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Child Care Subsidy Minister’s Amendment Rules (No. 1) 2020

Authoritative Version
  • - F2020L00115
  • In force - Latest Version
Rules/Other as made
These rules amend the Child Care Subsidy Minister’s Rules 2017 to prescribe payments for the purpose of paragraph 2(2A)(c) of Schedule 2 to the A New Tax System (Family Assistance) Act 1999, to provide relief to families who are residents of bushfire affected areas, and to families of volunteer fire fighters actively involved in fighting bushfires.
Administered by: Education, Skills and Employment
Registered 10 Feb 2020
Tabling HistoryDate
Tabled HR11-Feb-2020
Tabled Senate12-Feb-2020
To be repealed 09 Sep 2020
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

Explanatory Statement

 

Child Care Subsidy Minister’s Amendment Rules (No. 1) 2020

Purpose and Authority

The Child Care Subsidy Minister’s Amendment Rules (No. 1) 2020 (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).

The Amendment Rules prescribe payments for the purpose of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act, which are not deducted for the purpose of determining the amount of an individual’s hourly session fee, when determining the hourly rate of Child Care Subsidy (CCS) the individual is entitled to. Such prescribed payments can partially or wholly cover the co-contribution amount that would otherwise be payable by those individuals.

The payments prescribed by the Amendment Rules provide relief to families who are residents of bushfire affected areas; and to families of volunteer fire fighters actively involved in fighting bushfires.

The payments for the benefit of bushfire affected families are available for a 12 month period commencing on 1 December 2019. The payments for the benefit of families of volunteer fire fighters are available for a 3 month period commencing on 1 December 2019. The payments may be made by State or Territory, an authority of a State or Territory or a registered charity. However, the payments for the benefit of bushfire affected families cannot be made to child care provider by a registered charity that is an associate of that child care provider.

Background

Prescribed payments under clause 2(2A) of Schedule 2 to the Family Assistance Act

Clause 2 of Schedule 2 to the Family Assistance Act sets out the method for determining the “hourly rate of CCS” that applies to an individual for a session of care provided by a child care service to a child in a week. It provides that the hourly rate of CCS is the individual’s applicable percentage (as determined by clause 3) of the lower of the “hourly session fee” for the individual; and the “CCS hourly rate cap” (as set out in subclause 2(3)) rounded to the nearest cent.

This means that in circumstances where an individual’s hourly session fee is less than the CCS hourly rate cap, their hourly rate of CCS will be determined based on their hourly session fees. This is to prevent individuals from receiving more CCS than they were actually liable to pay in full fees for the session of care.

Subclause 2(2) of Schedule 2 sets out the method for calculating the “hourly session fee”. It provides that it is the amount the individual is liable to pay the provider for an hour of the session of care reduced by:

·         the hourly rate of any payment which the individual benefits from for the session of care (other than CCS, ACCS or, relevantly, a payment prescribed under of paragraph 2(2A)(c) of Schedule 2); and

·         the amount per hour of any reimbursement fringe benefit in respect of the session of care.

The intention of deducting the above types of payments that the individual benefits from, from the hourly session fee calculation is to ensure that as much as possible, CCS is calculated based on the full fee charged by a provider for a session of care, without adjustment. This results in individuals having a co-contribution amount to pay towards the fees for the session of care.

However, paragraph 2(2A)(c) of Schedule 2 allows for payments to be prescribed in the Minister’s Rules, which are not deducted for the purpose of determining the amount of an individual’s hourly session fee. This is intended to help to ensure, where appropriate, cost is not a barrier to individuals accessing early learning and child care, as the prescribed payments partially or wholly cover the co-contribution amount that would otherwise be payable by those individuals.

Prescribed payments for bushfire relief

The Amendment Rules prescribe payments for the purpose of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act. The purpose of these payments is to provide assistance to families who are residents of bushfire affected areas; and to families of volunteer fire fighters actively involved in fighting bushfires.

Commencement

The Amendment Rules commence on 1 December 2019.

The prescribed payments are available in respect of a limited time period, to ensure that the relief provided is targeted and relevant. The payments for the benefit of bushfire affected families are available for a 12 month period commencing on 1 December 2019, which enables this financial relief to be available to families during the bushfires and a bushfire recovery period. The payments for the benefit of volunteer fire fighters are available for a 3 month period commencing on 1 December 2019, which recognises that the worst of the 2019/2020 Australian bushfires is likely to occur over the Summer period.

