who is
enrolled with the service. These reports are used to help calculate CCS and ACCS
entitlement amounts. There are content, form and manner requirements set out in
subsections (2) and (3) for these reports. As reports under this provision are
essential to payments of CCS and ACCS, a strict liability offence applies, however it
is not intended that action would be taken to prosecute the offence where there is an
honest or reasonable excuse--only serious or repeated offences would be subject to
prosecution. A civil penalty also applies and the Secretary would be able to issue
infringement notices under the Regulatory Powers (Standard Provisions) Act 2014
for contravention of the requirements in this provision. This section imposes an
obligation on approved providers, and compliance with this is therefore a condition of
continued approval. There is limited scope (subsection (6)) for providers to update
reports and this must be done promptly.
Section 204C allows the Secretary to give a notice to a provider instructing them to
withdraw, update or vary a report where the Secretary reasonably considers that a
detail is inaccurate. If a provider does not respond to a notice within the time
required, the contravention is an offence as well as being subject to a civil penalty.
As for section 204B, because reports are essential to payments of CCS and ACCS,
a strict liability offence applies, however it is not intended that action would be taken
to prosecute the offence where there is an honest or reasonable excuse--only
serious or repeated offences would be subject to prosecution.
Section 204D empowers the Secretary to give an approved provider a written notice
requiring the provider to give the Secretary information the Secretary needs in order
to determine whether to reduce the number of child care places allocated to the
service (where the service is the subject of allocation of places). Failure to comply
with the notice exposes a provider to the civil penalty outlined in subsection (5).
Section 204E imposes a requirement to comply with a notice to provide information
about children who are enrolled. An offence and a civil penalty apply to
contraventions.
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Section 204F imposes a requirement for approved providers to provide information
about matters prescribed by the Minister's rules, commonly referred to as notifiable
events. An offence and a civil penalty apply to contraventions.
Section 204G allows the Minister to prescribe rules that impose requirements about
monitoring or investigating whether an approved service is providing care to a child
who is of a class in respect of whom no one is eligible (under paragraph 85ED(1)(b)
of the Family Assistance Act). Such children might be subject to "child-swapping"
measures and the requirements could relate to the provision of information about this
practice.
Section 204H sets out provisions that must be complied with notwithstanding a
provider's cancellation or suspension of approval. This provision has the effect that
any penalty or offence contained in the listed provisions can still apply on
contravention.
Section 204J clarifies, to avoid any doubt, that the collection, use or disclosure of
personal information for the purposes of determining the financial viability of a large
centre-based day care provider is authorised by law for privacy purposes.
Section 204K requires approved providers to inform an appropriate State/Territory
body that, within 6 weeks after it has given a certificate certifying, or applied for a
determination determining, that the provider considers the relevant child is or was at
risk of serious abuse or neglect. The purpose of this provision is to ensure that State
or Territory government agencies responsible for the welfare of children are informed
and able to respond to the welfare risks that such children may be facing.
Division 6--Business continuity payments
This Division sets out provisions that allow for payments of CCS and ACCS to be
made where there are good reasons why approved providers are unable to provide
section 204B reports (for instance, where the computer system that facilitates such
reporting is down).
Items 203 and 204 make minor technical amendments consequential upon the
introduction of CCS and ACCS by this Bill.
Part 8C--Regulatory powers
This Part triggers the monitoring provisions under Part 2 of the Regulatory Powers
(Standard Provisions) Act 2014. Prior to amendments to the child care provisions in
the family assistance law proposed by this Bill, the family assistance law contained
its own monitoring powers and processes. The purpose for triggering the Regulatory
Powers Act 2014 is to ensure that monitoring is brought into line with the consistent
approach embodied by that Act (subject to modifications where these are necessary
in the child care payment context). The triggering of the Regulatory Powers
(Standard Provisions) Act 2014 by provisions in this Bill is not intended to expand the
Commonwealth's regulatory powers with respect to child care matters.
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Division 1--Monitoring powers
Section 219UA sets out: which provisions in the family assistance law are subject to
monitoring under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014;
what information is subject to monitoring; and which provisions are "related
provisions" for the purposes of Part 2 of the Regulatory Powers (Standard
Provisions) Act 2014. Subsection (4) sets out matters that are required to be
specified when triggering Part 2 of the Regulatory Powers (Standard Provisions)
Act 2014 and specifies who or what the following matters are: authorised applicant;
authorised person; issuing officer; relevant chief executive; and relevant court.
Section 219UB sets out "listed child care information provisions" for the purposes of
section 219UA (these provisions are subject to monitoring under Part 2 of the
Regulatory Powers (Standard Provisions) Act 2014).
Section 219UC modifies the Regulatory Powers (Standard Provisions) Act 2014 to
ensure that entry of premises for the purposes of monitoring where either an
occupier or a person who apparently represents the occupier provides consent for
entry. This is important in the child care context because it is likely that educators or
staff working for an occupier may provide consent on behalf of an occupier when an
authorised officer seeks entry for monitoring purposes.
