EXPLANATORY STATEMENT

Issued by the authority of the Minister for Employment, Workforce, Skills, Small and Family Business

A New Tax System (Family Assistance) Act 1999

Child Care Subsidy Amendment (Local Area Emergencies) Minister’s Rules 2022

AUTHORITY

The Child Care Subsidy Amendment (Local Area Emergencies) Minister’s Rules 2022 (Amendment Rules) are made under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) as construed in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (Acts Interpretation Act).

Under subsection 33(3) of the Acts Interpretation Act, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke and amend or vary any such instrument.

PURPOSE AND OPERATION

The Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) to extend, until 30 April 2022, a measure that supports child care providers and families in impacted by flood emergencies in South East Queensland and New South Wales. The Amendment Rules extend the period in which providers may qualify for the South East Queensland and NSW Flood Support business continuity payment available to approved services by a further four weeks. These amendments are required because South East Queensland and New South Wales continue to be affected by floods.

The South East Queensland and NSW Flood Support payments are intended to provide stable income for the child care sector, protecting their financial viability and allowing them to continue to operate into the future to support families’ wellbeing.

Each South East Queensland and NSW Flood Support payment is an amount of $10,000, provided to services that are in areas where the Department of Education, Skills and Employment (the department) has recognised a Local Area Emergency, and are closed, or have had to reduce the number of children who can attend the service, for eight or more days due to the Local Area Emergency. In order to receive the South East Queensland and NSW Flood Support Payments, providers must comply with certain conditions. These include that they must not enforce the payment of gap fees for any children not attending care.

The amendments are necessary as flooding continues in South East Queensland and NSW. The South East Queensland and NSW Flood Support Payments enable services to re-open as soon as possible to support the recovery of flood-impacted communities. The payments reduce immediate financial pressures on services impacted by the floods, and assist services to cover costs such as clean-up, and staff wages, while revenue is being impacted. The payment also ensures additional eligible services can offer fee relief to families impacted by requiring services to not enforce the gap fee for children who can’t attend care while the service is closed.

REGULATORY IMPACT

The Office of Best Practice Regulation (OBPR) has advised no Regulatory Impact Statement is required for the Amendment Rules and assessed the Amendment Rules as having a no more than minor regulatory impact (OBPR ID: OBPR22-01956).

COMMENCEMENT

The Amendment Rules commence on the day after they are registered.

CONSULTATION

The department consulted with the Early Childhood Education and Care Reference Group and representatives from state and territory governments regarding the Local Area Emergency response measures. Stakeholders were receptive to the proposed measures.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Child Care Subsidy Amendment (Local Area Emergencies) Minister’s Rules 2022

The Child Care Subsidy Amendment (Local Area Emergencies) Minister’s Rules 2022 (the Amendment Rules) are 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 Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) to extend, until 30 April 2022, a measure that supports child care providers and families in impacted by flood emergencies in South East Queensland and New South Wales. The Amendment Rules extend the period in which providers may qualify for the South East Queensland and NSW Flood Support business continuity payment available to approved services by a further four weeks. These amendments are required because South East Queensland and New South Wales continue to be affected by floods.

The South East Queensland and NSW Flood Support payments are intended to provide stable income for the child care sector, protecting their financial viability and allowing them to continue to operate into the future to support families’ wellbeing.

Each South East Queensland and NSW Flood Support payment is an amount of $10,000, provided to services that are in areas where the Department of Education, Skills and Employment (the department) has recognised a Local Area Emergency, and are closed, or have had to reduce the number of children who can attend the service, for eight or more days due to the Local Area Emergency. In order to receive the South East Queensland and NSW Flood Support Payments, providers must comply with certain conditions. These include that they must not enforce the payment of gap fees for any children not attending care.

The amendments are necessary as flooding continues in South East Queensland and NSW. The South East Queensland and NSW Flood Support Payments enable services to re-open as soon as possible to support the recovery of flood-impacted communities. The payments reduce immediate financial pressures on services impacted by the floods, and assist services to cover costs such as clean-up, and staff wages, while revenue is being impacted. The payment also ensures additional eligible services can offer fee relief to families impacted by requiring services to not enforce the gap fee for children who can’t attend care while the service is closed.

