GST-free Supply (In-home Care) Determination 2001

Administered by Department of the Treasury

Legislation au F2007B00336 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

 

GST-free Supply (In-home Care) Determination 2001

 

Summary

 

This determination is made under paragraph 38-150(e) of the A New Tax System (Goods and Services Tax) Act 1999 (the GST Act).

 

The purpose of the determination is to make GST-free, from 1 January 2001, a supply of in-home care, that is, child care provided in the home of a child, by a supplier that is eligible for funding from the Commonwealth under guidelines made by the Child Care Minister relating to that care but is not approved as an approved child care service under the A New Tax System (Family Assistance) (Administration) Act 1999 (the Family Assistance Administration Act).

 

Background

 

Subdivision 38-D of the GST Act deals with GST-free supplies of child care.  It makes GST-free a supply of child care by a child care service approved under the Family Assistance Administration Act for the purposes of family assistance law (parents may be eligible for child care benefit for that care) and a supply by a supplier that is not so approved but is eligible, under guidelines made by the Child Care Minister, for funding from the Commonwealth relating to specified types of care (parents are not eligible for child care benefit for that care).

 

Before 1 January 2001, in-home care, that is, child care provided in the home of a child, was provided by family day care services approved under the Family Assistance Administration Act for the purposes of family assistance law.  This supply of child care was GST-free under section 38-150 of Subdivision 38-D of the GST Act, as it operated before the commencement of the Taxation Laws Amendment Act (No. 8) 2000 (amendments made by this Act affected the operation of section 38‑150).

 

From 1 January 2001, in-home care may be provided by a family day care service and any other kind of service approved for the purposes of family assistance law, including a specialised in-home care service.  Such a supply is GST-free under section 38-145 of Subdivision 38-D of the GST Act, as amended by the Taxation Laws Amendment Act (No. 8) 2000.

 

In-home care may also be provided by suppliers that are not approved for the purposes of family assistance law but are eligible, under guidelines made by the Child Care Minister, for funding from the Commonwealth relating to in-home care (for example, Commonwealth funded in-home care may be supplied by innovative child care services as part of a mix of child care types they provide to meet best the needs of individual communities).  The provisions of Subdivision 38-D of the GST Act do not operate to make GST-free a supply of in-home care by those suppliers.

 

Paragraph 38-150(e) of the GST Act authorises the Child Care Minister to determine in writing a type of care provided by a supplier that is eligible for funding from the Commonwealth under guidelines made by the Child Care Minister relating to that care, for the purpose of making a supply of care by that supplier GST-free.

 

As it is intended that a supply of in-home care by a supplier that is not approved for the purposes of family assistance law but is eligible for Commonwealth funding in relation to that care is GST-free, this determination, made under paragraph 38-150(e) of the GST Act, makes in-home care supply by those suppliers GST-free.

 

The determination takes effect on 1 January 2001.  It has the effect of removing liability for GST of suppliers of Commonwealth funded in-home care that are not approved for the purposes of family assistance law.  This determination therefore does not result in the imposition of liabilities on any person in respect of anything done or omitted to be done before the date of its notification and it does not affect the right of any person so as to disadvantage that person.

 

Explanation of the provisions

 

Section 1 of the determination states the name of the determination and section 2 states that the determination commences on 1 January 2001.

 

Section 3 contains interpretation provisions.

 

Section 4 provides that a determination is made under paragraph 38-150(e) of the GST Act determining a supply of child care to be GST-free if it is a supply by a supplier that is eligible for funding from the Commonwealth under guidelines made by the Child Care Minister relating to in-home care.  Section 4 makes GST-free in‑home care supplied by a supplier that is not approved for the purposes of family assistance law (in-home care supplied by approved child care services is GST-free as a result of the operation of section 38-145).

 

“In-home care” is defined in section 3 as child care provided to one or more children that takes place in the home of one of the children being cared for.

 

The “Child Care Minister” is defined by reference to section 195-1 of the GST Act, which specifies that it is the Minister administering the Child Care Act 1972 and the family assistance law (within the meaning of section 3 of the Family Assistance Administration Act).

 

Overview

The GST-free Supply (In-home Care) Determination 2001 was enacted to address the issue of goods and services tax (GST) liability on in-home child care services provided by suppliers eligible for Commonwealth funding but not approved under the A New Tax System (Family Assistance) (Administration) Act 1999. This determination was made under the authority of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) and took effect from 1 January 2001. The policy objective of this determination was to ensure that in-home care supplied by such eligible suppliers would be exempt from GST, thereby aligning with the broader policy intent of providing support for child care services through Commonwealth funding while avoiding the imposition of GST on these essential services. The determination effectively removes the GST liability for suppliers of Commonwealth-funded in-home care that do not meet the approval criteria for family assistance purposes.

Scope and Application

The GST-free Supply (In-home Care) Determination 2001 applies to suppliers of in-home care services who are eligible for Commonwealth funding under guidelines set by the Child Care Minister, provided they are not approved as an approved child care service under the Family Assistance Administration Act. This legislation specifically targets in-home child care services, ensuring that these services are exempt from GST as of 1 January 2001. The geographic reach of this determination is aligned with the national scope of the GST Act, thereby affecting suppliers across Australia. Notably, this determination does not extend to supplies made by entities approved under the Family Assistance Administration Act, as these are already covered under the provisions of the GST Act for child care services. The legislation does not impose any new liabilities retroactively and does not disadvantage any person in terms of their rights. The applicability of the Act can be extended or restricted through subordinate instruments, aligning with the broader legislative framework of the GST Act.

Key Provisions

The GST-free Supply (In-home Care) Determination 2001, made under paragraph 38-150(e) of the A New Tax System (Goods and Services Tax) Act 1999, applies to in-home child care services provided from 1 January 2001. Section 4 of the determination specifies that in-home care provided by suppliers eligible for Commonwealth funding under guidelines from the Child Care Minister, but not approved as an approved child care service under the A New Tax System (Family Assistance) (Administration) Act 1999, is exempt from GST. This means that such in-home care services are not subject to the GST liability, distinguishing them from other child care services that might be subject to GST. The obligations imposed by this determination are primarily on the suppliers of in-home care services. They must be eligible for Commonwealth funding under guidelines set by the Child Care Minister and must not be approved as an approved child care service under the Family Assistance Administration Act. This eligibility and approval process ensures that only certain specified in-home care services qualify for the GST exemption. Suppliers need to ensure that they meet these criteria to avail of the GST-free status for their services. Any breach of the conditions set by this determination could potentially lead to civil or criminal consequences, although specific penalties are not outlined within the text. However, it is understood that failing to comply with the GST Act in general can result in significant penalties, including fines and imprisonment for serious offences. The determination itself does not explicitly state the penalties for non-compliance, but it is clear that adherence to the conditions is crucial to maintain the GST-free status of the in-home care services. The determination ensures that no existing liabilities are imposed retroactively and does not disadvantage any person who complied with the previous laws. It is designed to provide clarity and continuity in the application of GST exemptions for in-home care services, ensuring that eligible providers are not burdened with GST liabilities while maintaining the integrity of the tax system.

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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.