Federal Register of Legislation - Australian Government

Primary content

Guides & Guidelines as made
This instrument establishes guidelines for the exercise of the Secretary’s power to allocate, and to reduce the allocation of, child care places to approved child care services.
Administered by: Education and Training
Registered 22 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Repealed by Self Repealing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 (Allocation of Child Care Places) Guidelines 2017

Summary

The Child Care Benefit (Allocation of Child Care Places) Guidelines 2017 (the Guidelines) are made by the Minister for Education and Training under section 206 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). It establishes guidelines for the exercise of the Secretary’s power to allocate, and to reduce the allocation of, child care places to approved child care services. The Guidelines continue the operation of the Child Care Benefit (Allocation of Child Care Places) Determination 2000, which is repealed under Part 4 of the Legislation Act 2003 (Sunsetting of legislative instruments), on 1 October 2017.

Background

Division 1 of Part 8 of the Administration Act provides for the approval, for the purposes of the family assistance law, of child care services by the Secretary.

Section 206 of the Administration Act provides that the Minister may, by legislative instrument, determine guidelines relating to the:

·         allocation of child care places to approved child care services; and

·         reduction in the number of places allocated to approved child care services.

Under subsection 207(1) of the Administration Act, the Secretary must allocate child care places to approved child care services covered by a determination made by the Minister under section 206. The Secretary must allocate places to these kinds of services in accordance with such a determination. Once places are allocated to a service, it is a condition of continued approval of the service under section 197 of the Administration Act that the service does not provide more places than the number which have been allocated by the Secretary. The Secretary may allocate places to an approved child care service at the time and in the manner the Secretary considers appropriate.

The Guidelines provide for the allocation of places to approved occasional care services and approved in-home care services. The instrument specifies, among other things, the matters that the Secretary must take into account when determining the areas of Australia in which child care places may be allocated for both approved occasional and in-home care services, the number of places for each area for each kind of service and the number of places to be allocated to an approved child care service of that kind.

The Guidelines also specify which places are to be considered to be in excess of the places provided by a service, and therefore may be taken out of the service’s allocation. Only a place that has been unoccupied continuously for 6 months immediately before the Secretary gives the service a notice of intended reduction of allocation may be considered as not being provided and therefore available for reduction. The Guidelines ensure that the service will be given at least 28 days (after the notice is given) for making a submission to the Secretary concerning the proposed reduction of allocation of the service’s places.

The Guidelines replicate the operation of the Child Care Benefit (Allocation of Child Care Places) Determination 2000 (the 2000 Determination). The 2000 Determination is repealed on 1 October 2017, under Part 4 of the Legislation Act 2003 (Sunsetting of legislative instruments). The new Guidelines will operate from 1 October 2017 until 2 July 2018, when they 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. The Amendment Act includes provisions to make subordinate legislation, known as Minister’s and Secretary’s Rules (the Rules). The Rules will replace many of the existing family assistance law subordinate legislative instruments.

In particular, the Amendment Act appeals and replaces the provisions in the Administration Act relating to allocation and reduction of child care places, including sections 206, 207, 207A and 207B, and enables the making of Minister’s Rules setting out the allocation rules.

Consequently, the sole purpose of the Guidelines is to enable the operation of the current arrangements for the allocation and reduction of child care places to continue between the sunsetting of the 2000 Determination on 1 October 2017 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 Child Care Benefit (Allocation of Child Care Places) Determination 2000 until 2 July 2018. The instrument does not substantially alter existing arrangements.

Regulatory Impact Statement

The Guidelines do not require a Regulatory Impact Statement or a Business Cost Calculator Figure. The Guidelines remake the 2000 Determination 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 (Allocation of Child Care Places) Guidelines 2017 is made under section 206 of the A New Tax System (Family Assistance) (Administration) Act 1999.

Explanation of Provisions

Part 1—Preliminary

Section 1 sets out that the name of the instrument is the Child Care Benefit (Allocation of Child Care Places) Guidelines 2017.

Section 2 provides that the instrument commences on 1 October 2017 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 provides that for the purposes of this instrument the term ‘child care place’ means:

(a)    for an approved in-home care service—a place for which in-home care can be provided by the service for 35 hours per week; and

(b)   for an approved occasional care service—a place for which occasional care can be provided by the service for 40 hours per week.

It also provides that the hours in a child care place at an approved child care service can be used to provide care to one child, or to more than one child in succession. Thus, a single child care place at a service can be used to provide care to more than one child, but only to one child at a time.

Part 2 — Allocation of child care places

Section 5 specifies that Part 2 of this instrument covers:

·         the allocation of child care places to approved in-home care services and approved occasional care services; and

·         both the initial allocation of child care places to a service and the subsequent allocation of additional places on application by a service.