Human rights implications

The Amendment Rules engage the following human rights:

• Article 3 of the Convention on the Rights of the Child (CRC) which recognises that in all actions concerning children, the best interests of the child shall be a primary consideration;
• Article 18 of the CRC, which requires States Parties to take all appropriate measures to ensure that children of working parents can benefit from child care services and facilities; and

Article 3 of the CRC

Article 3 of the CRC recognises that in all actions concerning children, including those undertaken by administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The Amendment Rules make changes to the Principal Rules to provide financial support to providers of child care services affected by flooding. This will promote the best interests of the child by reducing the financial pressure on child care services and ensuring that disruptions to child care are minimised so that services can continue to operate into the future to support the wellbeing of children and their families.

Article 18 of the CRC

Article 18 of the CRC, and particularly paragraph 3 of article 18, requires States Parties to take all appropriate measures to ensure that children of working parents have the right to benefit from child care services and facilities for which they are eligible.

The Amendment Rules provide financial relief to providers of child care services and help ensure services can continue to operate to provide child care services and facilities to families, after having to temporarily close due to the impacts of flooding.

Accordingly, these Amendment Rules will support children and families to continue to be able to access child care in a safe and sustainable manner.

Article 24 of the CRC

Article 24 of the CRC recognises the right of the child to the enjoyment of the highest standard of health.

To this end, the Amendment Rules promote the right of the child to enjoy the highest standard of health by providing financial assistance to help child care centres create a safe and healthy environment for children attending child care, particularly at child care centres that have had to undertake clean up activities after being damaged by flood.

Conclusion

The Instrument is compatible with human rights because it promotes the protection of human rights.

Minister for Employment, Workforce, Skills, Small and Family Business, Stuart Robert

CHILD CARE SUBSIDY AMENDMENT (LOCAL AREA EMERGENCIES) MINISTER’S RULES 2022

EXPLANATION OF PROVISIONS

Section 1: Name

1. This is a formal provision specifying the name of the instrument as the Child Care Subsidy Amendment (Local Area Emergencies) Minister’s Rules 2022 (Amendment Rules).

Section 2: Commencement

2.         The Amendment Rules commence on the day after they are registered.

Section 3: Authority

3.         This provision provides that the Amendment Rules are made under section 85GB(1) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act), which allows the Minister to make rules required or permitted to be prescribed by either the Family Assistance Act or the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act).

Section 4: Schedules

4.         This section provides that the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) are amended as set out in the Schedule to the Amendment Rules. 

SCHEDULE 1 – Amendments

Item 1

5.         Item 1 amends the Principal Rules to extend the period that the business continuity payments, known as the ‘South East Queensland and NSW Flood Support payments’, will be available to eligible child care providers affected by the floods in South East Queensland and NSW.

6.         Previously, the payments were in relation to the period 23 February 2022 to 1 April 2022. The Amendment Rules extend this period by four weeks so that the period ends on 30 April 2022. This amendment is required due to the ongoing flooding situation impacting services in South East Queensland and NSW.

7.         This measure supports child care providers and families in response to the flood emergencies that have impacted South East Queensland and New South Wales. The South East Queensland and NSW Flood Support payments are intended to provide income for the child care sector, protecting their immediate financial viability and allowing them to re-open rapidly to support families’ wellbeing.

8.         The South East Queensland and NSW Flood Support payment is an amount of $10,000, provided to a service that is in an area where the department has recognised a Local Area Emergency, and is closed, or has had to reduce the number of children who can attend the service, for eight or more days due to the Local Area Emergency. In order to receive the South East Queensland and NSW Flood Support Payment, providers must comply with certain conditions. These include that they must not enforce the payment of gap fees for any children not attending care.

9.         The South East Queensland and NSW Flood Support Payment enables services to re-open as soon as possible to support the recovery of flood-impacted communities. The payment reduces financial pressure on services experiencing the immediate impact of the floods, assisting services to cover costs such as clean-up, and staff wages, while revenue is being impacted.  The payment also ensures additional eligible services can offer fee relief to families impacted by requiring services to not enforce the gap fee for children who can’t attend care while the service is closed.