EXPLANATORY STATEMENT

Issued by the authority of the Secretary of the Department of Education

A New Tax System (Family Assistance) Act 1999

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

AUTHORITY

The Child Care Subsidy Amendment (Mandatory Child Safety Training) Secretary’s Rules 2026 (Amendment Rules) are made under subsection 85GB(2) 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 Amendment Rules amend the Child Care Subsidy Secretary’s Rules 2017 (Principal Rules) to introduce targeted record-making and record-keeping requirements to support the administration and compliance monitoring of service closures for the purposes of mandatory child safety training.

The Amendment Rules require approved providers to make records, under subparagraph 202A(1)(b)(iv) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act), where:

• a service is closed for the purpose of staff completing mandatory child safety training; and
• in home care (IHC) educators or family day care (FDC) educators are unavailable to care for children enrolled in a session of care, and for which the educator is responsible, because the educator is undertaking mandatory child safety training.

The Amendment Rules also require a provider to keep these records, under paragraph 202B(1)(d) of the Family Assistance Administration Act.

These amendments ensure that the department can monitor closures for the purposes of mandatory child safety training, and ensure that child care subsidy (CCS) is being claimed for impacted sessions of care in accordance with amendments made to the Child Care Subsidy Minister’s Rules 2017 (Minister’s Rules).

Specifically, the Amendment Rules introduce new paragraphs 11(g) and 11(h), which set out records which must be made in respect of mandatory child safety training. Paragraph 11(g) requires providers of services that are not IHC or FDC services to make records confirming that a service was closed for the purposes of staff completing mandatory child safety training, the date the service was closed, and the start and end time of the closure.

Paragraph 11(h) requires providers of IHC or FDC services to make records confirming that an IHC or FDC educator was unavailable to provide care for children enrolled in a session of care and for which the educator is responsible, because the educator was completing mandatory child safety training, the date the educator was unavailable to provide care, the start and end time that the educator was unavailable to provide care, and the educator’s full name.

The Amendment Rules also introduce new paragraphs 12(k) and 12(l). These paragraphs have the effect that the child care provider must keep the records prescribed by paragraphs 11(g) and 11(h) for the period of time set out in subsection 202B(2) of the Family Assistance Administration Act (which, in most cases, is seven years from the end of the financial year in which the relevant session occurred).

The Amendment Rules define ‘mandatory child safety training’ in section 4 to have the same meaning as in subsection 8(5) of the Minister’s Rules  (as amended), being the child safety training prescribed under 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).

COMMENCEMENT

The Amendment Rules commence on the later of:

• at the same time as the Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026 commences; and
• the start of the day after the Amendment Rules are registered.

CONSULTATION

Targeted stakeholder consultation was undertaken with the early childhood education and care sector through the Early Childhood Education and Care Reference Group (ECECRG) on the proposed policy changes, noting that the legislative provisions themselves were not consulted on. Feedback was received from ECECRG members who were generally supportive of the measure including the requirement to keep records of the closures. 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) Secretary’s Rules 2026

The Child Care Subsidy Amendment (Mandatory Child Safety Training) Secretary’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 purpose of the Amendment Rules is to amend the Child Care Subsidy Secretary’s Rules 2017 (Principal Rules) to introduce targeted record-making and record-keeping requirements to support the administration and compliance monitoring of service closures for the purposes of mandatory child safety training.

The Amendment Rules require approved providers to make records, under subparagraph 202A(1)(b)(iv) of the A New Tax System (Family Assistance) (Administration Act) 1999 (Family Assistance Administration Act), where:

• a service is closed for the purpose of staff completing mandatory child safety training; and
• in home care (IHC) educators or family day care (FDC) educators are unavailable to care for children enrolled in a session of care, and for which the educator is responsible, because the educator is undertaking mandatory child safety training.

The Amendment Rules also require a provider to keep these records, under paragraph 202B(1)(d) of the Family Assistance Administration Act.

These amendments ensure that the department can monitor closures for the purposes of mandatory child safety training, and ensure that child care subsidy (CCS) is being claimed for impacted sessions of care in accordance with amendments made to the Child Care Subsidy Minister’s Rules 2017 (Minister’s Rules).

Specifically, the Amendment Rules introduce new paragraphs 11(g) and 11(h), which set out records which must be made in respect of mandatory child safety training. Paragraph 11(g) requires providers of services that are not IHC or FDC services to make records confirming that a service was closed for the purposes of staff completing mandatory child safety training, the date the service was closed, and the start and end time of the closure.

Paragraph 11(h) requires providers of IHC or FDC services to make records confirming that an IHC or FDC educator was unavailable to provide care for children enrolled in a session of care and for which the educator is responsible, because the educator was completing mandatory child safety training, the date the educator was unavailable to provide care, the start and end time that the educator was unavailable to provide care, and the educator’s full name.

The Amendment Rules also introduce new paragraphs 12(k) and 12(l). These paragraphs have the effect that the child care provider must keep the records prescribed by paragraphs 11(g) and 11(h) for the period of time set out in subsection 202B(2) of the Family Assistance Administration Act (which, in most cases, is seven years from the end of the financial year in which the relevant session occurred).

