Childcare Rebate Act 1993 (Cth)

Childcare Rebate Act 1993

Act No. 112 of 1993 as amended

Consolidated as in force on 1 July 1999

(includes amendments up to Act No. 13 of 1999)

This Act has uncommenced amendments. For uncommenced amendments, see the endnotes.

Prepared by the Office of Legislative Drafting,

Attorney‑General’s Department, Canberra

Contents

An Act to provide for the payment of rebates for a proportion of certain child care expenses incurred by families

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Part 1—Preliminary

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1Short title [see Note 1]

This Act may be cited as the Childcare Rebate Act 1993.

2Commencement [see Note 1]

(1)
Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2)
If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3Outline of this Act

(1)
This Act establishes the childcare rebate. It is about who is entitled to the rebate, how it can be claimed and the amount of the rebate.
(2)
Part 2 is about which families are eligible to receive the rebate. It provides for the registration of these families by the Health Insurance Commission.
(3)
Part 3 is about the eligibility of registered families for the rebate. It also deals with how claims for the rebate are made.
(4)
Part 4 is about payment of the rebate. It deals with the circumstances in which the rebate is, and is not, payable, and also sets out how amounts of rebate are worked out.
(5)
Part 5 is about administration of the rebate. It deals with the general administrative responsibility for this Act, registration of child care providers, appeals against decisions by the Commission under this Act, the consequences of making false or misleading statements and the recovery of overpayments.
(6)
Part 6 deals with miscellaneous matters.

4Definitions

In this Act, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
approved form means a form approved in writing by the Managing Director for the purposes of the provision in which the expression occurs.
Australia, when referred to in its geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
Australian Immunisation Handbook means the latest edition of the Australian Immunisation Handbook published by the Australian Government Publishing Service.
business partner means a partner in a partnership between 2 or more persons carrying on a business of providing child care.
child care has the meaning given in section 27.
Child Care Provider Number means a number issued under subsection 49(4).
childcare rebate means the rebate payable under this Act.
claim means a claim made under section 32 for payment of the childcare rebate.
Commission means the Health Insurance Commission.
conscientious objection, in relation to the immunisation of a child, has the same meaning as in the Child Care Payments Act 1997.
dependent child has the meaning given in section 11.
family has the meaning given in section 5.
Family Registration Number means a number issued under subsection 19(3).
fee relief means fee relief granted under section 12A of the Child Care Act 1972.
fee relief ceiling means the lowest weekly fee that a child care centre (within the meaning of the Child Care Act 1972) may charge for providing 50 hours of child care in respect of which the maximum amount of fee relief would be payable under the guidelines in force under section 12A of the Child Care Act 1972.
Note: The Health Insurance Commission can tell you what the current fee relief ceiling is.
immunised has the same meaning as in the Child Care Payments Act 1997.
Managing Director means the Managing Director of the Commission.
maximum claimable amount has the meaning given in section 44.
minimum weekly threshold has the meaning given in subsection 43(2).
parent has the meaning given in section 10.
parental member, in relation to a family, means:
(a)
a member of the family who is a parent of a dependent child who is a member of the family; or
(b)
a partner of such a parent.
partner, except in the expression business partner, has the meaning given by subsection 5(2).
registered carer means a person who is registered under section 49.
Note: Section 52A can have the effect of backdating the time from which a person is taken to be a registered carer.
recognised immunisation provider has the same meaning as in section 46A of the Health Insurance Act 1973.
registered family means a family that is registered under section 19.
Note: Section 24A can have the effect of backdating the time from which a family is taken to be a registered family.
reviewable decision means a decision of a kind referred to in section 53.
tax file number has the same meaning as in Part VA of the Income Tax Assessment Act 1936.
week means a period of 7 days starting at the beginning of a Monday and ending at the end of the following Sunday.
weekly child care expenditure has the meaning given in section 41.

4AProvision of child care continues when child is absent

(1)
For the purposes of this Act, if:
(a)
a child would normally have received child care from a registered carer on a particular day; and
(b)
the carer was available to provide child care to the child; and
(c)
the child did not receive child care from the carer on that day; and
(d)
under the arrangement under which the child would normally have received child care on that day, an amount has been paid or is payable to the carer for that day in respect of the child; and
(e)
the child’s non-receipt of child care occurred in circumstances to which a determination under subsection (2) applies;
the carer is taken to have provided child care to the child on that day.
(2)
The Minister may make a written determination that, even if children do not receive child care, child care is taken to have been provided to them in the circumstances specified in the determination.
(3)
Determinations under subsection (2) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

5Definition of family

(1)
Subject to subsection (4), for the purposes of this Act, a family means a group of people that is made up of:
(a)
a person and any dependent children of the person; and
(b)
the partner (if any) of the person and any dependent children of the partner.
(2)
For the purposes of this Act, a person is the partner of another person if:
(a)
the person is legally married to the other person and is not, in the Managing Director’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent basis; or
(b)
all of the following conditions are met:
(i)
the person is living with the other person;
(ii)
the other person is of the opposite sex;
(iii)
the person is not legally married to the other person;
(iv)
the relationship between the person and the other person is, in the Managing Director’s opinion (formed as mentioned in subsection (3)), a marriage-like relationship;
(v)
the person and the other person are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
Note: A prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
· an ancestor of the person; or
· a descendant of the person; or
· a brother or sister of the person (whether of the whole blood or the part-blood).
(3)
In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b) (iv), the Managing Director is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)
the financial aspects of the relationship, including:
(i)
any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)
any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)
any legal obligations owed by one person in respect of the other person; and
(iv)
the basis of any sharing of day-to-day household expenses;
(b)
the nature of the household, including:
(i)
any joint responsibility for providing care or support of children; and
(ii)
the living arrangements of the people; and
(iii)
the basis on which responsibility for housework is distributed;
(c)
the social aspects of the relationship, including:
(i)
whether the people hold themselves out as married to each other; and
(ii)
the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)
the basis on which the people make plans for, or engage in, joint social activities;
(d)
any sexual relationship between the people;
(e)
the nature of the people’s commitment to each other, including:
(i)
the length of the relationship; and
(ii)
the nature of any companionship and emotional support that the people provide to each other; and
(iii)
whether the people consider that the relationship is likely to continue indefinitely; and
(iv)
whether the people see their relationship as a marriage‑like relationship.
(4)
A person is not to be simultaneously treated as a member of more than one family unless:
(a)
the person is a child; and
(b)
members of 2 or more families are legally responsible (whether alone or jointly with a person who is, or is not, a member of either or any of those families) for the day-to-day care, welfare and development of the child.

6Act to bind the Crown

This Act binds the Crown in each of its capacities.

7Extension to external Territories

This Act extends to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Part 2Eligibility of families to register for the childcare rebate

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8Outline of this Part

(1)
This Part is about the eligibility of families to register for the childcare rebate, and the registration process.
(2)
Division 1 is about the requirements for parental responsibility within the family.
(3)
Division 2 is about the requirements relating to residency in Australia.
(4)
Division 3 provides for the registration of families by the Commission.

Division 1Parental responsibility9Parental responsibility requirements for registration

A family is not eligible to register for the childcare rebate unless sthe family includes:
(a)
at least one person who is a parent within the meaning of section 10; and
(b)
at least one other person who is a dependent child of that parent within the meaning of section 11.

10Definition of parent

(1)
A parent is a person who:
(a)
is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of a child; and
(b)
has the care of the child.
(2)
If a person who is not a parent of a particular child under subsection (1) has the day-to-day care of the child on a long term basis (otherwise than in the course of carrying on a business of providing care or a business of a pre-school), the Commission may determine, in writing, that the person is taken to be a parent of the child.
(3)
A person may apply in writing to the Commission for a determination under this section.
(4)
In making determinations under this section, the Commission must comply with any guidelines made under section 62AA in relation to the making of such determinations.

11Definition of dependent child

(1)
Subject to this section, a child is a dependent child of another person if:
(a)
the other person is legally responsible (whether alone or jointly with a third person) for the day-to-day care, welfare and development of the child, and the child is in the other person’s care; or
(b)
the child:
(i)
is not a dependent child of someone else under paragraph (a); and
(ii)
is wholly or substantially in the other person’s care.
(1A)
Subject to subsection (2), a child is a dependent child of another person if the other person is taken, by a determination in force under subsection 10(2), to be a parent of the child.
(2)
A child cannot be a dependent child unless he or she:
(a)
is aged under 13; or
(b)
has turned 13 but is aged under 17, and is a child to whom a determination under subsection (3) applies.
(3)
The Minister may make a written determination that, in the circumstances specified in the determination, a child who has turned 13 but is aged under 17 can be a dependent child.
(4)
Determinations under subsection (3) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

12Dependent children may have more than one family

Section 11 does not prevent a child from being a dependent child of persons who are not members of the same family.