The retrospective commencement date is intended to ensure that families who reside in bushfire affected areas and families of volunteer fire fighters are able to receive the benefit of the prescribed payments from 1 December 2019, allowing them to reduce their out-of-pocket costs for child care from this time. The retrospective commencement date of these payments is intended to provide appropriate relief to families recognising that the 2019/2020 Australian bushfires commenced in late 2019. These Amendment Rules have a beneficial impact on families affected by bushfires and on families of volunteer fire fighters. Many of these families’ earning capacity and income may have been affected by bushfires from late 2019, making it difficult for them to afford to pay for their children to access quality education and care. As the prescribed payments will partially or wholly cover the co-contribution amount that would otherwise be payable by these families, this will relieve some of their financial pressures and facilitate continuity of care to their children.

Consultation

The Early Childhood Education and Care Reference Group - Minister’s Rules Working Group members, were consulted on 17 January 2020 and were generally supportive of the measure.

Regulatory Impact Statement

The Office of Best Practice Regulation has agreed the Amendment Rules have no regulatory impact (OBPR reference 26031).

 


Explanation of the provisions

Preliminary

Sections 1 to 4 of the Amendment Rules are formal provisions providing for the name, commencement, authority etc. for the instrument.

Section 1 states the name of the instrument as the Child Care Subsidy Minister’s Amendment Rules (No. 1) 2020.

Section 2 states that sections 1 to 4 of the Amendment Rules commence on the day after the instrument is registered on the Federal Register of Legislation; and that Schedule 1 commences on 1 December 2019.

The retrospective commencement date for Schedule 1 is intended to ensure that families who reside in bushfire affected areas and families of volunteer fire fighters are able to receive the benefit of the prescribed payments from 1 December 2019, allowing them to reduce their out-of-pocket costs for child care from this time. The retrospective commencement date of these payments is intended to provide appropriate relief to families recognising that the 2019/2020 Australian bushfires commenced in late 2019.

Section 3 states that the Amendment Rules are made under the Family Assistance Act.

Section 4 provides that the Principal Rules are amended as set out in the Schedule to the Amendment Rules.

Schedule – Amendments to Child Care Subsidy Minister’s Rules

Item 1 add a new section 16A to the Principal Rules.

Section 16A prescribes payments for the purpose of clause 2(2A) of Schedule 2 to the Family Assistance Act.

Payments for residents of bushfire affected areas

This is intended to assist families who are residents of bushfire affected areas. Subsection 16A(1) sets out the requirements, all of which must be met for a payment to be a prescribed payment. These requirements are:

·         the payment benefits an individual in respect of a session of care provided wholly or partly in the “relevant period”, which is a 12 month period commencing on 1 December 2019;

·         at any time during the relevant period, the individual was a resident of a local government area;

·         according to the information freely available and published on the Australian Government Disaster Assist website (www.disasterassist.gov.au), an Australian Government Disaster Recovery Payment (within the meaning of the Social Security Act 1991), is available in respect of the local government area; and a bushfire that occurred wholly or partly during the relevant period;;

·         the payment is made by: a State or Territory; or an authority of a State or a Territory; or a registered charity.

The 1 December 2019 commencement date recognises that the 2019/2020 Australian bushfire season commenced in late 2019. The 12 month period is to ensure that residents of bushfire affected areas are able to receive the benefits of this type of prescribed payment throughout the bushfire season and into a bushfire recovery period.

 

Subsection 85GB(2A) of the Family Assistance Act states that despite subsection 14(2) of the Legislation Act 2003, the Minister’s rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time. This enables the reference to the Australian Government Disaster Assist website to be incorporated by reference as it exists from time to time.

 

The Australian Government Disaster Assist website was chosen as the source of information to determine whether an area is a bushfire affected area for the purpose of this prescribed payment as it list areas eligible for various forms of financial assistance due to disaster and specifies the type of disaster. The Australian Government Disaster Recovery Payment (within the meaning of the Social Security Act 1991) is a form of one-off financial assistance available for eligible Australians adversely affected by the bushfires. The Australian Government Disaster Assist website specifies the local government areas, affected by bushfire, which this form of financial assistance is available for.

 

The Australian Government Disaster Assist website is easily accessible by members of the public, which would assist individuals determine whether they might be eligible for the prescribed payment. The website is updated regularly, ensuring that the scope of individuals eligible for the prescribed payment evolves to encompass additional people who may be affected by bushfires during the relevant period, enabling them to access this financial relief as appropriate. The website is also run and maintained by the Australian Government, which ensure that it is a reputable and authoritative source of information about disasters, and reduces the risk associated with incorporating by reference a website as it exists from time to time.

 

Payments for volunteer fire fighters

 

This is intended to assist families of volunteer fire fighters who are actively engaged in fighting the 2019/2020 bushfires. Subsection 16A(3) sets out the requirements, all of which must be met for a payment to be a prescribed payment. These requirements are:

·         the payment benefits an individual in respect of a session of care provided wholly or partly in the relevant period, which is a 3 month period commencing on 1 December 2019; and

·         at any time during the relevant period the individual engaged in bushfire fighting activities as a volunteer fire fighter in Australia; and

·         the payment is made by a State or Territory; or an authority of a State or a Territory; or a registered charity.