Section 219UD empowers the Secretary to appoint authorised persons for the
purposes of the monitoring powers in the Regulatory Powers (Standard Provisions)
Act 2014. It is intended that persons appointed under this provision will be APS
employees under the Public Service Act 1999.
Division 2--Civil penalties
Section 219VA ensures that the civil penalty provisions in the family assistance law
are enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act
2014. This ensures that orders can be obtained in the Federal Court or Federal
Circuit Court under that Act (by the Secretary) to enforce the penalties.
Section 219VB imposes a requirement for persons to assist with applications for
civil penalty orders, but only where the Secretary suspects or believes that the
person can provide relevant information. This provision is not intended to displace
the privilege in respect of self-incrimination and is intended to only be relied on in
limited cases where it is clear that a person's assistance will assist to obtain an
order.
Division 3--Infringement notices
Section 219WA provides that civil penalty provisions are subject to the infringement
notice provisions in Part 5 of the Regulatory Powers (Standard Provisions) Act 2014.
Infringement officers are appointed under subsection (3) and will be APS employees
of the Department responsible for administering the Act (currently the Department of
Education and Training).
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Subsection (6) operates as a modification of the provision in the Regulatory Powers
(Standard Provisions) Act 2014 that ensures that infringement notices can only be
issued with respect to a single contravention and ensures that a single notice can
cover multiple contraventions. This provision is required because of the related
contraventions that are possible under the family assistance law and enables
providers and the Secretary to outline related contraventions that might occur in
relation to multiple children (for example, multiple contraventions of the notice
requirement in section 204B) or in relation to related behaviour in a single notice. It
is not intended to rely on single notices in relation to behaviour that is, or
contraventions that are, unrelated.
Division 4--General rules about offences and civil penalty provisions
Section 219XA clarifies that the physical elements required to prove an offence are
as set out in the provision that provides for the contravention.
Section 219XB is an interpretative provision that applies where one provision states
that a person commits an offence or is liable to a civil penalty where they contravene
another provision. Subsection (2) makes clear that a reference to the contravention
relates to both provisions.
Items 206 and 207 make minor consequential amendment to the delegation
provision in the family assistance law, including by listing important powers that
should be exercised by the Secretary personally and cannot be delegated.
Item 208 replaces the provision that deals with notice requirements by referring to
"providers", which is a new concept introduced by this Bill.
Items 209, 210 and 211 are minor and technical amendments consequential upon
the introduction of CCS and ACCS.
Item 212 inserts new section 230A into the Family Assistance Administration Act to
deal with the application of the family assistance law to providers that are
partnerships and therefore not legal entities or persons in their own right. This
provision essentially ensures that the obligations and permissions of the provider
rest with the partners. New section 230B is a similar provision that ensures that the
obligations and permissions of other unincorporated providers rest with each
member of the entity or body's governing body.
Items 213, 214 and 215 further clarify the effect of the family assistance law in
respect of partnerships and unincorporated bodies.
Items 216 and 217 amend and limit the standing appropriation in section 233 of the
Family Assistance Administration Act to ensure that additional funds required to pay
full rates of ACCS are drawn through Annual Appropriation Acts, rather than through
the standing appropriation in the family assistance law.
Item 218 is a minor technical amendment.
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Schedule 2--Contingent and consequential amendments
Part 1--Social Services Legislation Amendment (Family Payments Structural
Reform and Participation Measures) Act 2015
Item 1 is contingent on the passage of the Social Services Legislation Amendment
(Family Payments Structural Reform and Participation Measures) Bill 2015 because
it amends a provision that deals with the immunisation requirements (section 6 of the
Family Assistance Act) that is also being proposed to be amended by that Bill.
Part 2--Other consequential amendments
Items 2 and 3 make an amendment to the A New Tax System (Goods and Services
Tax) Act 1999 which is consequential on the removal of "registered care" as a kind of
Commonwealth supported child care by Schedule 1 of this Bill.
Items 4 and 5 make some minor consequential amendments to the Early Years
Quality Fund Special Account Act 2013 consequential upon the new terminology of
"approved provider" and "large centre-based day care provider" introduced by
Schedule 1 of this Bill.
Item 6 makes a minor consequential amendment to the Fringe Benefits Tax
Assessment Act 1986. The previous references to an array of care types for the
purposes of "exempt residual benefits" is replaced by the simpler term "approved
child care service", as introduced by Schedule 1 to this Bill.
Items 7, 8 and 9 make amendments to the Income Tax Assessment Act 1997 that
are consequential upon the cessation of CCB and CCR and the introduction of CCS
and ACCS by Schedule 1 of this Bill. The overall approach to the tax treatment of
child care payments, however, remains unchanged.
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Schedule 3--Other amendments
Part 1--Amendments commencing day after Royal Assent
Items 1 and 2 simplify a provision in the A New Tax System (Goods and Services
Tax) Act 1999 that deals with the GST treatment of child care that is funded by the
Commonwealth. The provision allows the Minister to determine certain kinds of child
care for this purpose to enable new child care funding programmes to be treated in a
consistent way for GST purposes.