Division 2Residency13Residency requirements for registration

A family is not eligible to register for the childcare rebate unless at least one of the parents:
(a)
is an Australian resident within the meaning of section 14; or
(b)
is taken to be an Australian resident because of section 15 or 16.

14Australian residents

(1)
An Australian resident is a person who resides in Australia and who:
(a)
is an Australian citizen; or
(b)
is, within the meaning of the Migration Act 1958, the holder of a permanent visa that is in effect.
(2)
In deciding for the purposes of this Act whether or not a person resides in Australia, regard must be had to:
(a)
the nature of the accommodation used by the person in Australia; and
(b)
the nature and extent of the family relationship the person has in Australia; and
(c)
the nature and extent of the person’s employment, business or financial ties in Australia; and
(d)
the nature and extent of the person’s assets located in Australia; and
(e)
the frequency and duration of the person’s travel outside of Australia; and
(f)
any other matter relevant to determining whether the person intends to remain permanently in Australia.

15Certain overseas students are to be treated as Australian residents

(1)
A person who is not an Australian resident within the meaning of section 14 is taken to be an Australian resident if the person:
(a)
is undertaking:
(i)
a course of study at an educational institution in Australia; or
(ii)
a course of study in Australia of a kind specified in a determination under subsection (1A); and
(b)
is receiving from the Commonwealth for the purpose of undertaking that course of study, financial assistance of a kind specified in a determination under subsection (2).
(1A)
The Minister may make determinations as to the kinds of courses of study in Australia to which subparagraph (1)(a)(ii) applies.
(2)
The Minister may make determinations as to the kinds of financial assistance to which paragraph (1)(b) applies.
(3)
Determinations under subsections (1A) and (2) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

16Other people may be treated as Australian residents

(1)
A person who is not an Australian resident within the meaning of section 14 is taken to be an Australian resident if the Commission so determines in writing.
(2)
The Commission may so determine if it is satisfied that:
(a)
hardship would be caused to the applicant if the applicant were not treated as an Australian resident; or
(b)
because of the special circumstances of the particular case, the applicant should be treated as an Australian resident.
(3)
A person may apply in writing to the Commission for such a determination.
Note: Refusals to make determinations are reviewable under Division 3 of Part 5.
(4)
In making determinations under this section, the Commission must comply with any guidelines made under section 62AA in relation to the making of such determinations.

Division 3Registration of families18Applying for registration

(1)
A person may apply in writing to the Commission for registration of the family of which he or she is a member.
(2)
The application must:
(a)
list the names of all the members of the family; and
(b)
be in the approved form.
Note: Subsection 5(1) sets out who the members of a family are for the purposes of this Act.
(3)
The Minister may determine that, in order for an applicant to establish a particular matter specified in the determination that is relevant to deciding whether to register a family, the application must contain one or both of the following:
(a)
a statement of the kind specified in the determination;
(b)
evidence of the kind specified in the determination.
(4)
Determinations under subsection (3) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

19Registration by the Commission

(1)
Subject to subsection (2), the Commission must register the family of a person who makes an application under section 18 if and only if it is satisfied that the family meets the requirements of Divisions 1 and 2.
(2)
Without limiting the circumstances under which the Commission must reject an application, the Commission must reject such an application if:
(a)
the circumstances are such that a matter in respect of which the Commission must be satisfied in order to be satisfied that the family meets the requirements of Division 1 or 2 is a matter specified in a determination made for the purposes of subsection 18(3); and
(b)
the application does not comply with the requirements imposed by the determination in relation to the establishment of that matter.
(2A)
The registration of a family is taken to have had effect on the day on which, in the Commission’s opinion, the family was first eligible to be registered.
(3)
If the Commission registers the family, it must:
(a)
issue the family with a number to be known as the family’s Family Registration Number; and
(b)
notify the applicant, in writing, of the number and the day on which the registration is taken to have had effect.
Note: Refusals to register families and decisions as to the effective registration date of families are reviewable under Division 3 of Part 5.

20Variation of registration

(1)
If a person becomes a member of a registered family, that person or any other member of the family may apply to the Commission for a variation in the registration to add the new family member, and the Commission must vary the registration accordingly.
(2)
If a person ceases to be a member of a registered family, that person or any other member of the family may apply to the Commission for a variation in the registration to delete that person’s name, and the Commission must vary the registration accordingly.
Note: Refusals to vary registrations under this section are reviewable under Division 3 of Part 5.

21Variation of registration without application

(1)
If the Commission is satisfied that:
(a)
a person has ceased to be a member of a registered family; and
(b)
the family nevertheless still meets the requirements of Divisions 1 and 2;
the Commission must vary the registration by deleting the person’s name.
(2)
If the Commission is satisfied that a person whose name is not included in the registration of a registered family is or has become a member of that family, the Commission must vary the registration by adding the person’s name.
Note: Variations of registration under this section are reviewable under Division 3 of Part 5.

22Cancellation of registration

(1)
The Commission must cancel a family’s registration if each parental member of the family requests the Commission in writing to do so.
(2)
The Commission must cancel a family’s registration if:
(a)
it is satisfied that the family no longer meets the requirements of Divisions 1 and 2; or
(b)
it is satisfied that the family did not meet the requirements of Divisions 1 and 2 at the time it was registered.
(3)
The Commission may cancel a family’s registration if it is satisfied that the Commission was given incorrect or misleading information in connection with:
(a)
the application for registration of the family; or
(b)
an application for variation of the registration.
Note: Cancellations of registration under subsection (2) or (3) are reviewable under Division 3 of Part 5.

23Procedure for variation or cancellation

(1)
Before varying a family’s registration under section 21 or cancelling a family’s registration under subsection 22(2) or (3), the Commission must give notice in writing, to a parental member of the family, that:

(a)
states that the Commission is considering varying or cancelling the family’s registration; and
(b)
sets out the grounds on which variation or cancellation is being considered; and
(ba)
summarises the evidence and other material on which those grounds are based; and
(bb)
summarises the effect of the notice (including the review process provided for under this Act) on the family’s entitlements to childcare rebate; and
(c)
invites any member of the family to make written submissions to the Commission, within 28 days, stating why the family’s registration should not be varied or cancelled.
(2)
Within the 28 day period commencing on the day on which the notice was given, any member of the family may make such written submissions to the Commission.
(3)
In deciding whether to vary or cancel the family’s registration, the Commission must have regard to any such written submissions made by any member of the family during that period.
(4)
The Commission must give written notice of its decision, to a member of the family who is an adult, as soon as practicable after the decision is made.

24Automatic variation or cancellation of registration as children turn 13

(1)
This section applies if a member of a registered family ceases to be a dependent child because he or she ceases to meet the requirements of subsection 11(2).
(2)
The Commission must vary the registration accordingly if it is satisfied that there are still one or more dependent children in the family.
(3)
The Commission must cancel the registration if it is satisfied that there are no longer any dependent children in the family.
(4)
This section does not affect the Commission’s power to vary or cancel a family’s registration under section 20, 21 or 22.

24ASubsequent registration of families

A family is taken to have been a registered family for the purposes of this Act at a particular time if:
(a)
at that time the family was not registered under section 19 but was eligible to be so registered; and
(b)
the family subsequently becomes so registered, and the registration is taken to have been in effect at that time (see subsection 19(2A)).

Part 3Claiming the childcare rebate

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25Outline of this Part

(1)
This Part is about when registered families can claim the childcare rebate, and how claims are made.
(2)
Division 1 is about the requirements relating to the provision of child care for dependent children of registered families.
(3)
Division 2 is about the requirements of work, training or study commitments for parental members of registered families.
(4)
Division 3 is about the process of claiming the childcare rebate.

Division 1Child care26Child care requirements for the rebate

A family is not eligible for the childcare rebate in respect of a particular period unless:
(a)
during some or all of the period, one or more members of the family who are dependent children were provided with child care within the meaning of section 27; and
(b)
the child care was provided by one or more registered carers; and
(ba)
the family was a registered family at the time the child care was provided; and
(c)
one of the parental members of the family paid for the child care.
Note: Sections 24A and 52A may affect whether a family and/or a carer should be taken to be registered at the time the child care is provided.

