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Rules/Other as made
This instrument amends the Child Care Subsidy Minister’s Rules 2017 to prescribe classes of children and circumstances to increase access to Additional Child Care Subsidy (ACCS) (child wellbeing) for vulnerable families in need of extra support.
Administered by: Education, Skills and Employment
Registered 30 Jun 2021
Tabling HistoryDate
Tabled HR03-Aug-2021
Tabled Senate03-Aug-2021
Date of repeal 19 Oct 2021
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Education and Youth

A New Tax System (Family Assistance) Act 1999

Child Care Subsidy Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Minister’s Rules 2021

AUTHORITY

The Child Care Subsidy Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Minister’s Rules 2021 (Amendment Rules) are made under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) as construed in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (Acts Interpretation Act).

Under subsection 33(3) of the Acts Interpretation Act, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

PURPOSE AND OPERATION

The Amendment Rules amend the Child Care Subsidy Minister’s Rules 2017 (Principal Rules) to prescribe classes of children and circumstances to increase access to Additional Child Care Subsidy (ACCS) (child wellbeing) for vulnerable families in need of extra support.

The Amendment Rules support the operation of the Family Assistance Legislation Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Act 2020, which received royal assent on 7 September 2020 and the Family Assistance Legislation Amendment (Early Childhood Education and Care Coronavirus Response and Other Measures) Act 2021, which received royal assent on 26 March 2021 (together, the Amendment Acts). The Amendment Acts made changes to ACCS (child wellbeing) to improve assistance to vulnerable and disadvantaged families. This was in response to feedback from the child care sector regarding access to ACCS (child wellbeing). In particular, the changes were intended to ensure that children who are at risk of serious neglect or abuse, such as children in foster care, can access continuity of child care without delays while the foster family works out its child care subsidy (CCS) eligibility.

The changes made by the Amendment Acts included expanding a provider’s eligibility for ACCS (child wellbeing) to include where a child is a member of a class to be prescribed by the Minister’s Rules. The changes  also expanded the period for which an ACCS (child wellbeing) determination may be in place to up to 52 weeks, in certain circumstances to be prescribed by the Minister’s Rules, and allowed ACCS (child wellbeing) certificates and determinations to be backdated by up to 13 weeks in exceptional circumstances to be prescribed by Minister’s Rules.

The Amendment Rules prescribe the relevant classes of children and circumstances associated with eligibility for ACCS (child wellbeing), and when ACCS (child wellbeing) certificates and determinations may be extended or backdated, as specified in the Amendment Acts.

The Amendment Rules also insert a cap on the appropriation set out in section 233 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) for payments made under the Community Child Care Fund (CCCF) Special circumstances Grant Opportunity program for the 2021-22 financial year.

REGULATORY IMPACT

The Office of Best Practice Regulation (OBPR) was consulted in the development of these amendments and has confirmed that a Regulation Impact Statement is not required (OBPR ref no. 25989). OBPR advised it considers the regulatory impact to be minimal.

COMMENCEMENT

Sections 1 to 4 of the Amendment Rules will commence on the day after registration.

Part 1 of Schedule 1 to the Amendment Rules will commence immediately after the relevant amendments made by Part 4 of Schedule 1 of the Family Assistance Legislation Amendment (Early Childhood Education and Care Coronavirus Response and Other Measures) Act 2021commence (being 1 July 2021), or on the day after the instrument is registered, whichever is later.

Part 2 of Schedule 1 to these Amendment Rules will commence on 1 July 2021.

CONSULTATION

The Department of Education, Skills and Employment (the Department) consulted with stakeholders in the early childhood education and care sector through the Early Childhood Education and Care Reference Group (ECECRG) ACCS Sub-working Group. The ACCS Sub‑working Group consists of a variety of peak bodies and providers supported by the members of the ECECRG. The ACCS Sub-working Group were supportive of the measure and their feedback is reflected in the Amendment Rules.


 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Child Care Subsidy Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Minister’s Rules 2021

The Child Care Subsidy Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Minister’s Rules 2021 (the Amendment Rules) are 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 Amendment Rules provide additional support for children from vulnerable and disadvantaged families to attend child care, to ensure they can access continuous care. They achieve this by expanding eligibility for Additional Child Care Subsidy (ACCS) (child wellbeing), by making providers eligible to receive ACCS (child wellbeing) for children in foster care arrangements, and prescribing circumstances under which ACCS (child wellbeing) can be accessed for a longer period, or backdated by a longer period, than previously available under the family assistance law.  

