EXPLANATORY STATEMENT
Child Care Benefit (Work/Training/Study Test Exemption) Amendment Determination 2012 (No. 1)
Authority
The Child Care Benefit (Work/Training/Study Test Exemption) Amendment Determination 2012 (No. 1) (the Amendment Determination) is made by the Minister for Early Childhood and Childcare under subsection 14(2) of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act).
Subsection 14(2) of the Family Assistance Act provides that the Minister may determine by legislative instrument that individuals included in a specified class are exempt from the requirements of paragraphs 14 (1)(a), (b) and (c), which specify when an individual satisfies the work/training/study test.
The current determination under subsection 14(2) is the Child Care Benefit (Work/Training/Study Test Exemption) Determination 2000 (the Principal Determination).
The Amendment Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Purpose of this Determination
The purpose of the Amendment Determination is to amend the Principal Determination as a consequence of the introduction of the concept of “regular care child” into the Family Assistance Act and the A New Tax System (Family Assistance) (Administration Act) 1999 (the Administration Act) by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the Amending Act) that took effect on 1 July 2008. The Family Assistance Act and the Administration Act provide for the payment of various family assistance payments including family tax benefit (FTB), child care benefit (CCB) and child care rebate (CCR).
Prior to 1 July 2008, for an individual to be eligible for FTB, CCB or CCR for a child for a period of time, the child must have been an “FTB child” of the individual or the individual’s partner during the relevant time. A child was an “FTB child” of an individual if, among other things, that individual had at least 10% care of the child. The amendments made by the Amending Act to the Family Assistance Act and the Administration Act have the effect that a child in respect of whom an individual has at least 35% care is an “FTB child” of that individual and a child in respect of whom an individual has at least 14% but less than 35% is a “regular care child” of the individual. A “regular care child” does not attract payment of child specific components of FTB but continues to have access to FTB Part A in the form of income tested rent assistance. CCB and CCR continue to be available in relation to care provided to both an “FTB child” and a “regular care child” by an approved child care service or registered carer (approved/registered under the Administration Act).
In 2008 a number of legislative instruments made under the Family Assistance Act were amended to ensure that a “regular care child” is treated in the same way for the purposes of CCB and CCR as an “FTB child”. As a result of an oversight, the amendment that should have been made for this purpose to the Principal Determination was not made at that time. The Amendment Determination rectifies this omission.
Consultation
The amendment made by the Amendment Determination is consequential to the amendments to Commonwealth primary legislation, including the Family Assistance Act and the Administration Act, made by the Amending Act, which redefined the concept of an “FTB child” and introduced the concept of a “regular care child”. The amendment ensures that the provisions of the Principal Determination reflect these amendments. Consultation in the context of this amendment was not considered necessary.
Regulation Impact Statement
Office of Best Practice regulation was consulted in the preparation of the Amendment Determination and assessed that no Regulation Impact Statement was required as the amendment is machinery in nature.
Explanation of provisions
Sections 1 to 3 of the Amendment Determination are functional provisions.
Section 1 sets out the name of the Amendment Determination.
Section 2 provides that the Amendment Determination commences on 1 July 2008.
1 July 2008 is the date that the amendments made by the Amending Act to the Family Assistance Act and the Family Assistance Administration Act in relation to “regular care child” took effect. The Amendment Determination does not disadvantage the rights and liabilities of persons for the purposes of subsection 12(2) of the Legislative Instruments Act 2003.
The Amendment Determination is beneficial in effect. In the situation to which section 5 of the Principal Determination applies, it exempts a grandparent, great-grandparent and the grandparent’s/great-grandparent’s partner from the requirement to satisfy work/training/study test in relation to a “regular care child” for whom none of these persons provides principal care, for the purposes of eligibility for CCB for up to 50 hours of care in a week, and eligibility for CCR, for that child. The Principal Determination has been administered in that way from 1 July 2008.
Section 3 provides that Schedule 1 amends the Principal Determination.
Schedule 1
The amendments to the Principal Determination are contained in Schedule 1 to the Amendment Determination. Item 1 repeals paragraph 5(2)(b) and replaces it with new paragraph 5(2)(b).
A person who is conditionally eligible or eligible for CCB in respect of a child is eligible for CCB for up to 24 hours of care provided to the child by an approved child care service (subsection 53(3) of the Family Assistance Act refers). Such a person may be eligible for CCB for up to 50 hours of care if one of the criteria in section 54 of the Family Assistance Act is satisfied. One such criterion is that both the person and the person’s partner satisfy the work/training/study test. The eligibility for CCB for up to 50 hours of care in a week is also one of the criteria for eligibility for CCR for care in that week.
A person is taken to have satisfied the work/training/study test if the person is exempt from the work/training/study test requirement, as provided for by the Principal Determination.
