EXPLANATORY STATEMENT

Issued by the authority of the Minister for Education

A New Tax System (Family Assistance) Act 1999

Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026

AUTHORITY

The Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026 (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 bylaws), 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, amend, or vary any such instrument.

PURPOSE AND OPERATION

The Child Care Subsidy Minister’s Rules 2017 (Principal Rules) prescribe matters that are required or permitted (or which are otherwise necessary or convenient) for the purposes of the Family Assistance Act or the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act).

The Amendment Rules amend the Principal Rules to support the implementation of service closures for mandatory child safety training (the measure). The measure allows sessions of care, which are closed for any part of the session of care, to still result in child care subsidy (CCS) eligibility in the following circumstances:

         for early childhood education and care (ECEC) services, that are not in home care (IHC) or family day care (FDC) services, where the service is closed on or after 5:00 pm, for a maximum of 5 hours in a calendar year, for the purposes of staff completing mandatory child safety training.

         for IHC and FDC services, where an educator is unavailable to care for children enrolled in a session of care and for which the educator is responsible, between 5:00 pm and midnight, for a maximum of 5 hours in a calendar year, because the educator is completing mandatory child safety training.

The Amendment Rules define mandatory child safety training to mean the child safety training prescribed under section 162B of the Education and Care Services National Law (National Law), contained in the schedule to the Education and Care Services National Law Act 2010 (Vic).

Placing parameters on when sessions of care are eligible for CCS, if the child care service in question chooses to close early to facilitate the mandatory child safety training, will ensure that services are able to facilitate the mandatory child safety training, while minimising disruption to families.

Specifically, the Amendment Rules prescribe, for the purposes of subparagraph 85BA(1)(c)(iii) of the Family Assistance Act, circumstances in which there is no eligibility for CCS for a session of care where a service is closed for part of a session for the purposes of mandatory child safety training, except where specific circumstances apply. This is achieved by inserting new paragraphs 8(1)(h) and 8(1)(i), providing that there is no eligibility for CCS for a session of care:

         except where new subsection (4C) applies, where a service that is not an IHC or FDC service is closed for any part of a session of care for the purposes of staff completing mandatory child safety training;

• except where new subsection (4D) applies, where an educator of an IHC or FDC service is unavailable to care for children enrolled in a session of care and for which the educator is responsible, for any part of that session of care, because the educator is completing mandatory child safety training.

New subsections (4C) and (4D) prescribe the specific parameters when impacted sessions of care will be eligible for CCS. Subsection (4C) applies to ECEC services that are not IHC or FDC services. Subsection (4D) applies to sessions of care impacted by an IHC or FDC educator’s unavailability due to the training.

It is necessary to separately provide for the IHC and FDC sectors in subsection (4D) to reflect the different structure and operational context of those services. In particular, IHC and FDC educators operate independently and are often able to set their own hours, rather than having central opening and closing times. As such, the measure in respect of IHC and FDC services is at an educator level, rather than a service level.

COMMENCEMENT

The Amendment Rules commence on the later of 27 February 2026, and the day after registration.

CONSULTATION

Targeted stakeholder consultation was undertaken with the ECEC sector through the Early Childhood Education and Care Reference Group (ECECRG) on the proposed policy changes. Feedback was received from ECECRG members who were generally supportive of the measure. Feedback was primarily directed to matters intended to be addressed through supporting policy guidance (for example, operational matters), rather than the legislative provisions.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026

The Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026 (Amendment Rules) 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 Child Care Subsidy Minister’s Rules 2017 (Principal Rules) prescribe matters that are required or permitted (or which are otherwise necessary or convenient) for the purposes of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) or the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act).

The Amendment Rules amend the Principal Rules to support the implementation of service closures for mandatory child safety training (the measure). The measure allows sessions of care, which are closed for any part of the session of care, to still result in child care subsidy (CCS) eligibility in the following circumstances:

         for early childhood education and care (ECEC) services, that are not in home care (IHC) or family day care (FDC) services, where the service is closed on or after 5:00 pm, for a maximum of 5 hours in a calendar year, for the purposes of staff completing mandatory child safety training.

         for IHC and FDC services, where an educator is unavailable to care for children enrolled in a session of care and for which the educator is responsible, between 5:00 pm and midnight for a maximum of 5 hours in a calendar year, because the educator is completing mandatory child safety training.

The Amendment Rules define mandatory child safety training to mean the child safety training prescribed under section 162B of the Education and Care Services National Law (the National Law), contained in the schedule to the Education and Care Services National Law Act 2010 (Vic).