27Definition of child care

(1)
Subject to subsection (4):
child care means:
(a)
care of a child provided:
(i)
at the child’s home; or
(ii)
at the home of a registered carer who is providing the care; or
(iii)
at a child care centre within the meaning of section 4A of the Child Care Act 1972; or
(b)
care of a child that is provided otherwise than as mentioned in paragraph (a) if there is in force a determination by the Commission stating that care of that kind provided to a child constitutes child care for the purposes of this Act.
(2)
The Commission may, in writing, make determinations for the purposes of paragraph (1)(b) of the definition of child care in subsection (1).
(3)
A person may apply in writing to the Commission for a determination under this section.
(4)
In making determinations under this section, the Commission must comply with any guidelines made under section 62AA in relation to the making of such determinations.
(4)
Child care provided outside Australia is not taken to be child care for the purposes of this Act.

Division 2Work, training or study commitments28Work, training or study requirements for the rebate

(1)
A family is not eligible for the childcare rebate in respect of a particular period unless, during the whole of that period, each parental member of the family is a person to whom one or more of the following applies:
(a)
the person has recognised work or work related commitments within the meaning of section 29;
(b)
the person has recognised training commitments within the meaning of section 30;
(c)
the person has recognised study commitments within the meaning of section 31;
(d)
the person is included in a class of persons to whom a determination under subsection (2) applies.
(2)
The Minister may make a written determination that any person included in a specified class of persons is exempt from the requirements of paragraphs (1)(a), (b) and (c).
(3)
Determinations under subsection (2) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

29Recognised work or work related commitments

(1)
A person has recognised work or work related commitments if the person:
(a)
is in paid work (whether or not the person performs the work as an employee); or
(b)
receives a carer payment under Part 2.5 of the Social Security Act 1991; or
(c)
receives carer allowance for a disabled adult (within the meaning of section 952 of the Social Security Act 1991) under Part 2.19 of that Act; or
(d)
is registered with the Commonwealth Employment Service in an allowance category as being unemployed; or
(e)
is included in a class of persons to whom a determination under subsection (1A) applies.
(1A)
The Minister may make a written determination that any person included in a specified class of persons is taken to have recognised work or work related commitments.
(1B)
Determinations under subsection (1A) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
(2)
For the purposes of paragraph (1)(d), a person is registered in an allowance category if the person is registered in a category approved under subsection 23(4A) of the Social Security Act 1991 for the purposes of Part 2.12 of that Act as being unemployed.
(3)
For the purposes of paragraph (1)(d), a person is also registered in an allowance category if the person is registered in a category approved under subsection 58(2) of the Student and Youth Assistance Act 1973 for the purposes of Part 8 of that Act as being unemployed.
Note: The Commonwealth Employment Service registers the unemployed in various categories. The categories relevant here are the categories that are relevant for the purposes of receiving a newstart allowance under the Social Security Act 1991 or a youth training allowance under Part 8 of the Student and Youth Assistance Act 1973.

30Recognised training commitments

A person has recognised training commitments if the person is undertaking a training course for the purpose of improving his or her work skills and/or employment prospects.

31Recognised study commitments

A person has recognised study commitments if the person:
(a)
receives assistance under the Student Assistance Act 1973 by way of a benefit under the AUSTUDY scheme; or
(b)
receives assistance under the scheme administered by the Department of Employment, Education and Training and known as the ABSTUDY scheme; or
(c)
is enrolled in an Adult Migrant English Program administered by the Department of Immigration and Ethnic Affairs; or
(d)
is undertaking any other course of education for the purpose of improving his or her work skills and/or employment prospects.

Division 3Claims32Claims for payment of the rebate

(1)
A parental member of a registered family may lodge with the Commission a claim for childcare rebate in respect of amounts that any parental member of the family has paid to one or more registered carers for providing child care to dependent children who are members of the family.
(2)
The claim may relate to expenses incurred in respect of a period of one or more weeks.
(3)
The claim must not relate to child care in respect of which the childcare rebate is not payable because of section 36.
(4)
The claim must be in writing and must be in the approved form.
(5)
For the purposes of this Act, if:
(a)
at the time the child care was provided, the family in question was not a registered family; and
(b)
the family later becomes a registered family and the registration is taken to have effect at that time (see subsection 19(2A));
the claim’s validity is not affected by the lack of registration, and the claim is taken to have been so made on the day on which the claim was lodged, or the registration decision was made, whichever is the later.
(6)
For the purposes of this Act, if:
(a)
at the time the child care was provided, the carer in question was not a registered carer; and
(b)
the carer later becomes a registered carer and the registration is taken to have effect at that time (see subsections 49(3A) and (3B));
the claim may only be lodged after the registration decision was made.
(7)
For the purposes of this Act, if:
(a)
at the time the claim was lodged, the family in question was not a registered family; and
(b)
the family is taken to have been a registered family at the time the child care was provided (see section 24A); and
(c)
the registration was later cancelled;
the claim’s validity is not affected by the cancellation.
(8)
For the purposes of this Act, if:
(a)
at the time the claim was lodged, the carer in question was not a registered carer; and
(b)
the carer is taken to have been a registered carer at the time the child care was provided (see section 52A); and
(c)
the registration was later cancelled;
the claim’s validity is not affected by the cancellation.

33Information etc. to be provided in claims

(1)
The claim must specify:
(a)
the name of each dependent child who was provided with the child care to which the claim relates; and
(b)
the Family Registration Number of the family to which the claimant and the child or children belong; and
(c)
the Child Care Provider Number of each registered carer who provided the child care; and
(d)
the period during which the child care was provided; and
(e)
the amounts paid to registered carers for the child care; and
(f)
such other information as is specified in the approved form for the claim.
(1A)
Paragraph (1)(b) does not apply if, at the time the claim was made, the Commission had not issued a Family Registration Number to the family.
(2)
The claim must be accompanied by such other documents as are specified in the approved form for the claim.
(3)
The amounts specified in the claim as amounts paid to registered carers for the child care must not include:
(a)
any amounts of fee relief that have not yet been deducted from the amounts so paid; or
(b)
any amounts that have been paid or reimbursed in respect of that child care by an employer of a parental member of the family concerned, or by a person acting on the employer’s behalf; or
(c)
any amounts that have been paid or reimbursed in respect of that child care by a person included in a class of persons specified in a written determination made by the Minister; or
(d)
any amounts that the claimant has a reasonable expectation will be paid or reimbursed by a person referred to in paragraph (b) or (c).
(4)
Determinations made under paragraph (3)(c) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

34Receipts

(1)
The claim must be accompanied by receipts that were given to the claimant by or on behalf of the registered carers who provided the child care to which the claim relates.
(2)
Each receipt must be signed by:
(a)
the registered carer who provided the child care to which the receipt relates; or
(b)
a person duly authorised by that registered carer to sign such receipts.
(2A)
Subsection (2) does not apply in circumstances that the Minister determines in writing to be special circumstances of a kind to which this subsection applies.
(2B)
Determinations under subsection (2A) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
(3)
Each receipt must state:
(a)
the name of the child or children to whom was provided the child care to which the receipt relates; and
(b)
the period during which the child care was provided; and
(c)
the registered carer’s Child Care Provider Number; and
(d)
the registered carer’s name and address, and telephone number (if any); and
(e)
the amount paid for the child care; and
(f)
the name of the person who paid the amount.
(3A)
Paragraph (3)(c) does not apply if, at the time the receipt was given, the Commission had not issued a Child Care Provider Number to the carer.
(4)
This section does not limit the scope of subsection 33 (2).

Part 4Payment of the childcare rebateDivision 1Determining whether the rebate is payable

Note: Decisions on whether the rebate is payable in respect of claims are reviewable under Division 3 of Part 5.

35Claims in respect of which the rebate is payable

Subject to section 36, childcare rebate is payable in respect of a claim if and only if:
(a)
the claimant, and each child specified in the claim as required under paragraph 33(1)(a), are members of the same registered family; and
(b)
the claim complies with the requirements of section 33; and
(c)
the information provided under Division 3 of Part 3 in relation to the claim is correct.