The Amendment Rules also insert a cap on the appropriation in section 233 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) for payments under the Community Child Care Fund (CCCF) Special circumstances Grant Opportunity program for the 2021-22 financial year.

Human rights implications

The Amendment Rules engage the following human rights:

·         Article 3 of the Convention on the Rights of the Child (CRC), which recognises that in all actions concerning children, the best interests of the child shall be a primary consideration.

·         Article 18 of the CRC, which requires that appropriate measures be taken to ensure that children of working parents have the right to benefit from child care services and facilities for which they are eligible.

·         Article 19 of the CRC, which requires that appropriate legislative, administrative, social and educational measures be taken to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, including social programmes to provide necessary support for the child and for those who have the care of the child.

·         Article 20 of the CRC, which provides that a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance.

Article 3 of the CRC

Article 3 of the CRC recognises that in all actions concerning children, the best interests of the child shall be a primary consideration.

These Amendment Rules will promote the best interests of children by ensuring that they have continuous access to, and remain enrolled in, quality child care, particularly when they are in foster care and may be in a position where they are transitioning between different carers and households.

Article 18 of the CRC

Article 18 of the CRC, and in particular, paragraph 3, requires that state parties take 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 Amendment Rules promote this right by expanding access to ACCS (child wellbeing), which provides financial support for families using child care. While the focus for certain parts of the Amendment Rules is children in foster care, other parts of the rules will also benefit children who are at risk but still in the care of their parents, including working parents. For example, the Amendment Rules allow ACCS (child wellbeing) support to be backdated for up to 13 weeks where an eligible individual, usually a parent, is affected by domestic or family violence. This will benefit certain working families in making it easier for them to access child care services.

Article 19 of the CRC

Article 19 of the CRC requires state parties to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parents, legal guardians, or any other person who has the care of the child. Paragraph 2 states that these measures should include the establishment of social programmes to provide necessary support for the child.

The Amendment Rules promote this right by providing additional support for child care for children who are “at risk”, including children in foster care and children under a protection order. Ensuring that vulnerable children have access to continuous child care provides support, protection and quality care for the child at times when they may otherwise have been at risk of violence, abuse, or neglect.   

Article 20 of the CRC

Article 20 of the CRC recognises that a child temporarily or permanently deprived of his or her family environment, or in whose best interest cannot be allowed to remain in that environment, is entitled to special protection and assistance provided by the state. Paragraph 2 requires state parties to ensure alternative care for such a child.

To that end, the Amendment Rules provide further support for foster children and children who are under a protection order, by increasing the amount of time an ACCS (child wellbeing) certificate or determination may be in effect for such a child. They also provide further support by ensuring that child care providers can be eligible to receive ACCS (child wellbeing) for foster children. This will ensure the children have continuous access to quality child care, even when they have just transitioned to a new foster family who has not yet determined its eligibility to receive child care subsidy.

Conclusion

The Instrument is compatible with human rights because it advances the protection of human rights.

 

Minister for Education and Youth, Alan Tudge


Child Care Subsidy Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Minister’s Rules 2021

EXPLANATION OF PROVISIONS

Section 1 Name

1. This is a formal provision specifying the name of the instrument.

Section 2 Commencement

2. This provision provides that sections 1 to 4 of the Amendment Rules commence on the day after the instrument is registered.

3. It provides that Schedule 1, Part 1, which implements changes to ACCS (child wellbeing), commences on the later of:

a.      Immediately after the Amendment Acts commence, and

b.      The day after the instrument is registered.

4. It also provides that Schedule 1, Part 2 commences on 1 July 2021.

5. The amendments referred to in paragraph 3(a) (above) commence on 1 July 2021.

Section 3 Authority

6. This provision provides that the Amendment Rules are made under subsection 85GB(1) of the Family Assistance Act, which allows the Minister to make rules required or permitted to be prescribed by either the Family Assistance Act or the Family Assistance Administration Act. .

Section 4 Title of Section

7. This section provides that the Principal Rules are amended as set out in the Schedule to the Amendment Rules. 

SCHEDULE 1 – Amendments

Part 1—ACCS (child wellbeing) amendments

Item 1

8. This item specifies, for the purposes of the definition section, that the term “in a formal foster care arrangement”, as used in the Amendment Rules, has the meaning given by new section 8E.

Item 2

9. This item introduces into section 4 a new definition for the term “long term protection order”. It provides that a long term protection order is a final protection or welfare order made under a law of a state or territory that gives responsibility in relation to the parental or care responsibility for or supervision of the child or young person to an authority, such as a Minister, a government department or statutory authority, an office holder in a department or statutory authority, an organisation or the chief executive of an organisation.