Placing parameters on when sessions of care are eligible for CCS, if the child care service in question chooses to close early to facilitate the mandatory child safety training, will ensure that services are able to facilitate the mandatory child safety training, while minimising disruption to families.

Specifically, the Amendment Rules prescribe, for the purposes of subparagraph 85BA(1)(c)(iii) of the Family Assistance Act, circumstances in which there is no eligibility for CCS for a session of care where a service is closed for part of a session for the purposes of mandatory child safety training, except where specific circumstances apply. This is achieved by inserting new paragraphs 8(1)(h) and 8(1)(i), providing that there is no eligibility for CCS for a session of care:

         except where new subsection (4C) applies, where a service that is not an IHC or FDC service is closed for any part of a session of care for the purposes of staff completing mandatory child safety training;

• except where new subsection (4D) applies, where an educator of an IHC or FDC service is unavailable to care for children enrolled in a session of care and for which the educator is responsible, for any part of that session of care, because the educator is completing mandatory child safety training.

New subsections (4C) and (4D) prescribe the specific parameters when impacted sessions of care will be eligible for CCS. Subsection (4C) applies to ECEC services that are not IHC or FDC services. Subsection (4D) applies to sessions of care impacted by an IHC or FDC educator’s unavailability due to the training.

It is necessary to separately provide for the IHC and FDC sectors in subsection (4D) to reflect the different structure and operational context of those services. In particular, IHC and FDC educators operate independently and are often able to set their own hours, rather than having central opening and closing times. As such, the measure in respect of IHC and FDC services is at an educator level, rather than a service level.

Human rights implications

The Amendment Rules engage the following 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 have the right to benefit from child care services and facilities;
• Article 19 of the CRC, which requires that appropriate legislative, administrative, social and educational measures be taken to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, including social programmes to provide necessary support for the child and for those who have the care of the child.

Article 3 of the CRC

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

The Amendment Rules complement amendments to the National Law to require staff of child care services who have contact with children to undertake child safety training. The Amendment Rules limit the circumstances in which CCS can be paid for sessions where the child care service closes early for mandatory child safety training, but still facilitate these closures in a way that minimises disruption to families. It is in the best interests of children to be cared for by staff who are well-trained in how to keep them safe.

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 facilitate child safety training in a manner that minimises disruption to families. This is through placing parameters on whether CCS is payable in circumstances where the child care service closes for part of a day when they would otherwise be open. For example, CCS is only payable for sessions of care provided by services while the service is closed for mandatory child safety training (other than in home care (IHC) and family day care (FDC)) where the service is closed on or from 5:00 pm, and for up to 5 hours in a calendar year.

For IHC and FDC services, services are only eligible to claim CCS where an educator is unavailable to provide care for children enrolled in a session of care, and for which the educator is responsible for, if the educator becomes unavailable between 5:00 pm and midnight, for a total of 5 hours per calendar year, because the educator is completing mandatory child safety training.

These measures aim to balance the negative impact on staff needing to undertake mandatory training outside their usual working hours, while mitigating disruption to parents relying on child care.

Article 19 of the CRC

Article 19 of the CRC requires States Parties to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parents, legal guardians, or any other person who has the care of the child.

The Amendment Rules complement amendments to the National Law to require staff and volunteers, including students, working in the ECEC sector to complete the new child safety training, whether or not they work directly with children. The training aims to:

• establish a national minimum standard of child safety understanding and practice, so that all children, regardless of where they live or the type of care they attend, have equal access to safe, supportive environments;
• promote environments that support children’s wellbeing and development, emphasising genuine, respectful interactions and the valuing of children’s and families’ voices;
• strengthen preventative practices within ECEC services by supporting the creation of conditions that reduce the likelihood of harm occurring, while increasing the likelihood that any concerns or incidents are identified early and responded to appropriately; and
• build capacity across the ECEC sector to identify and respond to potential risks or concerns in a timely, appropriate, and child-centred way.

Together, these aims contribute to a national culture of child safety, where safeguarding is embedded in everyday practice, relationships, and decision-making across the ECEC sector.

The Amendment Rules limit the circumstances in which CCS can be paid for sessions where the child care service closes early for mandatory child safety training, but still facilitate these closures in a way that minimises disruption to families.

