Federal Register of Legislation - Australian Government

Primary content

Specifications as made
This instrument sets out the number of weeks during which no session of care is provided to a child for the enrolment of that child to be taken to have ceased under subsection 219AD(3) of the A New Tax System (Family Assistance) (Administration) Act 1999.
Administered by: Education and Training
Registered 21 Sep 2017
Tabling HistoryDate
Tabled HR16-Oct-2017
Tabled Senate16-Oct-2017
Date of repeal 02 Jul 2018
Repealed by Self Repealing

Explanatory Statement

Child Care Benefit (When Enrolment Ceases) Specification 2017

Summary

The Child Care Benefit (When Enrolment Ceases) Specification 2017 (the Specification) is made by the Secretary of the Department of Education and Training under subsection 219AD(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). It sets out the number of weeks during which no session of care is provided to a child for the enrolment of that child to be taken to have ceased under subsection 219AD(3) of the Administration Act. It continues the operation of the A New Tax System (Family Assistance) (Administration) (Child Care Benefit — When Enrolment Ceases (Number of Weeks)) Specification 2007, which is repealed under Part 4 of the Legislation Act 2003 (Sunsetting of legislative instruments), on 1 April 2018.

Background

Division 4 of Part 3 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) includes provisions relevant to the eligibility requirements for child care benefits. A person must be eligible for child care benefit, before they may be determined, under Division 4 of Part 3 of the Administration Act to be entitled to be paid child care benefit.

Child care benefit is a means-tested payment which assists individuals with child care costs.  Under family assistance law, eligibility for child care benefit arises in respect of a session of care provided to a child.

Under subsection 219A(1) of the Administration Act an approved child care service must notify the Secretary of the enrolment of a child by an individual for care by the service. When a service does so, it can elect to receive payment of an enrolment advance for that child under Division 3 of Part 8A of the Act. Under those provisions, an enrolment advance for a child is repayable when the child ceases to be enrolled by the service.

Section 219AD of the Administration Act sets out when a child ceases to be enrolled by an approved child care service. Subsection 219AD(3) provides that the enrolment of a child is taken to have ceased if no session of care provided to the child, over a number of weeks specified by the Secretary by legislative instrument, is reported to the Secretary under section 219N. If an enrolment has ceased and the service starts providing care to the child again, this is a new enrolment that the service has to notify under subsection 219A(1).

Subsection 219AD(4) of the Administration Act provides that the Secretary is able to specify (under subsection (3)) different periods in relation to different kinds of services or types of care for the purposes of determining whether an enrolment has ceased under subsection 219AD(3). The different kinds of services are defined in subsection 3(1) of the Administration Act.

The Specification replicates the operation of the A New Tax System (Family Assistance) (Administration) (Child Care Benefit — When Enrolment Ceases (Number of Weeks)) Specification 2007 (2007 Specification). The new Specification will operate from 1 April 2018 until 2 July 2018, when it will be superseded.

The Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (the Amendment Act) was enacted on 4 April 2017. This Amendment Act gives effect to the legislative elements of the Government’s new child care system, including the Child Care Subsidy and Additional Child Care Subsidy from 2 July 2018.

In particular, the Amendment Act repeals and replaces Part 8A of the Administration Act, including section 219AD, and defines when a child ceases to be enrolled including the number of weeks which must have passed since a child last attended any sessions of care.

Consequently, the sole purpose of the Specification is to enable the operation of the current arrangements in specifying the number of weeks during which no session of care is provided to a child for the enrolment of that child to be taken to have ceased, to continue between the sunsetting of the 2007 Specification on 1 April 2018 and the commencement of the Amendment Act on 2 July 2018.

Consultation

Prior to this instrument being made, targeted consultation was undertaken with child care stakeholders notifying them of the remaking of the instrument and inviting their comments. Targeted consultation was deemed appropriate as the remaking of the instrument was machinery in nature to continue the operation of the A New Tax System (Family Assistance) (Administration) (Child Care Benefit — When Enrolment Ceases (Number of Weeks)) Specification 2007 until 2 July 2018. The instrument does not substantially alter existing arrangements.

Regulatory Impact Statement

The Specification does not require a Regulatory Impact Statement or a Business Cost Calculator Figure. The Specification remakes the 2007 Specification for a short period, and is machinery in nature and will not have more than minor regulatory impact. The Office of Best Practice Regulation (OBPR) agrees with this regulatory impact assessment (OBPR ID 22536).

Authority

The Child Care Benefit (When Enrolment Ceases) Specification 2017 is made under subsection 219AD(3) of the A New Tax System (Family Assistance) (Administration) Act 1999.

Explanation of Provisions

Section 1 sets out that the name of the instrument is the Child Care Benefit (When Enrolment Ceases) Specification 2017.

Section 2 provides that the instrument commences on 1 April 2018 and is repealed immediately after the commencement of Schedule 1 to the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (i.e. on 2 July 2018).