Section 6 specifies that before the Secretary allocates a child care place to an approved child care service, the Secretary must determine in writing the areas of Australia in which child care places may be allocated and the number of child care places that may be allocated to approved in-home care services and approved occasional care services, respectively, located in each of those areas (subsection 6(1)). Subsection 6(2) allows for further division of that number for children in particular age groups.

Subsections 6(3) and (4) specifies matters the Secretary is required to take into account when making determinations for areas of Australia under subsection 6(1). These matters are the relative needs of different areas of Australia for the kind of child care places to be allocated and, in relation to child care places for occasional care services, the relative need for that kind of care of people who have recognised work, training or study commitments.

Section 6 replicates the operation of subsections 7(1) to (4) of the 2000 Determination.

Section 7 sets out the matters relevant to the allocation of child care places to approved child care services.

Subsection 7(1) specifies the matters the Secretary must take into account when allocating child care places, under subsections 207(1) and (2) of the Administration Act, to approved child care services.

The matter specified in paragraph 7(1)(a) is the determination made under subsection 6(1) in relation to the number of child care places in an area.

The matter specified in paragraph 7(1)(b) is the need for the relevant kind of care of the persons who are using or are likely to use the service, relative to the need of the persons who are using or likely to use another service of the relevant kind located in the area. It is a matter that the Secretary necessarily considers in the context of making allocation decisions requiring a judicious division of limited number of places. It requires the Secretary to take into account the needs of people using the service that applies for allocation as compared with the needs of people using another service of the same kind. The intention of this paragraph is to consider not only such factors like the size of the demand for care in a particular service as demonstrated by the service but also whether the needs of the people, or a group of people, using a particular service are such, that, in the Secretary’s view, should be given allocation priority, because, for example, of the particular social characteristic of the people or their particular circumstances.

The matter specified in paragraph 7(1)(c) is the service’s ability to provide child care that best meets the needs of:

·         in the case of an approved occasional care service—persons who have recognised work, training or study commitments; or

·         in the case of approved in-home care service—children to whom paragraph 10(4)(a) of the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Rules 2017 applies. In this context, the service’s ‘ability’ may depend on such factors as, for example, the sufficient number of carers in the service able to provide disability care, availability of the carers in rural or remote areas, or the financial viability of the service (for example, if the number of places that would support a service’s financial viability cannot be allocated to the service, the Secretary may decide not to allocate any places to the service).

The matter specified in paragraph 7(1)(d) is the service’s compliance, and history of compliance, with conditions for continued approval of the service.

Paragraph 7(1)(e) specifies that, when working out the number of places to be allocated to an approved child care service, the Secretary may take into account any other matter that the Secretary considers relevant to making the allocation decision for the service.

Subsection 7(2) prevents the Secretary from allocating child care places, or child care places of a particular kind, to a child care service so as to exceed the number of places, or places of that kind, determined under subsection 6(1) by more than 15 per cent.

Section 7 replicates the operation of subsections 7(5) to (9) of the 2000 Determination.

Part 3 — Reduction of allocation of child care places

Section 8 provides that Part 3 applies for the purpose of reducing, under section 207A of the Administration Act, the number of child care places allocated to an approved child care service that is an approved in-home care service.

Section 9 specifies that for subsection 207A(1) of the Administration Act, the Secretary may consider that a child care place is not provided by an approved child care service if the place has been unoccupied continuously for at least 6 months immediately prior to the Secretary giving the service a notice under subsection 207A(2) of the Administration Act.

Section 9 replicates the operation of subsection 8B(2) of the 2000 Determination.

Section 10 specifies matters in relation to notices proposing to reduce allocation of child care places.

Subsection 10(1) provides that a notice given by the Secretary to an approved child care service under subsection 207A(2) of the Administration Act must provide that service may make written submissions within a period of at least 28 days from the day the service is given the notice.

Subsection 10(2) provides that the notice may be given to the service in any of the ways set out in section 224A of the Administration Act and if so, the notice is taken, for the purpose of the family assistance law, to have been given to the service.

Section 10 replicates the operation of sections 8C and 8D of the 2000 Determination.

Part 4 — Saving of existing child care place allocations

Section 11 provides that existing allocations of child care places are not affected by the repeal of the 2000 Determination. The Secretary is taken to have made determinations about the areas in which places are to be allocated, and the numbers and kinds of those places, that are identical to existing determinations under the 2000 Determination. In addition, an approved child care service to which the Secretary had allocated child care places under section 207 of the Administration Act immediately before the 2000 Determination is repealed continues to have those child care places allocated.

