Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021

Administered by Department of Education

Legislation au F2021L01733 Rules Not in force Legislative Instrument

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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

  1. 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.
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. New subsection 41A(4) defines application exclusion period as the period of 18 months ending on the day the provider makes the application.

Overview

The Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021 were enacted to address the problem of child care providers being repeatedly refused or having their approval cancelled due to failing to meet fit and proper person requirements. These rules were introduced by the Minister for Employment, Workforce, Skills, Small and Family Business under the authority of the A New Tax System (Family Assistance) Act 1999. The policy objective is to enhance the integrity and efficacy of the Child Care Subsidy scheme by preventing unsuitable providers from reapplying for approval or varying their approval soon after an unsuccessful application. The rules achieve this by establishing circumstances under which applications for provider approval and variations to provider approval are considered not to have been made, thereby ensuring that only fit and proper providers are approved to offer child care services. These amendments aim to protect children by ensuring that providers found unsuitable due to non-compliance with legislative requirements, criminal convictions, poor governance, or poor financial management are prevented from entering the sector. By imposing an exclusion period of 18 months, the rules safeguard children from potential injury or maltreatment by maintaining high standards for those responsible for their care. The measures also align with human rights under the Convention on the Rights of the Child, particularly Articles 3, 18, and 19, by promoting the best interests of the child and ensuring that only suitable providers are approved.

Scope and Application

The Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021 apply to child care providers and their management personnel who seek approval or variation of approval for child care services under the family assistance law, as governed by the A New Tax System (Family Assistance) Act 1999. These amendments specifically target providers who have been previously refused approval or had their approval cancelled due to not meeting the fit and proper person requirements, or where a person with management or control of the provider was involved in such an outcome with another provider. This rule applies nationally across Australia, given its origin under the Commonwealth Act. The Amendment Rules impose exclusion periods during which these providers cannot make new applications for approval or variations of their current approval, aiming to maintain the integrity and efficiency of the child care subsidy scheme by preventing unsuitable providers from re-entering the system. The exclusion period is set at 18 months from the date of the refusal or cancellation. While the Amendment Rules themselves do not explicitly extend their application through subordinate instruments, they are framed under the broader legislative umbrella of the Family Assistance Act, which allows for further regulation and clarification through associated rules and instruments.

Key Provisions

The Child Care Subsidy Minister’s Amendment (Application Exclusion Period) Rules 2021 (Amendment Rules) introduce significant changes to the existing Child Care Subsidy Minister’s Rules 2017 (Principal Rules) (Section 4). Primarily, the Amendment Rules introduce new section 41A, which specifies circumstances under which certain applications for child care provider approval and variations to such approvals are not considered to have been made (Schedule 1, Item 1). According to new subsection 41A(1), an application for approval is deemed not to have been made if the provider had an application for approval refused, or their approval was cancelled, within the preceding 18 months due to not meeting fit and proper person requirements (Schedule 1, Items 5 and 6). This restriction also applies if a person with management or control of the provider was involved with another provider that faced similar refusal or cancellation (Schedule 1, Item 6). Furthermore, new subsection 41A(2) states that an application for variation of a provider's approval to add or remove a child care service is not considered if it was refused or varied by the Secretary during the exclusion period for the same fit and proper person reasons (Schedule 1, Item 1). These provisions aim to prevent unsuitable providers from quickly reapplying after a refusal or cancellation, thereby maintaining the integrity of the child care subsidy scheme. The Amendment Rules impose specific obligations on child care providers and their management. Providers who have had their applications for approval refused or their approvals cancelled within the past 18 months due to failing to meet fit and proper person requirements are prohibited from making new applications during this period (Schedule 1, Item 5). Similarly, providers with management or control individuals who were involved with other providers facing similar issues are also barred from applying (Schedule 1, Item 6). Additionally, providers cannot apply for variations to their approvals to add or remove child care services if such variations were previously refused or varied by the Secretary due to fit and proper person concerns (Schedule 1, Item 1). These restrictions ensure that only suitable providers can participate in the child care subsidy scheme, thereby protecting the welfare of children in care. While the Amendment Rules themselves do not explicitly outline specific offences, penalties, or consequences for breach, the underlying legislation, the A New Tax System (Family Assistance) Act 1999, may impose penalties for non-compliance. Under the Family Assistance Administration Act 1999, penalties for making false or misleading statements or providing false or misleading information can include fines and imprisonment. Specifically, section 286 of the Family Assistance Administration Act prescribes a maximum penalty of 500 penalty units (approximately AUD 77,500 as of 2023) or imprisonment for five years, or both, for serious offences. Therefore, providers who circumvent the Amendment Rules by making prohibited applications may face these severe penalties if found in breach of the broader legislative framework.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.