36Claims in respect of which the rebate is not payable

(1)
Childcare rebate is not payable in respect of a claim if:
(a)
the claim relates to child care that has not yet been provided; or
(b)
the claim relates to child care provided more than 2 years before the claim was lodged; or
(c)
the claim relates to child care provided by a registered carer to:
(i)
the registered carer’s own dependent children; or
(ii)
if the registered carer has a partner or a business partner—dependent children of the partner or business partner; or
(d)
the claimant, or another person who is a member of the same family as the claimant, has made another claim for payment of the rebate in relation to child care provided, to a child specified in the claim, at one or more times that overlap with one or more of the times at which child care to which the claim relates was provided; or
(e)
in none of the weeks during which the child care to which the claim relates was provided did the claimant’s weekly child care expenditure exceed the minimum weekly threshold; or
(f)
all of the days on which the child care was provided occurred before 1 July 1994; or
(g)
the claim relates to child care that was provided at a time when the registration of the family or carer is not taken to have had effect, or at any other time when the family or carer was not eligible to be registered.
Note: Section 41 describes how the claimant’s weekly child care expenditure is worked out. For the minimum weekly threshold, see section 43.
(2)
Paragraph (1)(d) does not prevent childcare rebate from being payable in respect of a claim in circumstances determined by the Minister.
(3)
A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

36AADecision on claim

(1)
Subject to this section, the Commission is to make a decision on a claim within 14 days after the claim is made.
(2)
If:
(a)
the Commission considers that childcare rebate may not be payable in respect of a claim; and
(b)
the Commission wishes to make further inquiries into matters relevant to the claim;
the Commission must, as soon as practicable, give notice in writing to the parental member of the family who made the claim:
(c)
stating that the Commission considers that childcare rebate may not be payable in respect of the claim; and
(d)
stating that the Commission wishes to make further inquiries and setting out the matters into which the Commission wishes to make those inquiries.
(3)
If the Commission gives a notice under subsection (2) in respect of a claim, the Commission may defer the making of a decision on the claim until:
(a)
the end of 28 days after the day on which the notice was given; or
(b)
the Commission is satisfied as to whether or not childcare rebate is payable in respect of the claim;
whichever first occurs.
(4)
If the Commission gives a notice under subsection (2) but has not informed the claimant in writing of its decision on the claim before the end of the period referred to in paragraph (3)(a), the Commission is taken to have made a decision that childcare rebate is payable in respect of the claim.
Note: A decision that childcare rebate is not payable in respect of a claim is reviewable under Division 3 of Part 5.

36ABSuspension of payments pending inquiries into registration of a family or carer

(1)
If:
(a)
the Commission considers that the registration of a family or of a carer may have to be cancelled; and
(b)
the Commission wishes to make further inquiries into matters relevant to the possible cancellation of the registration;
the Commission may, by written notice to a parental member of the family or the carer, as the case may be, suspend the payment of childcare rebate in respect of a child of the family or a child to whom the carer is providing care, as the case may be.
(2)
A suspension of the payment of childcare rebate in respect of a child that is made under subsection (1) continues until:
(a)
the end of 28 days after the day on which the notice was given; or
(b)
the Commission, by written notice to the parental member or carer, as the case may be, revokes the suspension; or
(c)
the relevant registration is cancelled;
whichever first happens.
(3)
A suspension of the payment of childcare rebate under subsection (1) is taken never to have affected the payability of childcare rebate if the period of the suspension ends under paragraph (2)(a) or (b).

36ASuspension of payments if cancellation of a family’s registration is being considered

(1)
Subject to subsections (2) and (3), childcare rebate is not payable in respect of a claim if:
(a)
the Commission has issued a notice under subsection 23(1) stating that the Commission is considering cancelling the registration of the family concerned; and
(b)
the claim relates to either or both of the following:
(i)
child care provided after the issue of the notice;
(ii)
child care provided before the issue of the notice, at times specified in the notice as being relevant to the proposed cancellation.
(2)
A notice under subsection 23(1) does not affect, and is taken never to have affected, the payability of childcare rebate in respect of the claim if, following the issue of the notice:
(a)
the Commission decides not to cancel the family’s registration; or
(b)
the Commission cancels the family’s registration, but the family’s registration is restored after reconsideration or review of that decision under Division 3 of Part 5.
(3)
Subsection (1) does not apply if:
(a)
the Commission cancels the family’s registration following the issue of the notice; and
(b)
the Commission subsequently re-registers the family under section 19; and
(c)
the claim relates to child care provided after the family becomes eligible for re-registration.

36BSuspension of payments if cancellation of a carer’s registration is being considered

(1)
Subject to subsections (2) and (3), childcare rebate is not payable in respect of a claim if:
(a)
the Commission has issued a notice under subsection 52(1) stating that the Commission is considering cancelling the registration of the registered carer concerned; and
(b)
the claim relates to either or both of the following:
(i)
child care provided after the issue of the notice;
(ii)
child care provided before the issue of the notice, at times specified in the notice as being relevant to the proposed cancellation.
(2)
A notice under subsection 52(1) does not affect, and is taken never to have affected, the payability of childcare rebate in respect of the claim if, following the issue of the notice:

(a)
the Commission decides not to cancel the carer’s registration; or
(b)
the Commission cancels the carer’s registration, but the carer’s registration is restored after reconsideration or review of that decision under Division 3 of Part 5.
(3)
Subsection (1) does not apply if:
(a)
the Commission cancels the carer’s registration following the issue of the notice; and
(b)
the Commission subsequently re-registers the carer under section 49; and
(c)
the claim relates to child care provided after the carer becomes eligible for re-registration.

37Child care provided before 1 July 1994

Childcare rebate is not payable in respect of child care provided before 1 July 1994.

38Children who are members of more than one family

(1)
If a child is a member of more than one family, this Division does not prevent parents of the child who are members of different families from claiming, in respect of the same week, childcare rebate for payments to registered carers for providing care to the child. However, except in circumstances determined by the Minister, the claims must not relate to provision of child care to the same child during the same hours on the same day.
(2)
A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

39Paying the rebate

(1)
If childcare rebate is payable, the Managing Director must, on behalf of the Commonwealth, pay the claimant the amount worked out under Division 2 in respect of the claim.
(2)
The amount is to be paid in the way determined by the Managing Director.

Division 1AThe immunisation requirement39AThe immunisation requirement

(1)
If:
(a)
a claim for childcare rebate is made on or after the commencement of this Division in respect of a child under 7; and
(b)
the claim is the first one made in respect of the child after:
(i)
the commencement of this Division; or
(ii)
the last one made in respect of the same child in relation to which the Commission was satisfied as mentioned in a paragraph of subsection (3); and
(c)
the Commission is not satisfied as mentioned in a paragraph of subsection (3) in relation to the claim;
childcare rebate is payable in respect of the claim, and any subsequent claim for childcare rebate made in respect of the child within 28 days after the first-mentioned claim was made, despite the fact that the Commission is not so satisfied in relation to any of the claims.
(2)
If:
(a)
subsection (1) applies in respect of a child; and
(b)
a claim for childcare rebate is made in respect of the child after the end of the 28 day period mentioned in that subsection; and
(c)
the child was still under 7 when the claim was made;
childcare rebate is not payable in respect of the claim unless the Commission is satisfied as mentioned in a paragraph of subsection (3).
(3)
The Commission is to be satisfied in relation to a claim that:
(a)
the child was immunised when the claim was made; or
(b)
before the claim was made:
(i)
a recognised immunisation provider certified in writing that he or she had discussed with the person who made the claim the benefits and risks of immunising the child; and
(ii)
the person declared in writing that he or she had a conscientious objection to the child being immunised; or
(c)
if the child is a dependent child of another person, the claim was made after:
(i)
a recognised immunisation provider certified in writing that he or she had discussed with the other person the benefits and risks of immunising the child; and
(ii)
the other person declared in writing that he or she had a conscientious objection to the child being immunised; or
(d)
both of the following conditions are satisfied:
(i)
when the claim was made the immunisation of the child was contraindicated under the specifications set out in the Australian Immunisation Handbook;
(ii)
a recognised immunisation provider has certified in writing that the immunisation is medically contraindicated under those specifications; or
(e)
a recognised immunisation provider has certified in writing that the vaccine for immunising the child was not available immediately before the claim was made; or
(f)
a registered medical practitioner has certified in writing that the child has recovered from the relevant disease, has developed a natural immunity and does not require immunisation; or
(g)
the child is in a class of children exempted from the requirement to be immunised by a direction under subsection 39B(1).
(4)
If:
(a)
the Commission is satisfied as mentioned in a paragraph of subsection (3) in relation to the child; and
(b)
a person later makes another claim for child care rebate in relation to the child;
the Commission has to regard that paragraph as also being satisfied in relation to the child and the later claim, unless the Commission considers that there is reason to require the matter in the paragraph to be re-established.

39BMinister’s directions

(1)
The Minister may, in writing, direct that children included in a class of children specified in the direction are exempted from the requirement to be immunised.
(2)
The Minister may, in writing, give directions about the way in which the Commission is to satisfy itself about a matter mentioned in subsection 39A(3), including the matters to be taken into account by the Commission for that purpose.
(3)
A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Division 2The amount of the rebate

Note: Decisions about the amounts of childcare rebate payable, and decisions that no amount of childcare rebate is payable, are reviewable under Division 3 of Part 5.

