Explanatory Statement
Circulated by the Minister for Education
Child Care Subsidy Minister’s Amendment Rules (No. 1) 2019
Summary
The Child Care Subsidy Minister’s Amendment Rules (No. 1) 2019 (Amendment Rules) are made under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) and subitem 12(1) of Schedule 4 to the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (Jobs for Families Child Care Package Act).
The Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules). Part 7 of the Principal Rules sets out transitional rules relating to the implementation of the Jobs for Families Child Care Package Act. The amendments to the Principal Rules are made under subsection 85GB(1) of the Family Assistance Act and subitem 12(1) of Schedule 4 to that Act construed in accordance with subsection 33(3) of the Acts Interpretation Act 1901. Under subsection 33(3) of the Acts Interpretation Act 1901, 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, amend, or vary any such instrument.
Subitem 12(3) of Schedule 4 to the Jobs for Families Child Care Package Act provides that, without limitation, rules made under subitem 12(1) that are made on or before 2 July 2020 may provide that (amongst other things) the Family Assistance Act has effect with any modifications prescribed by the rules. In allowing, for a time, the rules to modify the operation of the Family Assistance Act, item 12 of Schedule 4 to the Jobs for Families Child Care Package Act operates as a so-called “Henry VIII clause”. The purpose of item 12 of Schedule 4 is set out in the Explanatory Memorandum to the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Bill 2016.
The Amendment Rules modify the operation of section 85CE of the Family Assistance Act. In particular, the modification to section 85CE will enable the Secretary to make a determination that a child was at risk of serious abuse or neglect on a day before 1 July 2019, without the approved child care provider that provided care to the child on that day having to apply for such a determination. The effect of a determination under section 85CE of the Family Assistance Act is that the parent or guardian of the child, or the child care provider providing care to the child, is entitled to ACCS (child wellbeing) for the period of the determination.
The Amendment Rules also make minor amendments to update references in the Principal Rules to a new version of the In Home Care National Guidelines, which provide information and guidance on the operation of the in home care program.
Background
Under the Family Assistance Act, a person whose child receives care from an approved child care service is entitled to an amount of child care subsidy (CCS) to offset the cost of that care. Usually, the maximum amount of CCS that a person is entitled to is 85% of the cost of the care (subject to a maximum hourly rate cap). However, under Division 3 of Part 4A of the Family Assistance Act, in specified circumstances a person may be eligible for additional child care subsidy (ACCS), which covers the full cost of the care of the child (subject to a maximum hourly rate cap).
Under Subdivision A of Division 3 of Part 4A, a person is eligible for ACCS (child wellbeing) for a child for a period for which:
- an approved child care provider has issued a certificate under section 85CB; or
- the Secretary has made a determination under section 85CE.
The provider’s certificate under section 85CB and the Secretary’s determination under section 85CE must start on the Monday of a week that includes a day in which the child was at risk of serious abuse or neglect.
An approved child care provider can only backdate the start of a certificate under section 85CB up to 28 days, and the certificate can only last a maximum of 6 weeks. If the child continues to be at risk of serious abuse or neglect thereafter, the provider can apply to the Secretary for a determination under section 85CE.
The Secretary can only make a determination under section 85CE on application by an approved child care provider, and the determination can only be backdated up to 28 days before the application was made.
Unfortunately, due to transition and Child Care Subsidy System (CCSS) information technology issues, a number of approved child care providers have been unable to issue certificates under section 85CB, or apply for determinations under section 85CE, that cover periods for which children in their care have been at risk of serious abuse or neglect.
This has meant that there have been periods since 2 July 2018 during which there have been children at risk of serious abuse or neglect and in relation to which provider certificates under section 85CB and Secretary determinations under section 85CE are not able to be made. While CCS has been paid for those periods, the higher rate ACCS has not been able to be paid.
The Amendment Rules address this by empowering the Secretary to make a determination under section 85CE on his or her own initiative – that is, without requiring an application by an approved child care service – and allowing such a determination to be backdated to cover any period during which the child was at risk of serious abuse or neglect.
The modifications to section 85CE made by the Amendment Rules only operate in relation to at risk days occurring before 1 July 2019, by which time processes and systems supporting the issue of certificates and the making of determinations for ACCS (child wellbeing), and any gaps identified in coverage of those instruments, will have been addressed.
Consultation
This amendment is in response to significant stakeholder feedback from approved providers and indirectly, from affected families.
Regulatory Impact Statement
The amendment to enable the Secretary to make a determination that a child was at risk of serious abuse or neglect on a day before 1 July 2019, without the approved child care provider that provided care to the child on that day having to apply for such a determination, has no regulatory impact (OBPR reference 24776).
Explanation of the provisions
Preliminary
Sections 1 to 4 of the Amendment Rules are formal provisions providing for the name, commencement, authority etc. for the instrument.
Section 1 states the name of the instrument as the Child Care Subsidy Minister’s Amendment Rules (No. 1) 2019.
Section 2 states that all provisions of the Amendment Rules commence on the day after they are registered on the Federal Register of Legislation.
Section 3 states that authorities to make the Amendment Rules are the Family Assistance Act and the Jobs for Families Child Care Package Act.
Section 4 provides that the Principal Rules are amended as set out in the Schedule to the instrument.
Schedule – Amendments to Child Care Subsidy Minister’s Rules
In December 2018, a new version of the In Home Care National Guidelines was published by the Department of Education and Training. Those guidelines provide information and guidance on the operation of the in home care program. Items 1 and 2 repeal and replace subsection 48A(8) and paragraph 48A(10)(c) of the Principal Rules, to update the references in those provisions to the In Home Care National Guidelines published in December 2018.
Item 3 inserts a new Division 4A into Part 7 of the Principal Rules. The new Division 4A consists of a new section 69A, which modifies the operation of section 85CE of the Family Assistance Act.