10. Each state and territory has enacted legislation in relation to child welfare, and each piece of child welfare legislation allows an order to be made for the protection of children by placing them under the responsibility of a particular authority. However, different terminology is used for such an order across jurisdictions and the relevant authority is different in each state or territory. The intent of this definition is to capture any order that can be made under state or territory legislation where the order is more than a temporary, short term order, and where the order gives parental or care responsibility to an authority.

Item 3

11. This item inserts a new Division 1B to Part 2 into the Principal Rules. The new division includes a new section 8E will prescribe a class of children for the purposes of s 85CA(2)(b)(ii) of the Family Assistance Act, which provides that in limited circumstances, approved child care providers may be eligible to receive ACCS (child wellbeing) for the children in their care.

12. The class of children prescribed by section 8E is the class of children who are in a formal foster care arrangement (the definition introduced by item 1). The policy rationale for making approved providers eligible to receive ACCS (child wellbeing) for children in formal foster care arrangements is that when a child moves to a new foster home, it can take some time for all the necessary arrangements to be in place, including for the foster family to establish whether it is eligible for CCS. Foster children are already in a vulnerable situation, and this delay may cause disruption to the flow of subsidy to support their access to child care. By making providers eligible, children in foster care arrangements will have continuous access to child care. This will reduce the likelihood of gaps in the provision of child care assistance to these children, and reduce the likelihood of foster carers incurring debts to providers while they are in the process of establishing eligibility for, and claiming, CCS. It is expected that the provider will work with the foster family to ensure a CCS eligible person is identified and a complying written agreement is in place with that person before the provider’s eligibility expires. Under subsection 85CE(5A) of the Family Assistance Act as amended by the Amendment Acts, a provider can be eligible under a combination of a certificate and one or more determinations for a maximum of 13 weeks.

13. New subsection 8E(2) provides a definition for the term “in a formal foster care arrangement”. It provides that a child will be “in a formal foster care arrangement” if the child is being cared for on a temporary basis, by a person other than the child’s parents, on a residential basis in premises other than the child’s home, where the child has been placed in that care by an authority with parental responsibility for the child, under a Court or Tribunal order for temporary care arrangements, or under an agreement recognised by state or territory legislation for the purpose of placing the child in care. However, it does not include care provided at premises that are managed by professional staff whose duties are to care for the child and other children – commonly known as “residential care”.

14. This is intended to be a broad definition encompassing most kinds of temporary care arrangements that occur when a child is under the care of the state. For example, it is intended to cover kinship care as well as traditional foster care. Kinship care is similar to foster care but relates to a situation where the child is placed with a relative or family friend. However, adoption or orders for a child to be permanently cared for by a particular individual are not intended to be covered.

15. There are a number of ways that a child can be placed in foster care under state and territory legislation. One way is that the child can be placed under the responsibility of an authority, such as the Chief Executive of the relevant department, who then places the child in foster care. In other jurisdictions, the child can be placed in foster care under the order of a court or tribunal, such as in New South Wales, where a child may be placed in out of home care by an order of the Children’s Court. In some jurisdictions, such as Victoria, there are provisions for a child to be placed in out of home care by agreement between a representative of the state and the child’s parent/s. The definition used for “in a formal foster care arrangement” is intended to encompass all the possible ways that a child may be placed in foster care.

Item 4

16. This item introduces new paragraph 10(i) into the Principal Rules. New paragraph 10(i) expands the range of instances when a child will be taken to be “at risk” for the purposes of ACCS (child wellbeing), to include when a child is in a formal foster care arrangement. While in many cases, a child will be placed in foster care because one of paragraphs 10(a) to 10(h) apply, it is also possible for a child to be placed in foster care where there is no formal finding that the child is “in need of care” or similar under state or territory law. For example, in Victoria, a child can be placed in care through a short-term child care agreement between the parent and a representative of the state. New paragraph 10(i) will ensure that foster children are deemed to be “at risk” and therefore automatically eligible for ACCS (child wellbeing).

Item 5

17. This item introduces new Division 2A into Part 2 of the Principal Rules. Division 2A prescribes circumstances relevant to ACCS (child wellbeing) certificates and determinations.