Subdivision AGeneral40Overall calculation of the amount payable

(1)
The amount of childcare rebate payable in respect of a claim is the amount equal to the sum of each of the amounts payable under Subdivision C in respect of a week to which the claim relates.
Note: Under Subdivision C, amounts of rebate are worked out for each week, based on each weekly child care expenditure worked out under Subdivision B. To work out the claimant’s entitlement, the Commission adds together all the amounts of rebate for the weeks covered by the claim.
(2)
The amount is to be rounded upwards to the nearest 5 cents.

Subdivision BWorking out the weekly child care expenditure41Weekly child care expenditure

(1)
A claimant’s weekly child care expenditure for a week during which child care to which a claim relates was provided is:
(a)
if the child care was provided to only one dependent child—the amount of child care expenditure for the week worked out under subsections (2) and (3) in relation to the child; or
(b)
if the child care was provided to more than one dependent child—the sum of the amounts of child care expenditure for the week worked out under subsections (2) and (3) in relation to each of the children.
(2)
The amount of child care expenditure for the week in relation to a child is:
(a)
if all of the child care to which the claim relates was provided in that week—the amount specified in the claim as the amount paid to one or more registered carers for providing the child care; or
(b)
if it was provided in more than one week—the amount worked out using the formula in subsection (3).
(3)
The formula is as follows:
where:
Amount paid is the amount specified in the claim as the amount paid to one or more registered carers for providing the child care.
Total period of care means the number of days in the period starting at the beginning of the first day on which that child care was provided and ending on the last day on which it was provided (whether or not the child care was provided on each of the days during the period).
Period of care in the week means the number of the days in that period that occurred during the week in question.

42Expenditure covered by other claims

If the claimant, or another member of the claimant’s family, has previously made any other claims relating to child care provided during that week, the weekly child care expenditure worked out in respect of the claim referred to in section 41 is increased by adding to it all the amounts of weekly child care expenditure, for that week, worked out under section 41 in respect of all such other claims.

Subdivision CWorking out the amount of the rebate for a week43The minimum weekly threshold

(1)
No amount of childcare rebate is payable to the claimant in respect of a week for which the claimant’s weekly child care expenditure did not exceed the minimum weekly threshold.
(2)
The minimum weekly threshold is the difference between the fee relief ceiling and the maximum amount of fee relief that would be payable under the guidelines in force under section 12A of the Child Care Act 1972 in respect of a child care centre (within the meaning of the Child Care Act 1972) for providing a child with 50 hours of child care.
Note: The Health Insurance Commission can tell you what the current minimum weekly threshold is.

44The maximum claimable amounts

(1)
The claimant’s maximum claimable amount for a week is the amount specified in subsection (2) or (3) (whichever is applicable).
(2)
The maximum claimable amount is the fee relief ceiling if the claimant paid amounts to one or more registered carers for providing child care during that week to only one dependent child of the claimant.
(3)
The maximum claimable amount is twice the fee relief ceiling if the claimant paid amounts to one or more registered carers for providing child care during that week to more than one dependent child of the claimant.
Note: The Health Insurance Commission can tell you what the current fee relief ceiling is.

45Calculation of rebate

Rebate percentage
(1)
The rebate percentage that applies in working out the childcare rebate for a week (the current week) is:
(a)
30% if a family payment notice, or family income notice, under section 46 applies to either parental member for the current week; or
(b)
20% in all other cases.
Amount of rebate—claims less than the maximum claimable amount
(2)
If the claimant’s weekly child care expenditure for the current week:
(a)
exceeds the minimum weekly threshold; and
(b)
is less than the claimant’s maximum claimable amount for the current week;
then the amount of childcare rebate payable on the claim for the current week is worked out using the formula:

Amount of rebate—claims equal to or greater than the maximum claimable amount
(3)
If the claimant’s weekly child care expenditure for the current week equals or exceeds the claimant’s maximum claimable amount for the current week, then the amount of childcare rebate payable on the claim for the current week is worked out using the formula:

Reduction of rebate if other claims already made
(4)
If the claimant, or another member of the claimant’s family, has previously made any other claims relating to child care provided during the current week, then the rebate calculated under subsection (1) or (2) is reduced by the amounts of childcare rebate paid or payable in respect of those other claims.

46Family allowance notices and family income notices

Issue of family allowance notice
(1)
The Secretary may issue a notice (a family allowance notice) to a person stating that the person is receiving, or will receive, family allowance. The notice has effect from a date specified in the notice (which may be earlier than the date on which the notice is issued).
Issue of family income notice
(2)
The Secretary may issue a notice (a family income notice) to a person stating that the person satisfies the family income test. The notice has effect from a date specified in the notice (which may be earlier than the date on which the notice is issued).
Cancellation of notices by Secretary
(3)
The Secretary may issue a notice to a person cancelling a family allowance notice or family income notice previously issued to the person. The cancellation has effect from a date specified in the cancellation notice (which may be earlier than the date on which the cancellation notice is issued).
Note: A cancellation notice might result in an overpayment for the purposes of section 61. For example, if the cancellation has effect for a week for which childcare rebate has already been paid at the 30% rate.
Matters relevant to issue or cancellation of notices by Secretary
(4)
In deciding whether to issue or cancel a family allowance notice or family income notice, the only matters that the Secretary may take into account are the matters that can be taken into account under the Social Security Act 1991 in deciding whether a person should receive family allowance or whether a person satisfies the family income test.
Recipient of notice to notify Commission of cancellation
(5)
A person to whom a cancellation notice is issued must notify the Commission in writing of the cancellation, and its date of effect, within 14 days after receiving the cancellation notice.
Penalty: 20 penalty units.
Termination of family income notice by parental member
(6)
A family income notice issued to a parental member may be terminated by either parental member by giving a written termination notice to the Commission. The termination has effect from a date specified in the termination notice (which may be earlier than the date on which the termination notice is given to the Commission).
Review of decisions relating to notices
(7)
Chapter 6 of the Social Security Act 1991 applies to the following decisions as if they were specified in subsection 1240(1) of that Act:
(a)
a decision not to issue a family allowance notice or family income notice;
(b)
a decision under subsection (3) to cancel a family allowance notice or family income notice.
Manner of giving notices
(8)
A notice by the Secretary to a person under this section may be included in any other notice issued or given to the person under the Social Security Act 1991.
(9)
A notice by the Secretary under this section that is not included in another notice in accordance with subsection (8) may be given personally or by post.
No implied power to vary or revoke notices
(10)
Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to any notice issued or given under this section.
Requirement to provide information
(11)
When issuing a family allowance notice or family income notice, the Secretary may include a requirement that the person to whom the notice is issued must notify the Secretary, within a reasonable period specified in the notice, if:
(a)
a stated event or change of circumstances occurs; or
(b)
the person becomes aware that a stated event or change of circumstances is likely to occur.
The stated event or change of circumstances must be relevant to a decision of the Secretary as to whether the family allowance notice or family income notice ought to be cancelled.
(12)
If the Secretary has issued a family allowance notice or family income notice to a person, the Secretary may issue a notice to the person under this subsection requiring the person to give the Secretary, within a reasonable period specified in the notice, a written statement about a matter that might be relevant to a decision of the Secretary as to whether the family allowance notice or family income notice ought to be cancelled.
(13)
A notice that contains a requirement under subsection (11) or (12) for a person to give information or a statement to the Secretary must state how the recipient is to give the information or statement. However, the notice is not invalid merely because it fails to comply with this subsection.
(14)
A requirement under subsection (11) or (12) in relation to a family income notice does not apply at any time after the family income notice is terminated under subsection (6).
(15)
A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (11) or (12) to the extent that the person is capable of complying with the notice.
Penalty: 20 penalty units.
Delegation by Secretary
(16)
The Secretary may by signed instrument delegate to an officer of the Department of Social Security all or any of the powers of the Secretary under this section.
Interpretation
(17)
In this section:
family income test means the family income test set out in Module C of the Family Tax Payment Rate Calculator in section 1070 of the Social Security Act 1991.
family allowance means family allowance under the Social Security Act 1991.
Secretary means the Secretary to the Department of Social Security.

Part 5AdministrationDivision 1General47General administration of this Act

The Commission has the general administration of this Act.

48Additional functions of the Commission

(1)
In addition to the functions of the Commission under the Health Insurance Commission Act 1973, the Commission has such additional functions as are conferred on the Commission under this Act.
(1A)
Anything done under this Act by the Managing Director, or by a member of the Commission’s staff in the name of the Managing Director, is taken to have been done by the Commission.
(2)
Anything done by or on behalf of the Commission in the performance of such additional functions is taken, for all purposes, to have been done in the performance of its functions under the Health Insurance Commission Act 1973.