 

 


 

Statement of Compatibility with Human Rights

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

Child Care Benefit (Allocation of Child Care Places) Guidelines 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 (Allocation of Child Care Places) Guidelines 2017 (the Guidelines) are made by the Minister for Education and Training under section 206 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). It establishes guidelines for the exercise of the Secretary’s power to allocate, and to reduce the allocation of, child care places to approved child care services. The Guidelines continue the operation of the Child Care Benefit (Allocation of Child Care Places) Determination 2000, which is repealed under Part 4 of the Legislation Act 2003 (Sunsetting of legislative instruments), on 1 October 2017.

Division 1 of Part 8 of the Administration Act provides for the approval, for the purposes of the family assistance law, of child care services by the Secretary.

Section 206 of the Administration Act provides that the Minister may, by legislative instrument, determine guidelines relating to the:

·         allocation of child care places to approved child care services; and

·         reduction in the number of places allocated to approved child care services.

Under subsection 207(1) of the Administration Act, the Secretary must allocate child care places to approved child care services covered by a determination made by the Minister under section 206. The Secretary must allocate places to these kinds of services in accordance with such a determination. Once places are allocated to a service, it is a condition of continued approval of the service under section 197 of the Administration Act that the service does not provide more places than the number which have been allocated by the Secretary. The Secretary may allocate places to an approved child care service at the time and in the manner the Secretary considers appropriate.

The Guidelines provide for the allocation of places to approved occasional care services and approved in-home care services. The instrument specifies, among other things, the matters that the Secretary must take into account when determining the areas of Australia in which child care places may be allocated for both approved occasional and in-home care services, the number of places for each area for each kind of service and the number of places to be allocated to an approved child care service of that kind.

The Guidelines also specify which places are to be considered to be in excess of the places provided by a service, and therefore may be taken out of the service’s allocation. Only a place that has been unoccupied continuously for 6 months immediately before the Secretary gives the service a notice of intended reduction of allocation may be considered as not being provided and therefore available for reduction. The Guidelines ensure that the service will be given at least 28 days (after the notice is given) for making a submission to the Secretary concerning the proposed reduction of allocation of the service’s places.

The Guidelines replicate the operation of the Child Care Benefit (Allocation of Child Care Places) Determination 2000 (2000 Determination). The 2000 Determination is repealed on 1 October 2017, under Part 4 of the Legislation Act 2003 (Sunsetting of legislative instruments). The new Guidelines will operate from 1 October 2017 until 2 July 2018, when they 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. The Amendment Act includes provisions to make subordinate legislation, known as Minister’s and Secretary’s Rules (the Rules). The Rules will replace many of the existing family assistance law subordinate legislative instruments.

In particular, the Amendment Act appeals and replaces the provisions in the Administration Act relating to allocation and reduction of child care places, including sections 206, 207, 207A and 207B, and enables the making of Minister’s Rules setting out the allocation rules.

Consequently, the sole purpose of the Guidelines is to enable the operation of the current arrangements for the allocation and reduction of child care places to continue between the sunsetting of the 2000 Determination on 1 October 2017 and the commencement of the Amendment Act on 2 July 2018.

Human Rights Implications

The making of the Guidelines is machinery in nature to enable current legislative requirements set out in the 2000 Determination to continue until 2 July 2018. The Guidelines do 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 Guidelines engage the following rights:

Rights of equality and non-discrimination – Articles (2), (16) and (26) of the International Covenant on Civil and Political Rights (ICCPR).

The rights of the child – Article 3 of the Convention of the Rights of the Child (CRC).

The right to work – Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

The right to be free from discrimination

Article 26 of the ICCPR and Article 2 of the CRC requires that persons are equal before the law and that the law shall provide equal and effective protection against discrimination on any grounds.

To the extent that places in occasional care and in-home care is a capped program and, specifically that spaces are specifically allocated for in-home care of children with disabilities, this institutional restriction limits the right of young children not to be discriminated against on any grounds in that it positively differentiates in favour of children with disabilities. However, such a limitation is reasonable and proportionate in that it affirms the special needs and particular rights of children with disabilities who otherwise may be deprived of opportunities to participate in early childhood education. Article 2 of the CRC expressly recognises that children with disabilities may require additional, special assistance in order to ensure their integration and the realisation of their rights.

Government funding for occasional care services (OCC) commenced at a time when all child care assistance was capped. It is one of two remaining capped child care types (in-home care is the other). OCC is a centre-based form of child care. OCC services are responsive to the needs of the general community and provide flexible care which allows parents to meet their work-related and non-work related commitments. The practice of capping the number of approved occasional care places in the child care market is also considered to be an administratively effective and efficient way of managing this care type by enabling the forecasting and management of the amount of funding provided to eligible families through child care benefit and to services through the Community Support Program.