18. New section 11A prescribes exceptional circumstances for the purpose of backdating ACCS (child wellbeing) certificates and determinations to a period of greater than 28 days, but no more than 13 weeks. Under the Family Assistance Act, a person can only receive ACCS (child wellbeing) if there is either a certificate in place, issued by the approved child care provider, or there is a determination from the Secretary in place. Before the Amendment Acts took effect, certificates and determinations could be backdated by a period of up to 28 days. New section 11A will allow both certificates and determinations to be backdated by more than 28 days, but no more than 13 weeks, if any of the prescribed exceptional circumstances apply.

19. The prescribed circumstances are where the eligible individual, their partner or the child is affected by domestic or family violence; where the eligible individual their partner, or a child of the family is experiencing serious illness, a medical condition, or hospitalisation preventing the individual or their partner from working or caring for their child; where the eligible individual, their partner or a child of the family is experiencing serious mental health issues that prevent the individual from working or caring for their child; or where a long term protection order (as defined by item 2 of the Schedule) is in place in respect of the child.

20. These circumstances are intended to be circumstances which are beyond the provider’s control, and which may cause a significant delay in the amount of time taken for the eligible individual to prepare the documentation needed to support an application for a certificate or determination. These exceptional circumstances recognise that when a family is experiencing significant hardship, for example, domestic or family violence or a serious illness, it is difficult for them to meet administrative requirements such as preparing documentation to support an application. This change will ensure that children of such families are able to access continuous care through these difficult periods, and that application requirements do not impede their access to such care when it is most needed.

21. New section 11B prescribes circumstances for extending the maximum period when an ACCS (child wellbeing) certificate and/or determination can be in place. Previously, the total period for which a determination could be in place was 13 weeks, in all cases. However, new section 11B has the effect that if the child is a formal foster care arrangement or a long term protection order is in place for that child, the total period may be up to 52 weeks.

22. The rationale for this change is that children in formal foster care arrangements or who are under long term protection orders are particularly vulnerable and in most need of stable, continuous care arrangements. This change will ensure that they are given the support of continuous child care arrangements.  This change will also reduce the administrative burden on providers. Rather than needing to apply for a separate determination every 13 weeks, they will be able to apply for a single determination for a 52 week period, where a child is in foster care or under a long term protection order. This recognises that children are often in foster care for extended periods of time. 

Item 6

23. This item introduces a new item into the table in section 55 of the Principal Rules. The table sets out certain matters that approved providers must notify to the Secretary. New item 21 of this table will require approved providers to notify the Secretary of any change in relation to a formal foster care arrangement or long term protection order applying to a child within 7 days of the provider becoming aware of the change.

24. This item will ensure that the Secretary is kept aware of any foster care arrangements or protection orders in place in respect of the child, so ACCS (child wellbeing) certificates and determinations can be monitored and are only in place where they are needed.

Part 2—Amendments commencing on 1 July 2021

Item 7

25. Subsection 233(1) of the Family Assistance Administration Act generally provides that payments made under the family assistance law are supported by special appropriation. However, subsection 233(2) expressly excludes from the special appropriation any grant payments made under section 85GA of the Family Assistance Act, unless those grant payments are prescribed in the Principal Rules.

26. Section 78 of the Principal Rules currently prescribes payments made for the purposes of an agreement under the Community Child Care Fund Special Circumstances Grant Opportunity (CCCF-SC Grant Opportunity) for the purposes of subsection 233(2). That is, payments under such agreements are supported by the standing appropriation in subsection 233(1) of the Family Assistance Administration Act.

27. Subsection 233(3) provides that if any grant payments are prescribed in the Principal Rules in accordance with subsection 233(2) of the Family Assistance Administration Act, the Minister must also prescribe the total amount that may be paid by special appropriation in respect of a financial year for all of those grant payments.

28. Subsection 233(5) provides that the Minister may also prescribe the total amount that may be paid in respect of a specific grant payments prescribed by the Minister’s Rules.

29. Item 7 amends section 78 of the Principal Rules from 1 July 2021 to give effect to the legislative provisions listed above. Item 7 inserts new subsection 78(3) and (4) into the Principal Rules.

30. Subsection 78(3) provides that for subsection 233(3) of the Family Assistance Administration Act, the total amount that may be paid for prescribed grant purposes in respect of 2021-22 is $4 million.

31. Subsection 78(4) provides that for subsection 233(5) of the Family Assistance Administration Act, the total amount that may be paid for the CCCF-SC Grant Opportunity in respect of 2021-22 is $4 million.

32. The figures in subsections 78(3) and 78(4) are the same because the CCCF-SC Grant Opportunity is the only grant program to be prescribed under subsection 233(2) of the Family Assistance Administration Act.