Division 2Registered carers49Registration of carers

(1)
A person or body may apply in writing to the Commission for registration as a carer.
(2)
The application must be in the approved form.
(3)
The Commission must register the applicant if and only if it is satisfied that the applicant is eligible for registration.
(3A)
Subject to subsection (3B), the registration of an applicant is taken to have had effect:
(a)
on the day on which, in the Commission’s opinion, the applicant was first eligible to be registered; or
(b)
on the day occurring 2 years prior to the day on which the application for registration was made;
whichever occurs later.
(3B)
The Commission may specify periods, occurring after that day but before the day on which the application for registration was made, during which the registration is taken not to have had effect, being periods for which the Commission is satisfied the applicant was not eligible to be registered.
(4)
If the Commission registers the applicant, it must:
(a)
issue the applicant with a number to be known as the person’s Child Care Provider Number; and
(b)
give written notice to the applicant setting out:
(i)
the number so issued; and
(ii)
the day on which the registration is taken to have had effect; and
(iii)
the periods (if any) during which the registration is taken, because of subsection (3B), not to have had effect; and
(iv)
the matters of which the applicant is required to notify the Commission under subsection 50A(1).
Note: Refusals to register carers and decisions as to the effective registration date of carers are reviewable under Division 3.

50Eligibility for registration

(1)
Subject to subsection (2), an applicant is eligible for registration if:
(a)
the applicant is providing, or intends within a reasonable time after making the application to provide, child care to children other than:
(i)
the applicant’s own dependent children; and
(ii)
if the applicant has a partner or a business partner—dependent children of the partner or business partner; and
(b)
provision of the child care complies, or (if the child care is not being provided at the time the application is made) will comply, with any requirements imposed on the provision of the child care by a law of the Commonwealth or a State or Territory relating to child care; and
(c)
in the case of an individual—the applicant has turned 18 or has a qualification of a kind to which a determination under subsection (1A) applies; and
(d)
in the case of a body corporate—the applicant’s powers extend to providing the child care that is being, or (if the child care is not being provided at the time the application is made) is intended to be provided.
(1A)
The Minister may make a written determination that an applicant who has not turned 18 must have a qualification of a kind specified in the determination.
(1B)
Determinations made under subsection (1A) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
(2)
An applicant is not eligible for registration unless:

(a)
the applicant has a tax file number; and
(b)
the application contains a statement to that effect.
(3)
The Commission must accept a statement made under paragraph (2)(b) unless the Commissioner of Taxation has informed the Commission that the applicant does not have a tax file number.
(4)
This section does not authorise the Commission:
(a)
to require or request a person to quote the person’s tax file number; or
(b)
to seek or obtain, in any other way, a person’s tax file number; or
(c)
to record a person’s tax file number.
Note: See sections 8WA and 8WB of the Taxation Administration Act 1953 concerning unauthorised activities relating to a person’s tax file number.
(5)
The Commission may ask the Commissioner of Taxation to provide information on whether an applicant or a registered carer has a tax file number.
(6)
The Commission must not, in asking the Commissioner of Taxation to provide such information, provide to the Commissioner of Taxation a registered carer’s Child Care Provider Number.
(7)
Subsection (2) does not apply if the Commission is satisfied that the applicant is a body whose income is, under the Income Tax Assessment Act 1936, exempt from income tax.

50ARegistered carer to notify Commission of matters affecting eligibility for registration

(1)
If a person who is a registered carer:
(a)
has, after the person was registered and whether before or after the commencement of this section, become aware of any matter existing when the person was registered as a result of which the person was ineligible for registration; or
(b)
has, whether before or after the commencement of this section, become aware of any matter occurring after the person was registered as a result of which the person is no longer eligible for registration;
the person must notify the Commission in writing of the matter as soon as practicable after:
(c)
the person became aware of the matter; or
(d)
the commencement of this section;
whichever is the later.
Penalty: 20 penalty units.
(2)
The Commission must determine the matters of which registered carers are required to notify the Commission under subsection (1).
(3)
In making determinations under subsection (2), the Commission must comply with any guidelines made under section 62AA in relation to the making of such determinations.

51Cancellation of registration

(1)
The Commission must cancel a registered carer’s registration if the registered carer requests the Commission in writing to do so.
(2)
The Commission must cancel a registered carer’s registration if:
(a)
it is satisfied that the registered carer is no longer eligible for registration; or
(b)
it is satisfied that the registered carer was not eligible for registration at the time of registration.
(3)
The Commission may cancel a registered carer’s registration if it is satisfied that the Commission was given incorrect or misleading information in connection with the registered carer’s application for registration.
Note: Cancellations of registration under subsection (2) or (3) are reviewable under Division 3.

52Procedure for cancellation

(1)
Before cancelling a registered carer’s registration under subsection 51(2) or (3), the Commission must give notice in writing to the person that:
(a)
states that the Commission is considering cancelling the registered carer’s registration; and
(b)
sets out the grounds on which cancellation is being considered; and
(ba)
summarises the evidence and other material on which those grounds are based; and
(bb)
summarises the effect of the notice (including the review process provided for under this Act) on a family’s entitlement to childcare rebate in respect of child care provided by the registered carer; and
(c)
invites the registered carer to make written submissions to the Commission, within 28 days, stating why his or her registration should not be cancelled.
(2)
Within the 28 day period commencing on the day on which the notice was given, the registered carer may make such written submissions to the Commission.
(3)
In deciding whether to cancel the registered carer’s registration, the Commission must have regard to any such written submissions the registered carer made during that period.

52ASubsequent registration of carers

A person is taken to have been a registered carer for the purposes of this Act at a particular time if:
(a)
at that time the person was not registered under section 49 but was eligible to be so registered; and
(b)
the person subsequently becomes so registered, and the registration is taken to have been in effect at that time (see subsections 49(3A) and (3B)).

Division 3Review of decisions53Decisions that may be subject to reconsideration by the Commission

The following decisions are reviewable decisions for the purposes of this Act:
(aa)
a refusal to make a determination under section 10 that a person is taken to be a parent of a particular child;
(a)
refusal to make a determination under section 16 that a person is taken to be an Australian resident;
(b)
refusal to register a family under section 19;
(ba)
a decision under subsection 19(2A) as to the day on which the registration of a family under section 19 is taken to have had effect;
(c)
refusal to vary the registration of a family under section 20;
(d)
variation of a family’s registration under section 21 without application from a member of the family;
(e)
cancellation of a family’s registration under subsection 22 (2) or (3);
(f)
a decision under Part 4 that childcare rebate is not payable in respect of a claim;
(g)
a decision under Division 2 of Part 4 as to the amount (if any) of childcare rebate payable in respect of a claim;
(h)
refusal to register a person as a carer under section 49;
(ha)
a decision under subsection 49(3A) as to the day on which the registration of a person as a carer under section 49 is taken to have had effect;
(hb)
a decision under subsection 49(3B) as to a period during which the registration of a person as a carer under section 49 is taken not to have had effect;
(i)
cancellation of a person’s registration as a carer under subsection 51(2) or (3);
(j)
a decision under subsection 36AB(1) to suspend payment of childcare rebate.

54Deadline for reaching decisions

(1)
If this Act provides for a person to apply to the Commission for a reviewable decision, the Commission must make the decision within the decision-making period (see subsection (3)).
(2)
Subject to subsections (2A) and (2B), the Commission is taken, for the purposes of this Division, to have made a decision to refuse the application if it has not informed the applicant in writing of its decision before the end of the decision-making period.
(2A)
Despite subsection (2), if:
(a)
the reviewable decision is a decision of a kind referred to in paragraph 53(e); and
(b)
the Commission has not informed the applicant in writing of its decision before the end of the decision-making period;
the Commission is taken, for the purposes of this Division, to have decided not to cancel the family’s registration.
(2B)
Despite subsection (2), if:
(a)
the reviewable decision is a decision of a kind referred to in paragraph 53(i); and
(b)
the Commission has not informed the applicant in writing of its decision before the end of the decision-making period;
the Commission is taken, for the purposes of this Division, to have decided not to cancel the carer’s registration.
(3)
In this section:
application includes a claim.
decision-making period means the period of:
(a)
28 days after the Commission receives the application; or
(b)
if the Commission has within those 28 days, given the applicant a written request for further information about the application:
(i)
if the reviewable decision is a decision of a kind referred to in paragraph 53(e) or (i)—10 working days after the Commission receives that further information; or
(ii)
in any other case—28 days after the Commission receives that further information.
working day means a day that is not a Saturday or Sunday or a public holiday in any State or Territory.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the Code of Practice determined under section 27B of that Act.