Conclusion

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

Minister for Education, Jason Clare

CHILD CARE SUBSIDY AMENDMENT (MANDATORY CHILD SAFETY TRAINING) MINISTER’S RULES 2026

EXPLANATION OF PROVISIONS

Section 1: Name

1.   This is a formal provision specifying the name of the instrument as Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026 (Amendment Rules).

Section 2: Commencement

1.   This section provides that the entire Amendment Rules commence on the later of:
   • 27 February 2026; and
   • the day after the Amendment Rules is registered.

Section 3: Authority

1.   This section provides that the Amendment Rules are made under the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act). Subsection 85GB(1) allows the Minister to make rules required or permitted to be prescribed by the Family Assistance Act, or the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act), or necessary or convenient to be prescribed for carrying out or giving effect to certain provisions of the Family Assistance Act and the Family Assistance Administration Act.  

Section 4: Schedules

1.   This section provides that the Child Care Subsidy Minister’s Rules 2017 (the Principal Rules) are amended or repealed as set out in the applicable items in the Schedules to the Amendment Rules.

Schedule 1- Amendments

Child Care Subsidy Minister’s Rules 2017

Item 1 – At the end of subsection 8(1)

1.   Item 1 inserts new paragraphs 8(1)(h) and 8(1)(i) at the end of subsection 8(1) of the Principal Rules. New paragraph 8(1)(h) prescribes an additional circumstance in which a session of care is provided for which there is no eligibility for Child Care Subsidy (CCS) for the purposes of subparagraph 85BA(1)(c)(iii) of the Family Assistance Act.
2.   The circumstance in new paragraph 8(1)(h) is where a service, that is not an in home care (IHC) or family day care (FDC) service, is closed for any part of the session of care for the purposes of staff completing mandatory child safety training, except where new subsection 8(4C) applies.
3.   The circumstance in new paragraph 8(1)(i) is where an IHC educator or FDC educator is unavailable to care for children enrolled in a session of care, where the educator is usually responsible for caring for those children at similar times, for any part of the session of care, because the educator is completing mandatory child safety training, except where new subsection 8(4D) applies.
4.   In respect of services that are not IHC or FDC services, the amendments in item 1 have the effect that where a service closes for any part of a session of care for the purposes of staff completing mandatory child safety training (as defined in new subsection 8(5)), there will be no eligibility for CCS for the impacted session of care, unless the closure meets the requirements set out in new subsection 8(4C).
5.   For IHC or FDC services, the amendments in item 1 operate on an educator level, and have the effect that where an educator is unavailable to care for children enrolled in a session of care, and for which an educator is responsible, for any part of the session of care, because the educator is completing mandatory child safety training, there will be no eligibility for CCS for the impacted session of care, unless the circumstances in new subsection 8(4D) apply.

Item 2 – After subsection 8(4B)

1.   Item 2 inserts new subsections 8(4C) and 8(4D) after subsection 8(4B) of the Principal Rules.
2.   New subsection 8(4C) prescribes circumstances where the subsection will apply for the purposes of new paragraph 8(1)(h). These circumstances are where the service closure commences on or after 5pm; and the total time during the calendar year for which the service has been closed for the purposes of staff completing mandatory child safety training on or after 5pm has not exceeded 5 hours.
3.   New subsection 8(4D) prescribes circumstances where the subsection will apply for the purposes of new paragraph 8(1)(i). This subsection specifically applies to IHC and FDC educators, to reflect that a cap on hours at a service-wide level would not be fit for purpose in the IHC and FDC operating contexts.
4.   New subsection 8(4D) applies where the period for which the educator is unavailable commences between 5:00 pm and midnight, and the total time during the calendar year for which the educator is unavailable commencing between 5:00 pm and midnight has not exceeded 5 hours
5.   The amendment in item 2 has the effect that, where any part of a session of care is impacted by the circumstances set out in new paragraphs 8(1)(h) and 8(1)(i), sessions of care will be eligible for CCS, where the corresponding circumstances in either subsection 8(4C) or 8(4D) are met.

Item 3 – Subsection 8(5)

1.   Subsection 8(5) of the Principal Rules sets out defined terms used throughout section 8 of the Principal Rules.
2.   Item 3 inserts a new definition into subsection 8(5), ‘mandatory child safety training’, which is used in new paragraphs 8(1)(h) and 8(1)(i), and new subsections 8(4C) and 8(4D).
3.   Item 3 defines ‘mandatory child safety training’ to mean the child safety training prescribed for the purposes of section 162B of the Education and Care Services National Law, contained in the schedule to the Education and Care Services National Law Act 2010 (Vic).