EXPLANATORY STATEMENT
Child Care Benefit (Absence from Care – Permitted Circumstances) Amendment Determination 2007 (No. 1)
Summary
This Determination is made under section 11 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act).
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The purpose of this Determination is to amend the Child Care Benefit (Absence from Care – Permitted Circumstances) Determination 2000 (the Permitted Circumstances Determination).
The Permitted Circumstances Determination specifies circumstances in which an absence of a child from care is permitted for the purposes of child care benefit (CCB). The amendments made by this Determination specify additional circumstances in which an absence is permitted and improve the readability of the Permitted Circumstance Determination.
Background
The Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 (the CCMS Act) amended the family assistance law for the purposes of the introduction of the CCMS. In particular, the CCMS Act amended section 10 of the Family Assistance Act dealing with the effect of absence of a child from care.
The CCMS amendments commenced on 1 July 2007, but will start applying to an approved service from the service’s particular ‘application day’ determined under item 91 of the CCMS Act.
Under the family assistance law, eligibility for CCB arises in respect of a session of care provided to a child. Section 10 of the Family Assistance Act specifies when an absence from care is treated as a session of care that has been provided.
Generally, section 10 as amended operates to the effect that the first 42 days of absence of a child from care is taken to have been provided, for CCB purposes, regardless of the reason for the absence.
Section 10 also permits additional absences, after the initial 42 absence days, if an absence has occurred in any of the circumstances set out in subparagraphs 10(3)(c)(i) to (iv) (subject to other conditions of subsection 10(3) being met).
The additional absences include absences in the circumstances specified by the Minister in a legislative instrument under section 11, which are described as ‘permitted circumstances’.
The Minister has made the Permitted Circumstances Determination that deals with permitted circumstances for the purposes of section 11 as in force before the amendments made by the CCMS Act.
This Determination amends the Permitted Circumstances Determination primarily to allow for additional circumstances in which an absence is a permitted circumstance for the purpose of subparagraph 10(3)(c)(iv).
The need to amend the Permitted Circumstance Determination arises in the context of the introduction of the CCMS, which has been extensively consulted with the child care sector.
A preliminary assessment of the impact of this proposal has been undertaken in accordance with the procedure established by the Office of Best Practice Regulation; this proposal will have minimal impact on child care services.
Explanation of sections
Name of Determination
Section 1 states the name of this Determination.
Commencement
Section 2 states that this Determination commences on the day after it is registered.
Amendment of the Permitted Circumstance Determination
Section 3 states that Schedule 1 amends the Permitted Circumstances Determination.
Application
Section 4 provides that the amendments made by this Determination will apply to a child’s absences from all of a session of care that would otherwise have been provided to the child by an approved child care service during a week falling wholly after the application day for the service. The ‘application day’ for this purpose is the day as defined and determined under item 91 of the CCMS Act.
Explanation of the items in Schedule 1
Item 1 – Section 3, definition of ‘normal day’
Item 1 omits the definition of normal day as the term is no longer required, as a consequence of the amendment made by item 3.
Item 2 – Section 3, definition of ‘parenting order’
Item 2 inserts in section 3 a definition of parenting order for the purpose of the amendment made by item 3.
Item 3 – Section 5
Item 3 substitutes a new section 5. It preserves the following circumstances as ‘permitted circumstances’ for the purposes of additional absences:
an absence due to infectious disease, accompanied by a written statement (paragraph 5(1)(a);
an absence due to the claimant having a rostered day off or rotating shift, accompanied by a written statement (paragraph 5(1)(b);
an absence due to the school attended by the child or the child’s sibling being closed for reasons other than school holidays (paragraph 5(1)(c);
an absence due to a court order requiring that a child have contact with a person other than the claimant, accompanied by the relevant documentation (paragraph 5(1)(d);
an absence due to a period of local emergency (paragraphs 5(1)(e) to (g)).
Minor stylistic changes have also been made to these paragraphs to improve readability.
Currently an absence at an approved child care service because of a public holiday is a permitted circumstance as provided for by subsections 5(2) and (3) of the Permitted Circumstances Determination. As a result of the extended period of absences (42 days) allowed under subsection 10(3) of the Family Assistance Act, an absence because of a public holiday that occurs within the first 42 absence days will be treated as care that has been provided.
Therefore, current subsections 5(2) and (3) are not replicated because a public holiday will no longer be a permitted circumstance under this instrument. This change is reflected in an amendment to paragraph 5(1)(c) to ensure that an absence due to a school being closed is not a permitted circumstance if the absence occurs because of a public holiday or school holiday.
In addition, new paragraph 5(1)(d) is modified to expand the circumstances to include absences due to contact with a person other than the claimant, under a ‘parenting plan’, ‘registered parenting plan’ and ‘parenting order’, in addition to ‘court order’.
New subsection 5(1)(h) allows an additional absence to be a permitted circumstance when a total of 31 days or more (a continuous period or otherwise) of the initial 42 absence days (under subsection 10(2) of the Act) have been used in any of following circumstances:
(i) the absence was due to the illness of the child, and a medical certificate is obtained from medical practitioner and held by the service;
(ii) a circumstance mentioned in subsection 5(1) (b) or (d).
Subsection 5(2) limits the availability of additional absence days under subsection 5(1)(h) to 20 days in any financial year.