55Applications for reconsideration of decisions

(1)
A person affected by a reviewable decision who is dissatisfied with the decision may apply to the Commission for the Commission to reconsider the decision.
(2)
The application must:
(a)
be in writing; and
(b)
set out the reasons for the application.
(3)
The application must be made within:
(a)
28 days after the applicant is informed of the decision; or
(b)
if, either before or after the expiration of that period of 28 days, the Commission extends the period within which the application may be made—the extended period for making the application.
(4)
An approved form of application may provide for verification by statutory declaration of statements in applications.

56Reconsideration by the Commission

(1)
Upon receiving such an application, the Commission must:
(a)
reconsider the decision; and
(b)
affirm, vary or revoke the decision.
(2)
If the Commission revokes a decision that was a decision refusing to do something, revocation is taken to be a decision to do that thing.
(3)
The Commission’s decision on reconsideration of a decision has the effect as if it had been made under the application under which the original decision was made.
(4)
The Commission must give to the applicant a notice stating its decision on the reconsideration together with a statement of its reasons for its decision.

57Deadline for reconsiderations

(1)
The Commission must make its decision on reconsideration of a decision within 28 days after receiving an application for reconsideration.
(2)
The Commission is taken, for the purposes of this Division, to have made a decision confirming the original decision if it has not informed the applicant of its decision on the reconsideration before the expiration of the period of 28 days.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the Code of Practice determined under section 27B of that Act.

58Review by the AAT

Applications may be made to the AAT for a review of a reviewable decision if the Commission has confirmed or varied the decision under section 56.

Division 4False or misleading statements59References to making statements

A reference in this Division to making a statement includes a reference to issuing or presenting a document, and a reference to a statement is to be construed accordingly.

60Knowingly making false or misleading statements

(1)
A person must not make, or authorise the making of, a statement (whether oral or in writing) if the person knows that the statement is:
(a)
false or misleading in a material particular; and
(b)
capable of being used in connection with a claim or an application under this Act.
Penalty: Imprisonment for 6 months.
(2)
If:
(a)
a person makes a statement (whether oral or in writing) that is false or misleading in a material particular; and
(b)
the statement is capable of being used in connection with a claim or an application under this Act; and
(c)
the material particular in respect of which the statement is false or misleading is substantially based upon a statement made, either orally or in writing, to the person or to an agent of the person by another person who is an employee or agent of the first-mentioned person; and
(d)
the other person knew that his or her statement was false or misleading in a material particular; and
(e)
the other person knew, or had reasonable grounds to suspect, that his or her statement would be used in preparing a statement of the kind referred to in paragraph (b);
the other person is guilty of an offence.
Penalty: Imprisonment for 6 months.
(3)
The reference in subsection (2) to an employee of a person is a reference, if the person is a corporation, to:
(a)
a director, secretary, manager or employee of the corporation; or
(b)
a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instrument; or
(c)
a liquidator of the corporation appointed in voluntary winding up.

Division 5Recovery of overpayments61Recovery of amounts paid

(1)
This section applies if an amount paid, purportedly by way of childcare rebate, exceeds the amount of childcare rebate (if any) that should have been paid.
(2)
The amount of the excess is recoverable as a debt due to the Commonwealth from the person to whom the amount was paid, or from the estate of that person.
(3)
The amount is so recoverable whether or not it was paid to that person, and whether or not any person has been convicted of an offence relating to the overpayment.
(4)
If the Managing Director has served a notice on the person, or on the estate, claiming the excess as a debt due to the Commonwealth and:
(a)
within the period referred to in subsection (6), an arrangement has been entered into between the Managing Director and the person or estate for the repayment of the excess, and there has been a default in payment of an amount required to be paid under the arrangement; or
(b)
at the end of that period, such an arrangement has not been entered into and all or part of the excess remains unpaid;
then, from the day after the end of the period, interest at the rate specified in the regulations becomes payable on so much of the excess as from time to time remains unpaid.
(5)
The interest so payable is recoverable as a debt due to the Commonwealth from the person or the person’s estate.
(6)
The period for entering into an arrangement under paragraph (4)(a) is a period of 3 months following the service of the notice under subsection (4), or such longer period as the Managing Director allows.
(7)
Despite subsections (4) and (5), in any proceedings instituted by the Commonwealth for the recovery of an amount due under subsection (5), the court may order that the interest payable under that subsection is, and is taken to have been, so payable from a day later than the day referred to in that subsection.

62Offsetting overpayments against future payments of the rebate

(1)
Despite section 61, if an amount paid to a person, purportedly by way of childcare rebate under this Act, exceeds the amount of childcare rebate (if any) that should have been paid to that person (the excess amount) the Managing Director may, if the person so agrees, reduce the amount of any childcare rebate that subsequently becomes payable to that person under this Act.
(2)
The amount of any reduction must not exceed the amount by which the sum of the excess amount and any excess amounts previously paid to that person is greater than the sum of any amounts recovered by the Commission by one or more previous applications of section 61 or this section.

62AReimbursement etc. of child care expenses by employers etc.

For the purposes of this Division, if:
(a)
childcare rebate has been paid in respect of the provision of child care; and
(b)
either:
(i)
a parental member of the family concerned is wholly or partly reimbursed in respect of that child care; or
(ii)
that child care is wholly or partly paid for;
by an employer of any parental member of the family, a person acting on the employer’s behalf, or a person included in a class of persons specified by the Minister by determination under paragraph 33(3)(c); and
(c)
the amount reimbursed or paid was not, under paragraph 33(3)(b), (c) or (d), fully taken into account in claiming the childcare rebate in respect of that child care;
the amount of childcare rebate that should have been paid is taken to be the amount of childcare rebate that would have been payable if the reimbursement or payment had been so taken into account.

62BEffect of this Division on other rights of recovery

This Division does not affect any rights of recovery, in respect of payments made or purportedly made under this Act, that the Commonwealth has apart from this Division.

Part 6Miscellaneous

Do not delete: Division placeholder

62AAGuidelines for making determinations

(1)
If a section of this Act contains a provision declaring that the Commission must, in making determinations under that section, comply with any guidelines made under this section in relation to the making of such determinations, the Minister may make guidelines about the making of such determinations.
(2)
The guidelines are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

63Appropriation

Payment of childcare rebate under this Act must be made out of the Consolidated Revenue Fund, which is appropriated accordingly.

63ADelegation

(1)
The Managing Director may by signed instrument delegate to an officer of the Commission any of the powers of the Managing Director under this Act.
(2)
The power of delegation under subsection (1) does not affect any power of delegation that the Commission has under the Health Insurance Commission Act 1973.

64Regulations

The Governor-General may make regulations prescribing matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient for carrying out or giving effect to this Act.

Notes to the Childcare Rebate Act 1993

Note 1

The Childcare Rebate Act 1993 as shown in this consolidation comprises Act No. 112, 1993 amended as indicated in the Tables below.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act

Number

and year

Date

of Assent

Date of commencement

Application, saving or transitional provisions

Childcare Rebate Act 1993	112, 1993	24 Dec 1993	24 June 1994
Human Services and Health Legislation Amendment Act 1994	80, 1994	23 June 1994	S. 13: (a)	—
Student Assistance (Youth Training Allowance—Transitional Provisions and Consequential Amendments) Act 1994	184, 1994	23 Dec 1994	1 Jan 1995 (b)	—
Family Law Reform (Consequential Amendments) Act 1995	140, 1995	12 Dec 1995	Schedule 1 (Part 4): 11 June 1996 (see Gazette 1996 No. GN5) (c)	—
Human Services and Health Legislation Amendment Act (No. 3) 1995	149, 1995	16 Dec 1995	Schedule 1 (items 2-4, 6, 8-11, 13, 18, 19, 21-27, 30, 31, 33-35, 37-40, 43-45, 54 and 55): 1 July 1994 (d) Schedule 1 (item 7): 1 Sept 1994 (d) Schedule 1 (items 1, 5, 12, 14-17, 20, 28, 29, 32, 36, 41, 42 and 46‑53): (d)	—
Social Security and Veterans’ Affairs Legislation Amendment Act 1995	1, 1996	9 Jan 1996	S. 3(5): 20 Sept 1996 (e)	—
Child Care Legislation Amendment Act 1996	80, 1996	19 Dec 1996	Schedule 1: 1 July 1997 Remainder: Royal Assent	Sch. 2 (items 28, 29) [see Table A]
Social Security Legislation Amendment (Budget and Other Measures) Act 1996	84, 1996	23 Dec 1996	Schedule 2 (item 16): (f)	—
Child Care Payments (Consequential Amendments and Transitional Provisions) Act 1997	196, 1997	8 Dec 1997	Schedule 1 (item 8): [see (g) and Note 2]	—
Child Care Legislation Amendment Act 1998	13, 1998	16 Apr 1998	Schedule 1 (items 25, 26): 27 Apr 1998 (see Gazette 1998, No. S167) (h)	—
Social Security and Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Act 1998	93, 1998	15 July 1998	Schedule 7 (items 67-70): 1 Apr 1998 (i)	Sch. 7 (item 67) [see Table A]
Assistance for Carers Legislation Amendment Act 1999	13, 1999	9 Apr 1999	Schedule 2 (item 67): (j)	—