Although, occasional care places are usually allocated through a competitive allocation round, there is no requirement to allocate places in this manner. It is at the discretion of the Secretary to allocate places at any time as long as places exist and that the requirements of the Guidelines are met. As such, existing approved OCC services can apply for additional places under subsection 207(2) of the Administration Act by making an application to the Secretary. 

In relation to in-home care, the allocation provisions and placement capping are a reasonable and appropriate limit on human rights as in-home care is only designed to be used by families who cannot access any other forms of child care and who meet additional eligibility criteria. In-home care is currently underutilised so the allocation of places should not impact the ability for eligible families to access this care. As with OCC places, the Secretary also has the power to allocate additional in-home care places to services based on an areas determination which allows the department to make adjustments if appropriate.

Further, the allocation provisions enhance the integrity and financial sustainability of the payment scheme to ensure it can continue to provide effectively targeted support to individuals. Child care assistance provisions are designed to ensure that most hours of funded child care are directed to those with the greatest work commitments and are consistent with the government’s support for workforce participation and ear ly childhood education.

The rights of the child

Article 3 of the CRC recognises that in all actions concerning children, the best interests of the child shall be a primary consideration. The Guidelines engage the rights of the child in that it provides for the allocation of places to approved occasional care services and approved in-home care services including specifying the matters that the Secretary must take into account when determining the areas of Australia in which child care places may be allocated for both approved occasional and in-home care services, the number of places for each area for each kind of service and the number of places to be allocated to an approved child care service of that kind.

The allocation of child care places in conjunction with the condition of continued approval that a service with allocated places not provide more places than allocated supports the special protection measures and dedicated care to be afforded to children under CRC and is in furtherance of fostering their evolving capacities and the progressive exercise of their rights by ensuring that children’s best interests are integral to service planning and the provision of quality assured and targeted early childhood education. For the exercise of their rights, young children have particular requirements for physical nurturance, emotional care and sensitive guidance, as well as for time and space for social play, exploration and learning. These requirements are best achieved within a framework of laws, policies and programmes for early childhood, which includes effective allocation of child care places in approved occasional and in-home care. By extension, this ensures that children’s rights and development is paramount and the allocations are appropriate in order to provide effective child-centred care practices, curricula and pedagogies.

The Right to work

Article 6 of the ICESCR requires that a person has a right to work, which includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts, and appropriate steps are taken to safeguard this right.

Under the CRC, States Parties are required to respect the responsibilities, rights and duties of parents or other persons who have responsibility for the child to provide direction and guidance in the child's exercise of the rights recognised in the CRC. Further, States Parties are also required under the CRC to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child and to provide appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, in particular to ensure that children of working parents have the right to benefit from child care services and facilities for which they are eligible.

States parties are required to render appropriate assistance to parents, legal guardians and extended families in the performance of their child-rearing responsibilities (Articles 18(2) and 18(3)), including ensuring that children receive necessary protection and care (Article 3(2)).

The UN Committee has recognised that appropriate assistance to parents can best be achieved as part of comprehensive policies for early childhood including the provision education during the early years. The measures dually promote the rights of the child and the rights of parents by simultaneously conferring appropriate support to parents and enabling young children to actively participate in early childhood education. In particular, Article 18(3) acknowledges that many parents combine employment obligations with their parental responsibilities. 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.

Further, occasional care promotes the right to work in that it ensures in-home care is available to working families who cannot access any other forms of child care and who meet additional eligibility criteria. The provision of occasional care services supports and promotes the right to work as flexible care arrangements allow parents to variously meet their work-related and non-work related commitments.

To the extent that in-home and occasional care services are subject to allocation provisions, this is a reasonable and proportionate limitation on the rights of the child and the right to work as this approach to the provision of services encourages proper assessment of suitability against criteria so that a fair and sustainable payment goes to those in genuine need. The practice of capping the number of approved occasional and in-home care places in the child care market is an efficient way of managing this care type by enabling the forecasting and management of the amount of funding provided to eligible families through child care benefit and to services through the Community Support Program

In any event, the allocation scheme is flexibly applied to meet the evolving care needs of families as the Secretary is empowered to allocate additional in-home and occasional care places to services based on an areas determination which allows the department to make adjustments if and where appropriate.

Conclusion

The Guidelines are compatible with, and in key respects promote, human rights. To the extent that the measures in the Guidelines place a limitation on human rights, that limitation is reasonable and proportionate, having regard to the legitimate policy objectives.

 

 

Simon Birmingham

Minister for Education and Training