Explanatory Statement
Circulated by the Minister for Education
Child Care Subsidy Minister’s Amendment Rules (No. 3) 2018
Summary
The Child Care Subsidy Minister’s Amendment Rules (No. 3) 2018 (Amendment Rules) are made under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act).
The Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) and prescribe matters that are permitted as empowered by the Family Assistance Act and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Family Assistance Administration Act).
The amendments to the Principal Rules are made under section 85GB of the Family Assistance Act as 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.
In particular, the Amendment Rules will introduce minor amendments, from 1 January 2019 to:
- increase the child care subsidy (CCS) hourly rate cap for a session of care provided by an in home care (IHC) service from $25.48 to $32.00; and
- increase the number of child care places that may be allocated to IHC services from 3000 to 3200.
Background
The amount of CCS that is payable to an eligible individual with a child attending an approved child care service is calculated in accordance with Part 1 of Schedule 2 to the Family Assistance Act. The table in subclause 2(3) of that Schedule sets out the CCS hourly rate cap for the purposes of those calculations, by reference to the kind of child care service that provided care to the child. Item 4 of that table enables the CCS hourly rate cap for a kind a service prescribed in the Minister’s Rules to be the amount prescribed in those Rules.
Section 15B of the Principal Rules prescribes the CCS hourly rate cap for an IHC service at $25 (this amount is indexed under Schedule 4 to the Family Assistance Act, and is currently $25.48).
Commencing from 1 January 2019, the IHC CCS family hourly rate cap will increase from $25.48 to $32.00, to ensure families have access to affordable IHC and that the IHC market remains viable. The CCS IHC family hourly rate cap will be indexed by Consumer Price Index (CPI) each July as per Schedule 4 to the Family Assistance Act.
Division 5 of Part 8 of the Family Assistance Administration Act enables the making of Minister’s Rules that provide for a system of allocation of places to approved child care services (the allocation rules). Under section 198B of that Act, where the allocation rules apply to a child care service, the Secretary of the Department of Education and Training must allocate places to the service, in accordance with the allocation rules. Paragraph 198A(d) of the Family Assistance Administration Act empowers the Minister’s Rules to set the maximum number of places that can be allocated by the Secretary to approved child care services in a specified class.
Section 49C of the Principal Rules sets the maximum number places that can be allocated to all IHC services at 3000.
Commencing from 1 January 2019, the number of IHC places will increase by 200 to a total of 3200, to address families waiting to access an IHC place.
Consultation
To enable the amendments to commence on 1 January 2019, formal consultation has not been undertaken. However, the amendments address stakeholder feedback about the adequacy of the IHC family hourly rate cap and the demand for IHC places.
Regulatory Impact Statement
The change to the IHC family hourly rate cap and number of places has no regulatory impact (OBPR reference # 24556).
Explanation of the provisions
Preliminary
This contains preliminary matters relating to the name of the rules, commencement, authority and definitions.
Section 1 states the name of the instrument as the Child Care Subsidy Minister’s Amendment Rules (No. 3) 2018.
Section 2 states that all provisions of the Amendment Rules commence on 1 January 2019.
Section 3 states that authority to make the Amendment Rules is the Family Assistance 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
Item 5 amends subsection 15B(2) of the Principal Rules to replace the CCS hourly rate cap for IHC services of $25 with a new CCS hourly rate cap for IHC services of $32.
As a consequence of the amendment made by item 5, items 1, 2, 3 and 4 amend references to the CCS hourly rate cap for IHC services in notes and examples in subsection 15A(2) of the Principal Rules.
In December 2018, a new version of the In Home Care Guidelines was published by the Department of Education and Training. Those guidelines provide information and guidance on the operation of the IHC program. Items 6 and 7 repeal and replace subsection 48(8) and paragraph 48(10)(c) of the Principal Rules, to update the references in those provisions to the In Home Care Guidelines published in December 2018.
Item 8 amends section 49C of the Principal Rules to increase the maximum number of places that can be allocated by the Secretary to all IHC services from 3000 to 3200.
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. 3) 2018
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. 3) 2018 (Amendment Rules) are made under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act).
The Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) and prescribe matters that are permitted as empowered by the Family Assistance Act and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Family Assistance Administration Act).
In particular, the Amendment Rules will introduce minor amendments, from 1 January 2019 to:
- increase the child care subsidy (CCS) hourly rate cap for a session of care provided by an in home care (IHC) service from $25.48 to $32.00; and
- increase the number of child care places that may be allocated to IHC services from 3000 to 3200.
Human rights implications
The Principal Rules as amended by 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 1, 4, 7 and 28 of the Convention on the Rights of Persons with Disabilities (CRPD).
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 State 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.
IHC services provide early childhood education and care for families for whom other approved care types are not available or appropriate. This care type ensures that children can have access to quality care to support their learning and development when their families’ circumstances prevent them from attending other type of child care services.
Increasing the IHC family hourly rate cap and the number of places will improve access to IHC for the intended families, and thereby support the achievement of the human rights 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 and the IHC program, to help parents who want to work, or who want to work more. The 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.
Increasing the IHC family hourly rate cap and the number of places will further support workforce participation for families by increasing access and affordability to IHC as a flexible option where the family is not able to access other types of approved child care services during the times care is required.
Parents and carers who work non-standard hours or are geographically isolated face significant challenges with workforce participation where other forms of approved child care are not readily available. Similarly, workforce participation for families with challenging and complex needs are often inhibited. IHC supports such families through provision of access to education and care in the family home at times suitable for parents and carers, thereby facilitating increased workforce participation.
Right to equality and non-discrimination
The Rules support the purpose of the CRPD under Article 1, which is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.
Article 4(1) requires States Parties to adopt appropriate legislative, administrative and other measures for the implementation of the rights of persons with disabilities.
Article 7 requires that in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. States Parties are obligated to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
The provision of increased access (through increasing the IHC family hourly rate cap and the number of places) to quality education and care in the family home to children who would not otherwise have opportunity through other forms of 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 improving access to IHC services, the measures in the Amendment Rules advance human rights under the CRC, ICESCR and CRPD. These measures ultimately enable parents who wish to work by providing avenues to child care fee assistance, with the aim that children can have access to care that promotes their development and wellbeing.
Dan Tehan
Minister for Education and Training