The Amendment Rules define ‘mandatory child safety training’ in section 4 to have the same meaning as in subsection 8(5) of the Minister’s Rules (as amended), being 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).

Human rights implications

The Amendment Rules engage the following rights:

• the rights of parents and children in articles 3, 18 and 19 of the Convention on the Rights of the Child (CRC); and
• the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Rights of parents and children

Article 3(1) of the CRC states 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.

Article 18(3) of the CRC 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.

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 deal with record-making and record-keeping obligations for approved child care providers and is unlikely to have a significant effect on the rights of parents and children. However, the Amendment Rules form part of a suite of changes, including amendments to the National Law and the Minister’s Rules to require and facilitate child safety training. The suite of measures promote the rights of parents and children by ensuring that the staff of child care providers understand the importance of child safety and are well equipped to deal with issues regarding child safety, so that parents and children can continue to access safe and high quality child care services.

For the reasons above, the Amendment Rules indirectly promote the rights of children and parents.

Right to privacy

Article 17 of the ICCPR states that no one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence.

The Amendment Rules require child care providers, particularly of FDC and IHC services, to make and keep records which include, among other things, the full names of educators employed or engaged by the providers. The full names of educators are personal information and therefore the making and keeping of these records will have an impact on the educators’ privacy. This impact is not expected to be significant noting that the child care providers already have a contractual relationship with the educators and it would be administratively unworkable for child care providers to operate child care services without recording and using the names of their educators.

These obligations are necessary to ensure that the Commonwealth can undertake audits and reliably verify whether child care providers are complying with their various obligations under the family assistance law, and whether CCS payments are being accurately calculated and paid. Without these records, it may be unclear whether there is CCS eligibility for a particular session of care. This could negatively impact other rights, such as the rights of parents and children or the right to social security, and could also limit the Commonwealth’s ability to effectively and efficiently manage public resources.

To the extent that the Amendment Rules limit a person’s right to privacy, the limitation is reasonable because the impact on individuals’ privacy is likely to be minor and the limitation is necessary to ensure that CCS entitlements are paid in accordance with the legislation.

Conclusion

The instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.  

Secretary of the Department of Education, Tony Cook PSM

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

EXPLANATION OF PROVISIONS

Section 1: Name

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

Section 2: Commencement

2.      This section provides that the Amendment Rules will commence on the later of:

         at the same time as the Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026 commences; and

         the start of the day after the Amendment Rules are registered.

Section 3: Authority

3.      This section provides that the Amendment Rules are made under the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act). Specifically, subsection 85GB(2) of the Family Assistance Act allows the Secretary to make rules (referred to as the Secretary’s Rules) prescribing matters 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), 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

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

Schedule 1 – Amendments

Child Care Subsidy Secretary’s Rules 2017

Item 1 – Section 4

5.      This item inserts a definition for ‘mandatory child safety training’ into section 4 of the Principal Rules. Section 4 of the Principal Rules provides the meaning of key terms used in the Rules. The definition of ‘mandatory child safety training’ is the same as that prescribed in subsection 8(5) of the Child Care Subsidy Minister’s Rules 2017, as inserted by the Child Care Subsidy Amendment (Mandatory Child Safety Training) Minister’s Rules 2026.

6.      The effect of this amendment is that mandatory child safety training is defined to mean 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).  

Item 2 – At the end of section 11

7.      Item 2 inserts new paragraphs 11(g) and 11(h). Section 11 of the Principal Rules sets out, for the purposes of subparagraph 202A(1)(b)(iv) of the Family Assistance Administration Act, matters about which an approved provider must make a written record.

8.      New paragraph 11(g) requires providers to make a written record where a service closes for the purposes of mandatory child safety training (according to the definition inserted by item 1). The written record must include confirmation that the service was closed for the purposes of mandatory child safety training, the date on which the service closed, and the start and end time of the closure.

9.      New paragraph 11(h) requires providers of in home care (IHC) or family day care (FDC) services to make a written record where an IHC or FDC educator is unavailable to care for children enrolled in a session of care, and for which the educator is responsible, because the educator is completing mandatory child safety training. The written record must confirm that the educator was unavailable to provide care because the educator was completing mandatory child safety training, the date which the educator was unavailable to provide care, the start and end times which the educator was unavailable to provide care, and the educator’s full name.

Item 3 – At the end of section 12

10.  Item 3 inserts new paragraphs 12(k) and 12(l). Section 12 of the Principal Rules sets out, for the purposes of paragraph 202B(1)(d) of the Family Assistance Administration Act, matters about which an approved provider must keep records, for the duration set out under subsection 202B(2) of the Family Assistance Administration Act (in most cases, seven years from the end of the financial year in which the session occurred). New paragraphs 12(k) and 12(l) require approved providers to keep records made under new paragraphs 11(g) and 11(h) respectively.

11. The effect of this is that an approved provider must keep records for the duration specified in subsection 202B(2) of the Family Assistance Administration Act.