New subsection 69A(2) inserts a new subsection (4A) into section 85CE, which empowers the Secretary to make a determination under section 85CE (that a child was at risk of serious abuse or neglect on a day before 1 July 2019 (at risk day)) on his or her own initiative – that is, without needing an application from an approved child care provider under subsection 85CE(1)).
New subsection 69A(3) repeals and replaces paragraph 85CE(5)(a), which relates to when a determination under the section takes effect. The replacement paragraph continues to provide that a determination must commence on the Monday of a week that includes an at risk day, and continues to limit the backdating of a determination made in response to an application from a provider to 28 days. However, the paragraph does not limit the backdating of a determination made on the Secretary’s own initiative under new subsection (4A).
In summary, the modifications to section 85CE of the Family Assistance Act made by new section 69A of the Principal Rules allow the Secretary to make a determination that covers any period that a child was at risk of serious abuse or neglect up until 1 July 2019, thereby entitling the parent or guardian of the child, or the approved child care provider that provided care to the child during that period, to ACCS for the period.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Child Care Subsidy Minister’s Amendment Rules (No. 1) 2019
This Legislative Instrument 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 Amendment Rules (No. 1) 2019 (Amendment Rules) are made under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) and subitem 12(1) of Schedule 4 to the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (Jobs for Families Child Care Package Act).
The Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules). Part 7 of the Principal Rules sets out transitional rules relating to the implementation of the Jobs for Families Child Care Package Act. The Amendment Rules insert a new transitional provision into Part 7 of the Principal Rules. The new provision modifies the operation of section 85CE of the Family Assistance Act.
Under the Family Assistance Act, a person whose child receives care from an approved child care service is entitled to an amount of child care subsidy (CCS) to offset the cost of that care. Usually, the maximum amount of CCS that a person is entitled to is 85% of the cost of the care (subject to a maximum hourly rate cap). However, under Division 3 of Part 4A of the Family Assistance Act, in specified circumstances a person may be eligible for additional child care subsidy (ACCS), which covers the full cost of the care of the child (subject to a maximum hourly rate cap).
Under Subdivision A of Division 3 of Part 4A, a person is eligible for ACCS (child wellbeing) for a child for a period for which:
- an approved child care provider has issued a certificate under section 85CB; or
- the Secretary has made a determination under section 85CE.
The provider’s certificate under section 85CB and the Secretary’s determination under section 85CE must start on the Monday of a week that includes a day in which the child was at risk of serious abuse or neglect.
An approved child care provider can only backdate the start of a certificate under section 85CB up to 28 days, and the certificate can only last a maximum of 6 weeks. If the child continues to be at risk of serious abuse or neglect thereafter, the provider can apply to the Secretary for a determination under section 85CE.
The Secretary can only make a determination under section 85CE on application by an approved child care provider, and the determination can only be backdated up to 28 days before the application was made.
The modification to section 85CE made by the Amendment Rules with enable the Secretary to make a determination that a child was at risk of serious abuse or neglect on any day before 1 July 2019, without the approved child care provider that provided care to the child on that day having to apply for such a determination.
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 Article 3, 18, 23 and 27;
- the right to work and the right to social security under Articles 6 and 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
- the right to equality and non-discrimination under Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the CRC.
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 established by competent authorities, particularly in the areas of safety and health.
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 18(3) 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 23 recognises the right of the disabled child to special care and ensure the extension of assistance, subject to available resources, to the child and those responsible for his or her care, for which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
ACCS (child wellbeing) provides assistance to support access to child care for children who are at risk of serious abuse or neglect as a result of current or past circumstances or events. The definition of ‘at risk’ also includes situations where the child is likely to experience those circumstances in the future.
By enabling the Secretary to issue a determination under section 85CE of the Family Assistance Act without requiring an application from an approved child care service, and enabling that determination to cover any period from 2 July 2018 to 29 December 2019, the Amendment Rules will expand access to ACCS (child wellbeing). This promotes the rights of the child referred to above.
Right to work and social security
Article 6 of the ICESCR requires that States Parties recognise the right to work, including through developing policies and techniques to achieve steady economic, social and cultural development and full and productive employment. Article 9 recognises the right of everyone to social security.
The Australian Government is maintaining its commitment to support workforce participation and assist working families with the cost of child care. The right to work goes to the core objective of the CCS and ACCS payments, to help parents who want to work, or who want to work more. The Amendment Rules reinforce this commitment by ensuring child care fee assistance can be paid in a broader range of circumstances that will further the capacity of individuals to engage in work, study, training and other activities that promote workplace participation and engagement.
Right to equality and non-discrimination
The Amendment Rules support the purpose and ethos of Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the CRC, which is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons.
In particular, Article 2 of the CRC provides that every child has the right to equal treatment, without discrimination of any kind, irrespective of the social origin, property, disability, birth or other status of the child or the child’s parents or guardian.
Article 2 of the ICCPR provides that States Parties must undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR, without distinction of any kind, such as social origin, birth or other status.
Article 16 of the ICCPR requires that everybody shall have the right to recognition everywhere as a person before the law.
Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, States Parties are required to ensure that the law prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as social origin, birth or other status.
The provision of increased access to quality education and care to vulnerable children who may not otherwise have opportunity through approved child care service, enables children and families facing unique and challenging circumstances to have equal opportunity to access quality education and care arrangements.
Conclusion
The Amendment Rules are compatible with human rights. By enabling the Secretary to issue a determination under section 85CE of the Family Assistance Act without requiring an application from an approved child care service, and enabling that determination to cover any period from 2 July 2018 to 29 December 2019, the measures in the Amendment Rules advance human rights under the CRC, ICESCR and ICCPR .
Dan Tehan
Minister for Education