Section 3 sets out that the authority for the instrument is the A New Tax System (Family Assistance) (Administration) Act 1999.

Section 4 specifies that the number of weeks an enrolment is taken to have ceased if no session of care for the child is reported to the Secretary under section 219N of the Administration Act during these weeks is:

(a)   for the enrolment of a child for care by an approved centre based long day care service, an approved family day care service or an approved in‑home care service:

       (i)    if an enrolment advance was paid to the service under section 219RA of the Administration Act for the enrolment—6 weeks; or

       (ii)   in any other case—26 weeks

(b)   for the enrolment of a child for care by an approved occasional care service—26 weeks

(c)   for the enrolment of a child for care by an approved outside school hours care service:

       (i)    if the enrolment is not for a school holiday session and an enrolment advance was paid to the service under section 219RA of the Act for the enrolment—10 weeks; or

       (ii)   in any other case—26 weeks.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Child Care Benefit (When Enrolment Ceases) Specification 2017

This 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 Benefit (When Enrolment Ceases) Specification 2017 (the Specification) sets out the number of weeks during which no session of care is provided to a child for the enrolment of that child to be taken to have ceased. It continues the operation of the A New Tax System (Family Assistance) (Administration) (Child Care Benefit — When Enrolment Ceases (Number of Weeks)) Specification 2007, which is repealed under Part 4 of the Legislation Act 2003 (Sunsetting of legislative instruments), on 1 April 2018.

Division 4 of Part 3 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) includes provisions relevant to the eligibility requirements for child care benefit. A person must be eligible for child care benefit, before they may be determined, under Division 4 of Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) to be entitled to be paid child care benefit.

Child care benefit is a means-tested payment which assists individuals with child care costs.  Under family assistance law, eligibility for child care benefit arises in respect of a session of care provided to a child.

Under subsection 219A(1) of the Administration Act, an approved child care service must notify the Secretary of the enrolment of a child by an individual for care by the service.  When a service does so, it can elect to receive payment of an enrolment advance for that child under Division 3 of Part 8A of the Act. Under those provisions, an enrolment advance for a child is repayable when the child ceases to be enrolled by the service.

Section 219AD of the Administration Act sets out when a child ceases to be enrolled by an approved child care service. Subsection 219AD(3) provides that the enrolment of a child is taken to have ceased if no session of care provided to the child, over a number of weeks specified by the Secretary by legislative instrument, is reported to the Secretary under section 219N. If an enrolment has ceased and the service starts providing care to the child again, this is a new enrolment that the service has to notify under subsection 219A(1).

Subsection 219AD(4) of the Administration Act provides that the Secretary is able to specify (under subsection (3)) different periods in relation to different kinds of services or types of care for the purposes of determining whether an enrolment has ceased under subsection 219AD(3). The different kinds of services are defined in subsection 3(1) of the Administration Act.

The Specification replicates the operation of the A New Tax System (Family Assistance) (Administration) (Child Care Benefit — When Enrolment Ceases (Number of Weeks)) Specification 2007 (2007 Specification). The new Specification will operate from 1 April 2018 until 2 July 2018, when it will be superseded.

The Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (the Amendment Act) was enacted on 4 April 2017. This Amendment Act gives effect to the legislative elements of the Government’s new child care system, including the Child Care Subsidy and Additional Child Care Subsidy from 2 July 2018.

In particular, the Amendment Act repeals and replaces Part 8A of the Administration Act, including section 219AD, and defines when a child ceases to be enrolled including the number of weeks which must have passed since a child last attended any sessions of care.

Consequently, the sole purpose of the Specification is to allow the operation of the current arrangements in specifying the number of weeks during which no session of care is provided to a child for the enrolment of that child to be taken to have ceased, to continue between the sunsetting of the 2007 Specification on 1 April 2018 and the commencement of the Amendment Act on 2 July 2018.

Human Rights Implications

The making of the Specification is machinery in nature to enable current legislative requirements set out in the 2007 Specification to continue until 2 July 2018. The Specification does not substantially alter existing arrangements and will not have more than minor regulatory impact or change any human rights implications under the current instrument.

The Specification in isolation does not engage any of the applicable rights or freedoms. It merely specifies the number of weeks which must have passed since a child last attended any sessions of care for the purpose of defining when a child ceases to be enrolled with an approved child service. The principal enrolment requirements are set out in the Administration Act.

The Specification does not affect the capacity for an individual to continue to receive child care benefit if a child ceases to be enrolled. A child care service may later provide a session of care, or sessions of care, to a child under an original arrangement for which an individual may receive child care payments. It just means the later provision of care is taken to be a new enrolment which must be notified to the Secretary.

Conclusion

The Specification is compatible with human rights as it does not raise any human rights issues.

 

Dr Michele Bruniges AM

Secretary, Department of Education and Training