Payments to assist volunteer fire fighters are available for a 3 month period commencing on 1 December 2019. The 1 December 2019 commencement date recognises that the 2019/2020 Australian bushfire season commenced in late 2019. The 3 month period is to ensure that volunteer fire fighters are able to receive the benefits of this type of prescribed payment throughout the Australian Summer, which is anticipated to be the worst part of the bushfire season.

 

Exception: certain payment for associated child care providers

 

Subsection 16A(3) specifies that a payment is not prescribed for the purpose of subsection 16A(1) or 16A(2) where the payment is made by a registered charity; and the registered charity is either the child care provider that provided the session of care, or an associate (within the meaning of the Income Tax Assessment Act 1997) of the child care provider that provided the care.

 

Subsection 16A(3) is intended to avoid allowing a situation where the child care provider itself, or a registered charity, which is associated or connected to the child care provider, makes a payment to that provider, ostensibly to benefit bushfire affected families or families of volunteer fire fighters, but in circumstances where the financial benefit is directed towards the child care provider.

 

However, in order to ensure that such registered charities may still assist bushfire affected families, they can provide payments to families whose children attend other child care services, which are not associated or connected to the registered charity. In addition registered charities are able to provide other forms of financial assistance to bushfire affected families.

 

Definitions

 

Subsection 16A(4) provides definitions for the terms “registered charity” and “relevant period.”

 

 

 

 

 

 

 

 

 


 

 

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. 1) 2020

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. 1) 2020 (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). The amendments to the Principal Rules are made under subsection 85GB(1) of the Family Assistance Act.

The Amendment Rules prescribe two payment for the purpose of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act, which are not deducted for the purpose of determining the amount of an individual’s hourly session fee, when determining the hourly rate of Child Care Subsidy the individual is entitled to. Such prescribed payments can partially or wholly cover the co-contribution amount that would otherwise be payable by those individuals.

The payments prescribed by the Amendment Rules provide relief to families who are residents of bushfire affected areas; and to families of volunteer fire fighters actively involved in fighting bushfires.

The payments for the benefit of bushfire affected families are available for a 12 month period commencing on 1 December 2019. The payments for the benefit of families of volunteer fire fighters are available for a 3 month period commencing on 1 December 2019. The payments may be made by State or Territory, an authority of a State or Territory or a registered charity. However, the payments cannot be made by a child care provider or by a registered charity that is an associate of a child care provider to families attending care at that child care provider.

Human rights implications

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 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the CRC.

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 States 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.

The payments prescribed by the Amendment Rules provide relief to families affected by bushfires, as well as to families of volunteer fire fighters actively involved in fighting bushfires. This will better enable parents, in financial difficulty as a result of bushfires or as a result of volunteering as a fire fighter which might impact on their ability to engage in paid work, to continue to place their children in child care, enabling these children to continue to access the social and educational benefits from that experience.

This promotes the rights of the child 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.

As the payments prescribed through the Amendment Rules provide relief to families affected by bushfires, and to families of volunteer fire fighters actively involved in fighting bushfires, this will better enable these parents to continue to afford the costs of child care, which will further their capacity to engage in work, study, training and other activities that promote workplace participation and engagement.

Right to equality and non-discrimination

The Amendment Rules support the purpose and ethos of Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the CRC, which is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons.

In particular, Article 2 of the CRC provides that every child has the right to equal treatment, without discrimination of any kind, irrespective of the social origin, property, disability, birth or other status of the child or the child’s parents or guardian.

Article 2 of the ICCPR provides that States Parties must undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR, without distinction of any kind, such as social origin, birth or other status.

Article 16 of the ICCPR requires that everybody shall have the right to recognition everywhere as a person before the law.

Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, States Parties are required to ensure that the law prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as social origin, birth or other status.

This amendment assists parents, whose financial situation might be adversely impacted by the bushfires – whether through being in a bushfire affected area or volunteering a fire fighters – to continue to be able to afford to pay for their children to access quality education and care. This facilitates an equal opportunity to access quality education and care arrangements for such children. It is noted that the application of this payment is time limited from 1 December 2019 for a 12 and 3 month period respectively, a period of time selected to cover the impact of bushfires and the recovery period after bushfires. This means that other parents will not be discriminated against, as the focus and duration of this benefit has been time limited.

Conclusion

The Amendment Rules are compatible with human rights. By prescribing a payment in the Principal Rules for the purpose of subclause 2(2A) of Schedule 2 to the Family Assistance Act, which benefits individuals impacted by the bushfires, the measures in the Amendment Rules advance human rights under the CRC, ICESCR and ICCPR .

 

Dan Tehan

Minister for Education