EXPLANATORY STATEMENT
Child Care Benefit (Absence From Care – Permitted Circumstances) Amendment Determination 2009 (No. 1)
Summary
The Child Care Benefit (Absence From Care – Permitted Circumstances) Amendment Determination 2009 (No. 1) (the Amendment Determination) is made by the Minister for Education and Minister for Employment and Workplace Relations under section 11 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act).
The purpose of the Amendment Determination is to amend the Child Care Benefit (Absence From Care – Permitted Circumstances) Determination 2000 (the Principal Determination) to give greater clarity to the meaning of ‘brother or sister’ and to recognise that there are a number of different types of brother and sister relationships eg step-brother, half-brother.
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.
Under the family assistance law, eligibility for Child Care Benefit (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 Minster has made the Principal Determination to deal with permitted circumstances for the purposes of section 11 as in force before the amendments made by the CCMS Act. One of the circumstances prescribed in the Principal Determination is where the absence is due to the school attended by the child, or the child’s brother or sister, being closed (other than because of a public holiday or school holidays). The words ‘brother’ and ‘sister’ are not defined and do not clearly pick up the possible brother and sister relationships that may exist, such as half-brother or sister, or step-brother or sister etc. Accordingly, the Amendment Determination amends the Principal Determination to address this issue.
Explanation of provisions
Amendment Determination
Section 1 provides that the name of the Amendment Determination is the Child Care Benefit (Absence From Care – Permitted Circumstances) Amendment Determination 2009 (No.1).
Section 2 states that the Amendment Determination commences on the day after it is registered.
Section 3 provides that the Principal Determination is amended as set out in Schedule 1 to the Amendment Determination.
Schedule 1 to the Amendment Determination
Item 1 inserts a definition of ‘child’s sibling’ to include a half-brother, half-sister, adoptive brother, adoptive sister, stepbrother, stepsister, or foster-brother or foster-sister of the child.
Item 2 omits the words ‘brother or sister’ from paragraph 5 (1) (c) of the Principal Determination and inserts the word ‘sibling’. As indicated in Item 1 above, the concept of ‘child’s sibling’ has then been inserted into the Principal Determination to give greater clarity to its meaning and to recognise that there are different sorts of brother and sister relationships.
Formal matters
Consultation
The Amendment Determination is simply aimed at providing greater clarity to the meaning of the words ‘brother’ and ‘sister’. The definition of sibling inserted by the Amendment Determination is consistent with the meaning of sibling, as set out in the social security law. No public consultation was considered necessary.
Regulatory Impact Statement
The Amendment Determination does not require a Regulatory Impact Statement (RIS) nor a Business Cost Calculator Figure. The Amendment Determination is not regulatory in nature, will not impact on business activity and will have no compliance costs or competition impact.
Authority
Section 11 of the A New Tax System (Family Assistance) Act 1999. No preconditions need to be satisfied for the making of this instrument.
Overview
The Child Care Benefit (Absence From Care – Permitted Circumstances) Amendment Determination 2009 (No. 1) was enacted to amend the Child Care Benefit (Absence From Care – Permitted Circumstances) Determination 2000 and provide greater clarity to the meaning of 'brother or sister', thereby recognising various types of sibling relationships such as step-brother, half-brother, etc. This determination was introduced by the Minister for Education and Minister for Employment and Workplace Relations under section 11 of the A New Tax System (Family Assistance) Act 1999, with the primary policy objective of enhancing the precision and inclusivity of the existing sibling definitions within the Child Care Benefit framework. The amendment ensures that the interpretation of absence from care due to a sibling's school closure includes all forms of sibling relationships, thereby ensuring that families receive appropriate benefits without ambiguity.
Scope and Application
The Child Care Benefit (Absence From Care – Permitted Circumstances) Amendment Determination 2009 (No. 1) is an amendment made by the Minister for Education and Minister for Employment and Workplace Relations under section 11 of the A New Tax System (Family Assistance) Act 1999. The Amendment Determination aims to clarify the meaning of 'brother or sister' in the context of permitted absences from care, which affect eligibility for Child Care Benefit. The amendment recognises various types of brother and sister relationships, including half-brother, half-sister, adoptive brother, adoptive sister, stepbrother, stepsister, or foster-brother or foster-sister. The determination applies to all individuals and entities involved in child care services and the administration of Child Care Benefit, as governed by the Family Assistance Act. It has a national jurisdictional reach within Australia, as it operates under Commonwealth legislation. The Amendment Determination does not specify any exclusions, exemptions, or thresholds beyond the defined relationships and the conditions outlined in the Family Assistance Act. The Amendment Determination is not considered regulatory in nature and thus does not require a Regulatory Impact Statement or Business Cost Calculator Figure.
Key Provisions
The Child Care Benefit (Absence From Care – Permitted Circumstances) Amendment Determination 2009 (No. 1) amends the Child Care Benefit (Absence From Care – Permitted Circumstances) Determination 2000 (the Principal Determination) to provide greater clarity on the meaning of 'brother or sister' within the context of the legislation. Specifically, Section 3 of the Amendment Determination amends the Principal Determination by inserting a definition of ‘child’s sibling’ (Schedule 1, Item 1), which includes half-brother, half-sister, adoptive brother, adoptive sister, stepbrother, stepsister, foster-brother or foster-sister of the child. This definition aims to recognise the various types of brother and sister relationships that may exist. Furthermore, the word 'sibling' replaces the words 'brother or sister' in paragraph 5(1)(c) of the Principal Determination (Schedule 1, Item 2), ensuring consistency with the definition of sibling as set out in the social security law.
The Amendment Determination imposes certain obligations on the parties it governs. Firstly, it mandates that the term ‘child’s sibling’ is to be interpreted in line with the definition provided within the Amendment Determination. This includes acknowledging different types of sibling relationships as specified. Furthermore, it requires that any absences from care due to a child's sibling being absent from school (outside of public holidays or school holidays) will be treated as a session of care provided for the purposes of Child Care Benefit (CCB) eligibility.
Breach of the provisions of the Amendment Determination may not directly result in criminal or civil penalties as it primarily amends definitions and clarifies circumstances for eligibility. However, any misinterpretation or misapplication of the legislation could lead to incorrect CCB claims, which may attract scrutiny, audits, and potential repayments of wrongly claimed benefits. The Family Assistance Act provides for the recovery of wrongly paid benefits, and in cases of deliberate or negligent misapplication, there may be implications under the Social Security Act 1991. The exact penalties for such breaches would be determined in accordance with the prevailing legislative framework at the time of the breach.