(a) The Childcare Rebate Act 1993 was amended by section 13 only of the Human Services and Health Legislation Amendment Act 1994, subsection 2(3) of which provides as follows:
(3)
The amendment of section 4 of the Childcare Rebate Act 1993 in the Schedule is taken to have commenced immediately after the commencement of that Act, and for the purposes only of that amendment, section 13 is taken to have commenced at that time.
The Childcare Rebate Act 1993 came into operation on 24 June 1994.
(b) Section 2 of the Student Assistance (Youth Training Allowance—Transitional Provisions and Consequential Amendments) Act 1994 provides as follows:

2.
This Act commences on 1 January 1995 immediately after the commencement of the Student Assistance (Youth Training Allowance) Amendment Act 1994.
(c) The Childcare Rebate Act 1993 was amended by Schedule 1 (Part 4) only of the Family Law Reform (Consequential Amendments) Act 1995, subsection 2(2) of which provides as follows:
(2)
The amendments made by Parts 1, 2, 3, 4, 6, 8, 9 and 10 of Schedule 1 commence on the commencement of section 31 of the Family Law Reform Act 1995.
(d) The Childcare Rebate Act 1993 was amended by Schedule 1 (items 1-55) only of the Human Services and Health Legislation Amendment Act (No. 3) 1995, subsections 2(1)-(3) of which provides as follows:
(1)
Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2)
Items 2, 3, 4, 6, 8, 9, 10, 11, 13, 18, 19, 21, 22, 23, 24, 25, 26, 27, 30, 31, 33, 34, 35, 37, 38, 39, 40, 43, 44, 45, 54 and 55 of Schedule 1 are taken to have commenced on 1 July 1994.
(3)
Item 7 of Schedule 1 is taken to have commenced on 1 September 1994.
(e) The Childcare Rebate Act 1993 was amended by the Social Security and Veterans’ Affairs Legislation Amendment Act 1995, subsection 2(5)(e) of which provides as follows:
(5)
The following provisions commence, or are taken to have commenced, on 20 September 1996:
(e)
Schedules 12, 13, 14 and 15.
(f) The Childcare Rebate Act 1993 was amended by Schedule 2 (item 16) only of the Social Security Legislation Amendment (Budget and Other Measures) Act 1996, subsection 2(4) of which provides as follows:
(4)
Schedules 1, 2, 14, 15 and 16 commence on 1 July 1997.
(g) The Childcare Rebate Act 1993 was amended by Schedule 1 (item 8) only of the Child Care Payments (Consequential Amendments and Transitional Provisions) Act 1997, subsection 2(2) of which provides as follows:
(2)
Subject to subsections (3) to (5), Schedule 1 commences on the day that is the payment commencement day for the purposes of the Child Care Payments Act 1997. [see Note 2]
(h) The Childcare Rebate Act 1993 was amended by Schedule 1 (items 25, 26) only of the Child Care Legislation Amendment Act 1998, subsection 2(2) of which provides as follows:
(2)
Subject to subsection (3), the remaining provisions of this Act commence on a day to be fixed by Proclamation.
(i) The Childcare Rebate Act 1993 was amended by Schedule 7 (items 68-70) only of the Social Security and Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Act 1998, subsection 2(9) of which provides as follows:
(9)
Schedule 7 commences, or is taken to have commenced, on 1 April 1998.
(j) The Childcare Rebate Act 1993 was amended by Schedule 2 (item 67) only of the Assistance for Carers Legislation Amendment Act 1999, subsections 2(2) of which provides as follows:
(2)
The following provisions:
(a)
Parts 1 and 4 of Schedule 1;
(b)
Schedule 2 (other than items 1 and 3);
(c)
Schedule 3 (other than item 1);
commence immediately after the commencement of Schedule 1 to the Payment Processing Legislation Amendment (Social Security and Veterans’ Entitlements) Act 1998.
Note: Schedule 1 to the Payment Processing Legislation Amendment (Social Security and Veterans’ Entitlements) Act 1998 commences on 1 July 1999.

Table of Amendments

ad. = added or inserted
am. = amended rep. = repealed rs. = repealed and substituted

Provision affected	How affected
S. 3 ..........................................	am. No. 149, 1995; No. 80, 1996
S. 4 ..........................................	am. No. 80, 1994; No. 149, 1995; No. 80, 1996; No. 13, 1998
S. 4A ........................................	ad. No. 149, 1995
S. 5...........................................	am. No. 80, 1996
S. 10 ........................................	am. No. 140, 1995; No. 80, 1996
S. 11 ........................................	am. Nos. 140 and 149, 1995; No. 80, 1996
Ss. 14, 15 ................................	am. No. 149, 1995
S. 16.........................................	am. No. 80, 1996
S. 17.........................................	rep. No. 80, 1996
S. 19 ........................................	am. No. 149, 1995
Ss. 21-24 .................................	am. No. 149, 1995
S. 24A ......................................	ad. No. 149, 1995
S. 26 ........................................	am. No. 149, 1995
S. 27.........................................	am. No. 80, 1996
S. 28 ........................................	am. No. 149, 1995
S. 29 ........................................	am. No. 184, 1994; No. 149, 1995; Nos. 1 and 84, 1996; No. 13, 1999
Note to s. 29.............................	am. No. 1, 1996
Ss. 32-34 .................................	am. No. 149, 1995
S. 36 ........................................	am. No. 149, 1995; No. 80, 1996
Ss. 36AA, 36AB........................	ad. No. 80, 1996
Ss. 36A, 36B ............................	ad. No. 149, 1995
S. 38.........................................	am. No. 80, 1996
Division 1A................................ (ss. 39A, 39B)	ad. No. 13, 1998
Ss. 39A, 39B.............................	ad. No. 13, 1998
Ss. 43, 44 ................................	am. No. 149, 1995
S. 45.........................................	rs. No. 80, 1996
Heading to s. 46 ......................	am. No. 93, 1998
Subhead. to s. 46(1) ................	am. No. 93, 1998
S. 46.........................................	rs. No. 80, 1996
am. No. 93, 1998
S. 48.........................................	am. No. 80, 1996
Ss. 49, 50 ................................	am. No. 149, 1995; No. 80, 1996
S. 50A.......................................	ad. No. 80, 1996
Ss. 51, 52.................................	am. No. 149, 1995
S. 52A ......................................	ad. No. 149, 1995
Ss. 53, 54 ................................	am. No. 149, 1995; No. 80, 1996
S. 54.........................................	am. No. 149, 1995
Heading to Div. 5 of Part 5 .......	ad. No. 149, 1995
Heading to s. 61 ......................	am. No. 149, 1995
S. 61 ........................................	am. No. 149, 1995; No. 80, 1996
Ss. 62A, 62B ............................	ad. No. 149, 1995
S. 62AA....................................	ad. No. 80, 1996
S. 63A ......................................	ad. No. 149, 1995

Note 2

Schedule 1 (item 8) of the Child Care Payments (Consequential Amendments and Transitional Provisions) Act 1997 provides as follows:

The whole of the Act

Repeal the Act.

Subsection 2(2) of the Child Care Payments (Consequential Amendments and Transitional Provisions) Act 1997 provides as follows:

(2) Subject to subsections (3) to (5), Schedule 1 commences on the day that is the payment commencement day for the purposes of the Child Care Payments Act 1997.

As at 1 July 1999 no date had been set for the payment commencement day.

Table A

Application, Saving or Transitional Provisions

Child Care Legislation Amendment Act 1996 (No. 80, 1996)

Schedule 2

Saving provision

A guideline that was in force immediately before the commencement of item 11, under section 17 of the Childcare Rebate Act 1993 as then in force, continues in force as if it had been made under section 62AA of the Childcare Rebate Act 1993.
29Application of amendments relating to rebate percentage
The amendment made by item 18 applies to the calculation of childcare rebate for the week starting on 7 April 1997, and for all later weeks.

Social Security and Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Act 1998 (No. 93, 1998)

Application

The following items have effect if, and only if, an Act known as the Child Care Payments (Consequential Amendments and Transitional Provisions) Act 1997 has not commenced before this Schedule commences.