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 Minister’s Amendment (Application Exclusion Period) Rules 2021
AUTHORITY
The Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021 (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).
Amongst other things, subsection 33(3) of the Acts Interpretation Act provides that a power to make an instrument of a legislative character (such as subsection 85GB(1) of the Family Assistance Act) includes a power to amend such an instrument.
PURPOSE AND OPERATION
The Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) to prescribe circumstances, for the purpose of paragraph 194A(3)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act), in which an application for provider approval under the family assistance law is taken not to have been made.
These amendments prevent providers from applying for child care provider approval in certain circumstances, where a provider has recently been refused for approval or had its approval cancelled because it did not meet fit and proper person requirements. Providers will also be unable to apply for approval where a person with management or control of the provider was a person with management or control of a provider that has recently been refused for approval or had its approval cancelled because it did not meet fit and proper person requirements.
The amendments also impose a restriction on applications for variation of child care provider approvals in certain circumstances where the Secretary has recently refused to approve a variation to the provider’s approval to add or remove a child care service, or where the Secretary has varied the provider’s approval to remove one or more child care services from the approval, because a person responsible for day-to-day management or control of the services was not a fit and proper person.
REGULATORY IMPACT
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required for the Amendment Rules as any amendments are unlikely to have more than a minor regulatory impact (OBPR ID 43805).
COMMENCEMENT
The Amendment Rules commence on the day after they are registered on the Federal Register of Legislation.
CONSULTATION
The department consulted with the Early Childhood Education and Care Reference Group (ECECRG) from mid-2019 to early-2020 on issues relevant to this measure. The ECECRG, whose members include representatives from large child care providers and peak bodies, has consistently expressed its support for measures that improve the efficiency and integrity of the application process for provider approvals.
The draft measure was presented to, and discussed in detail with, the ECECRG at its meeting on 22 July 2021. Members were invited to provide written input and feedback to the department. Feedback was received suggesting a shorter exclusion period for providers who were refused due to insufficient governance arrangements. The department responded to these comments outlining the reasons why an application would be refused due to governance and clarifying that the Secretary may decide that the exclusion period does not apply in exceptional circumstances.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021
The Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021 (the 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 Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) to prescribe circumstances, for the purpose of paragraph 194A(3)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act), in which an application for provider approval under the family assistance law is taken not to have been made.
These amendments prevent providers from applying for child care provider approval in certain circumstances, where a provider has recently been refused for approval or had its approval cancelled because it did not meet fit and proper person requirements. Providers will also be unable to apply for approval where a person with management or control of the provider was a person with management or control of a provider that has recently been refused for approval or had its approval cancelled because it did not meet fit and proper person requirements.
The amendments also impose a restriction on applications for variation of child care provider approvals in certain circumstances where the Secretary has recently refused to approve a variation to the provider’s approval to add or remove a child care service, or where the Secretary has varied the provider’s approval to remove one or more child care services from the approval, because a person responsible for day-to-day management or control of the services was not a fit and proper person.
Human rights implications
The Amendment Rules engage the following rights:
- the rights of the child under the Convention on the Rights of the Child (CRC), particularly Articles 3, 18, and 19.
Rights of the child
Article 3(1) of the CRC requires that in all actions concerning children, the best interests of the child shall be a primary consideration. Article 3(3) requires institutions and services responsible for the care of children to conform to standards including maintaining suitability of staff.
Article 18(2) also requires States Parties to provide appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and ensure the development of institutions, facilities and services for the care of children.
Article 19 of the CRC requires States Parties to take all appropriate measures to protect the child from all forms of injury or maltreatment while in the care of any person. This includes setting effective procedures to provide necessary support for the child and those who provide care for the child.
The Amendment Rules ensure that providers that do not meet the fit and proper person requirements will not be able to apply for approval again for a significant period after being found not to meet these requirements. The measures promote the rights under Article 3 and 18 by helping to ensure that, in providing appropriate assistance to families in performing their child-rearing responsibilities, only fit and proper providers with suitable staff and facilities are approved.
The Amendment Rules support the right in Article 19 to protect the child from injury or maltreatment while in the care of any person, by preventing providers that have been recently determined to not meet fit and proper person requirements from applying to become approved under the family assistance law. By preventing providers with a history of legislative non-compliance, criminal convictions, poor governance and poor financial management from entering the sector, the measure may help ensure that children in child care are protected from injury and maltreatment by providers found not to be fit and proper.
Conclusion
This Amendment Rules are compatible with human rights under the CRC.
Minister for Employment, Workforce, Skills, Small and Family Business, Stuart Robert
Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021
EXPLANATION OF PROVISIONS
Section 1: Name
- This is a formal provision that specifies the name of the instrument as the Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021.
Section 2: Commencement
2. This section provides that the Amendment Rules commence on the day after they 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.
Section 4: Schedules
4. This section provides that Principal Rules are amended as set out in the Schedule to the Amendment Rules.
SCHEDULE 1 – Amendments
5. Item 1 inserts a new section 41A to prescribe circumstances in which certain applications for approval as a provider, and certain applications for variation of a provider’s approval, made within a particular period, are taken not to be made.
6. New subsection 41A(1) prescribes certain circumstances in which applications for provider approval are taken not to be made.
7. These circumstances are that:
- the provider had an application for approval refused on the grounds that the provider did not meet the fit and proper person requirements in the 18 month period before the current application was made (the application exclusion period);
- the provider’s approval was cancelled during the application exclusion period on the grounds that the provider ceased to meet the fit and proper person requirements, which is a condition of continued approval;
- a person with management or control of the provider was a person with management or control of a provider that had an application for approval refused or that had its approval cancelled in the circumstances referred to in (a) or (b) above, during the application exclusion period.
- These amendments prevent a provider from seeking to be approved for Child Care Subsidy (CCS) soon after it was cancelled or was found unsuitable to be approved, due to a failure to meet fit and proper person requirements. Where a person with management or control of the provider was previously a person with management or control of a provider that has been cancelled or refused approval, the provider will also be prevented from applying for CCS approval.
- Item 1 also inserts a new subsection 41A(2) in the Principal Rules to prescribe certain circumstances in which an application for variation of a provider’s approval to add or remove a child care service is taken not to be made.
- These circumstances are that:
- the Secretary refused to approve a variation of the provider’s approval to add or remove a child care service during the application exclusion period because the service did not meet fit and proper person requirements;
- the Secretary varied the provider’s approval to remove one or more child care services during the application exclusion period because the service ceased to meet fit and proper person requirements, which is a condition for continued approval.
- These amendments prevent a provider from seeking to vary its provider approval soon after having an application to vary its approval refused, or where a service has been removed from the provider approval, due to not meeting the fit and proper person requirements.
- The amendments will support the integrity and efficacy of the CCS scheme by ensuring unsuitable providers cannot reapply for provider approval or service approval (or removal) soon after an unsuccessful application.
- Item 1 also inserts a new subsection 41A(3) in the Principal Rules to ensure there is capacity for an application to be processed, if the Secretary considers that special circumstances exist. This ensures that where there are special reasons that justify processing an application, these applications can be processed.
- New subsection 41A(4) defines application exclusion period as the period of 18 months ending on the day the provider makes the application.