Section 5 of the Principal Determination provides for the work/training/study test exemption applying to grandparents, great-grandparents (as further defined in subsections 5(3) and 5(4)) and their partners. Currently, subsection 5(2) operates to the effect that, if a person is exempt under subsection 5(1) from the requirements of the work/training/study test in relation to an ‘’FTB child” because the person is a grandparent or great-grandparent, or the grandparent’s or great-grandparent’s partner, in relation to the child and the person, or the person’s partner, is the principal carer of that child, and one of them is conditionally eligible or eligible for CCB for that child, the person is also exempt in relation to another “FTB child” of the person, or the person’s partner, for whom one of them is conditionally eligible, or eligible, for CCB, even if none of them provides principal care to that other child.
By way of an example, the effect of the existing exemption in subsection 5(2) is that, if a grandparent is eligible for CCB for a grandchild who is an “FTB child” for whom the person provides principal care and is also eligible for another “FTB child” eg the grandparent’s own child) for whom the grandparent does not provide the principal care, the grandparent is exempt from the requirements of the work/training/study test in relation to both children; therefore, the same limit of up to 50 hours in a week applies to the grandparent’s CCB eligibility for that week for each of those children.
The amendment made to paragraph 5(2)(b) by Item 1 preserves the current operation of this subsection exempting a person (a grandparent or great-grandparent of a child, or the partner of the grandparent or the great-grandparent) from the work/training/study test requirement in respect of an “FTB child” of the person, or the person’s partner, for whom none of them provides principal care, and extends its operation to exempt the person from the requirement of the test in relation to a “regular care child” of the person or the person’s partner for whom none of them provides principal care. As a result, the person will be also eligible for CCB for up to 50 hours of care provided to the “regular care child” by an approved child care service in a week, and may be eligible for CCR for the care in that week.
Subsection 5(1) of the Principal Determination provides that grandparents or great-grandparents (as defined in subsections (3) and (4) of a child, and that grandparent’s or great grandparent’s current or former partner, are exempt from the requirements of the work/training/study test in respect of their ‘grandchildren’ if one of the partners is the principal carer of that child, the child is an “FTB child” of one of the partners and one of the partners is conditionally eligible, or eligible for child care benefit for that child. As the exemption in subsection 5(1) operates in situation where a person is the principal carer of a child, which requires the person to be the sole or major provider of ongoing daily care (paragraph 5((4)(b) refers) subsection 5(1) is not amended by the Amending Determination to extend its operation to a ‘regular care child” as a grandparent/great grandparent cannot be seen to be the principal carer of a child if the child is in their care for less than 35% of the time.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Child Care Benefit (Work/Training/Study Test Exemption) Amendment Determination 2012 (No. 1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Legislative Instrument amends paragraph 5(2)(b) of the Child Care Benefit (Work/Training/Study Test Exemption) Determination 2000 (the Principal Instrument) as a consequence of the introduction of the concept of “regular care child” into the family assistance law by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 that took effect on 1 July 2008.
Section 5 of this determination provides for the work/training/study test exemption applying to grandparents, great-grandparents and their partners, for the purposes of such a person’s eligibility for child care benefit for up to 50 hours of care provided to a child by an approved child care service, and for eligibility to child care rebate.
The amendment preserves the current operation of subsection 5(2) exempting such a person from the work/training/study test requirement in respect of an “FTB child” of the person and extends the exemption to a ‘regular care child’ of the person.
An “FTB child” of a person is the child in respect of whom the person’s percentage of care during a period is at least 35%. A “regular care child” of a person is the child in respect of whom the person’s percentage of care during a period is at least 14% but less than 35%.
The Legislative Instrument corrects an oversight in the Principal Instrument so that the Principal Instrument will conform with administrative practice undertaken since the commencement of amendments to the family assistance law in 2008. The Child Care Benefit (Work/Training/Study Test Exemption) Determination has been administered in that beneficial way from 1 July 2008.
Human Rights Implications
The Legislative Instrument engages the following human rights:
Rights of the child
The rights of the child are contained in the Convention of the Rights of the Child (CRC).
Article 3 of the CRC requires that in all actions concerning children, the best interests of the child shall be a primary consideration. The Legislative Instrument will promote the best interests of the child by making approved child care more accessible to more children than is currently provided for in the Principal Instrument. By assisting grandparents and great grandparents who have care of certain children to access additional hours of child care for those children by providing child care benefit for up to 50 hours of care provided by an approved child care service in a week, this legislative instrument advances the rights of the child by confirming current administrative practice.
Right to social security
Extending the work/training/study test exemption in the context of childcare benefits may engage the right to social security contained in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as Article 26 of the CRC, which specifically recognises the right of a child to benefit from social security.
The right to social security in article 9 of the ICESCR requires a social security system to be established and that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
Article 26 of the CRC requires countries to recognise the right of the child to benefit from social security. Benefits should take into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child.
The Legislative Instrument promotes the right to social security and right of children to benefit from social security by extending the exemption from the work/training/study test to particular child care benefit recipients. The Legislative Instrument will promote the best interests of the child by making approved child care more accessible to more children than is currently provided for in the Principal Instrument. Extending the work/training/study test means reduced child care fees for more hours of child care in a week for certain children clearly advances these rights.
Conclusion
The Legislative Instrument is compatible with human rights because it generally advances the rights of the child as well as the right to social security.
The Hon Kate Ellis MP
Minister for Early Childhood and Childcare