Part 2--Amendments commencing 1 July 2016
Items 3 and 4 allow the Minister to prescribe circumstances in which applications
(made after 1 July 2016) for approval of a child care service are taken to not have
been made. This rule making power is intended to be used to limit applications to
address excessive growth within a particular child care service type, specifically
where there are concerns about proven or alleged non-compliance with family
assistance law.
Items 5 and 6 shorten the period in which CCB service approvals are able to be
backdated from the date of application. A change is made from 6 to 3 months. This
provision is transitional in nature and is designed to ensure that lengthy backdated
approvals are not possible in the lead up to the new CCS system.
Items 7 and 8 allows the Secretary to reassess whether a child care service
continues to meet the conditions of continued approval. Where a service has been
identified as no longer meeting their conditions of continued approval, the service's
approval may be cancelled. This provision ensures that sanction action in relation to
non-compliant existing services can occur in the lead up to the new CCS system.
This provision also aligns with the ability of the Secretary, following the
commencement of Schedule 1 of this Bill, to review the approval of approved
providers.
Items 9 to 18 make amendments related to the cessation of enrolment advances.
These amendments ensure that no new enrolment advances received from 1 July
2016 are payable and will ensure that where, from 1 July 2016, enrolment advances
were paid in relation to enrolments that occurred more than four years beforehand,
the Secretary is able to begin recovery of those advances.
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Schedule 4--Application, saving and transitional provisions
Part 1--Introduction
Item 1 sets out definitions for some terms specifically for the purposes of the
application, savings and transitional provisions in Schedule 4 of the Bill. Notably, the
"commencement day" is the day that Schedule 1 commences and the "pre-
commencement period" is taken to be (approximately) the six month period leading
up to that day.
Part 2--Child care subsidy and Additional Child Care Subsidy
Item 2 is essentially an application provision which puts beyond doubt that a person
is only able to be eligible for (and therefore be paid) CCS or ACCS for a session of
care provided on or after commencement day, and not before.
Item 3 is a provision that ensures that individuals who had been in receipt of CCB by
fee reduction, or who had claimed CCB prior to commencement day, are taken to
have made a claim for CCS after commencement day. This provision aims to
ensure a smooth transition into the new CCS system for existing CCB
recipients/claimants by ensuring that they do not need to make a new claim for
assistance with their child care. However it is intended that the Secretary will require
individuals, through her information gathering powers, to provide information that
they will be eligible.
Item 4 is another provision that aims to ensure a smooth transition to the new CCS
system by allowing amounts of CCS to be paid promptly after commencement day.
Under this provision, individuals can make early claims for CCS, and the Secretary,
through her delegates, can exercise certain powers and functions in anticipation of
making CCS and ACCS payments. A provision at the end of the item clarifies that
these powers and functions can only be exercised subject to the application
provision in item 2, about how a person can only be eligible for CCS and ACCS after
commencement day.
Item 5 ensures that the first indexation day for certain new CCS amounts that are
indexed is 1 July 2018, to ensure that indexation will not occur until a year following
commencement day.
Item 6 ensures that the new requirement for arrangements (contracts with child care
providers) to be in writing will apply to arrangements that are already in force on
commencement day. This means, among other things, that any verbal contracts for
the provision of child care need to be set out in writing for a person to be eligible and
entitled to CCS following commencement day.
Part 3--Child care benefit and Child Care Rebate
Item 7 puts beyond doubt that from commencement day onwards, eligibility (and
therefore entitlement) for CCB and CCR is no longer possible in relation to child care
that occurs from that day onwards.
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Item 8 saves the operation of legislation and instruments as they were prior to
amendments made by Schedule 1 of the Bill to ensure that eligibility and entitlement
for CCB or CCR can still be determined and reviewed in respect of child care that
occurred prior to commencement day.
Part 4--Providers of child care services
Item 9 ensures continuity for operators of child care services prior to commencement
day. Under this provision operators are taken to be "providers" under the new CCS
system on and from commencement day.
Item 10 saves the previous effect of the family assistance law to ensure that: liability
for debts under the old law continues; new debts can arise under the old debt rules
in relation to CCB and CCR payments; debts can be recovered under the recovery
powers in the family assistance law as amended by Schedule 1 of this Bill; and old
decisions are still reviewable.
Part 5--Miscellaneous
Item 11 is declaratory and clarifies that the amendment of the delegation power in
the family assistance law does not affect a delegation (or power exercised in reliance
on one) previously in effect.
Item 12 gives the Minister a broad power to make rules, particularly dealing with
transitional issues. Although the power is broad and allows the Minister to modify
the effect of principal legislation, the power is intended to be limited to ensuring the
smooth transition into the new CCS and ACCS system. The power is intended to be
relied on to ensure beneficial outcomes for providers, services and individuals who
may otherwise be affected by unanticipated scenarios that arise at transition. The
power to modify principal legislation is also limited to a two year period from
commencement in light of the expectation that no further transitional issues will arise
after that time.
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Attachment A--Regulation Impact Statement
Jobs for Families Child Care Package November 2015
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