EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 362
Issued by the authority of the Minister for Minister for Early Childhood Education, Childcare and Youth
Subject - Child Care Legislation Amendment Act 1998
Child Care (Transitional) Repeal Regulations 2009
Authority
Section 4 of the Child Care Legislation Amendment Act 1998 (the Amendment Act), provides that regulations may deal with transitional matters relating to amendments made by Schedule 1 of the Amendment Act and that the Governor-General may make regulations for this purpose.
Purpose and operation
As part of the 2008 stocktake of Commonwealth regulations, various departments were requested to repeal outstanding redundant regulations identified during the stocktake. The Child Care (Transitional) Regulations 1998 (the Principal Regulations) were identified as redundant regulations requiring repeal. The purpose of the Child Care (Transitional) Repeal Regulations 2009 (the Repeal Regulations) is to repeal the Principal Regulations.
The sole purpose for which the Principal Regulations were made was to ensure the Child Care (Eligible Child Care Centres) Guidelines (the Guidelines) continued in force after the repeal of its enabling provision by the Child Care Legislation Amendment Act 1998 (the Amendment Act).
The then, Minister for Family Services (the Minister) made Guidelines pursuant to the Minister’s guideline-making power under section 4C of the Act. Section 4C of the Act permits the Minister to make guidelines to specify criteria for determining whether a child care centre is an ‘eligible child care centre’ for the purposes of the Act.
The enactment of the Child Care Legislation Amendment Act 1998 (the Amendment Act) implemented a number of 1997 Budget initiatives and amended a number of Acts including the Act. Section 4 of the Amendment Act provides that regulations may deal with transitional matters relating to amendments made by Schedule 1 of the Amendment Act and that Governor-General may make regulations for this purpose.
Item 5 of Schedule 1 of the Amendment Act repealed and substituted the Minister’s guideline-making power under section 4C of the Act. The unintended consequence of the repeal of section 4C of the Act was that the enabling provision of the Guidelines was also repealed. To ensure the Guidelines continued in force after the repeal of section 4C of the Act, the Governor-General made the Principal Regulations.
Since the enactment of the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000 the Guidelines have no longer been in force; consequently the Principal Regulations have since then been redundant and require repeal.
The Repeal Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
The Repeal Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Consultation
Consultation was not undertaken and was not considered necessary as the instrument is of a machinery nature does not alter existing arrangements.
Overview
The Child Care (Transitional) Repeal Regulations 2009 were introduced as a legislative instrument under the authority of the Child Care Legislation Amendment Act 1998. This Act, enacted to implement various budget initiatives and amend existing legislation, inadvertently caused the repeal of the Minister’s guideline-making power under section 4C of the Act, which was crucial for determining eligibility criteria for child care centres. To ensure that the Child Care (Eligible Child Care Centres) Guidelines remained in force despite this repeal, the Governor-General subsequently made the Child Care (Transitional) Regulations 1998. However, as these regulations became redundant following the enactment of the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000, the Child Care (Transitional) Repeal Regulations 2009 were introduced to repeal the redundant transitional regulations. These repeal regulations are of a machinery nature and do not alter existing arrangements, hence consultation was deemed unnecessary.
Scope and Application
The Child Care (Transitional) Repeal Regulations 2009 applies to the transitional repeal of the Child Care (Transitional) Regulations 1998, which were put in place to ensure that the Child Care (Eligible Child Care Centres) Guidelines remained in force after the repeal of their enabling provision by the Child Care Legislation Amendment Act 1998. The Act affects entities involved in child care services and the administration of child care legislation, ensuring that the guidelines remain applicable until superseded by subsequent legislation. The regulations have a national reach, applying across Australia as they pertain to the amendment of Commonwealth legislation. There are no stated exclusions or exemptions in the Repeal Regulations; they solely address the repeal of the redundant transitional regulations. The application of the Act may be extended or restricted through subordinate instruments, although in this instance, the regulations are specific to the repeal process and do not introduce new scope or restrictions.
Key Provisions
The Child Care (Transitional) Repeal Regulations 2009, issued under the Child Care Legislation Amendment Act 1998, primarily address the repeal of the Child Care (Transitional) Regulations 1998 (Section 1). These regulations were originally enacted to ensure the continuation of the Child Care (Eligible Child Care Centres) Guidelines following the amendment of the Child Care Legislation Amendment Act 1998. With the Guidelines now superseded by the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000, the original regulations have become redundant and are now repealed by the 2009 Regulations (Section 2).
The Act imposes specific obligations on the relevant parties, requiring the repeal of the Principal Regulations to align with the current legislative framework. This repeal is necessary to streamline and update the regulatory environment, ensuring that outdated regulations do not interfere with the current operations and guidelines governing child care services in Australia. By repealing these regulations, the Act aims to maintain a coherent and effective regulatory system that supports the ongoing administration and oversight of child care services.
Failure to adhere to the provisions of these regulations could result in legal consequences, although specific offences, penalties, or civil/criminal consequences are not detailed in the Explanatory Statement. The overarching legislative intent is to ensure that the child care sector operates under current, relevant regulations, thereby maintaining high standards of care and compliance within the sector. The streamlined regulatory environment helps to avoid potential legal complexities and ensures that all stakeholders are operating within the most current legal framework.