Commonwealth Consolidated Acts

FAMILY ASSISTANCE LEGISLATION AMENDMENT (CHILD CARE MANAGEMENT SYSTEM AND OTHER MEASURES) ACT 2007 - SCHEDULE 3

Part   1 -- Amendments

A New Tax System (Family Assistance) Act 1999

1   After subsection 18(1)

Insert:

  (1A)   A child is taken to be a school child for the purposes of the Act if the child has reached 6 years of age, unless an individual who is:

  (a)   conditionally eligible under section   42 for child care benefit by fee reduction for a session of care provided to the child; or

  (b)   eligible for child care benefit (by fee reduction or otherwise) for a session of care provided to the child;

notifies the Secretary in the manner required by the Secretary that the child does not satisfy the criterion in subsection   (1).

2   Paragraph 50(1)(b)

Omit "section   200 of".

A New Tax System (Family Assistance) (Administration) Act 1999

3   Paragraph 62(1)(b)

Repeal the paragraph, substitute:

  (b)   the Secretary:

  (i)   in order to make a decision about the conditional eligibility at any time; or

  (ii)   in order to make a decision about the claimant's eligibility for child care benefit by fee reduction under section   43 of the Family Assistance Act at any time; or

  (iii)   in relation to a matter referred to in subsection 154(5) of this Act;

    requires the claimant, or the claimant's partner, under Division   1 of Part   6 of this Act, to give information or produce documents; and

Note:   The heading to section   62 is altered by adding at the end " etc. ".

4   After paragraph 104(1)(b)

Insert:

  (ba)   a decision to give a person a notice under section   204A; or

5   After paragraph 108(2)(c)

Insert:

  (ca)   a decision to give a person a notice under section   204A; or

6   Subsection 109D(6) (definition of excepted decision )

Add at the end:

  ; or (c)   a decision of a kind mentioned in subsection 144(1) (decisions in relation to child care services and registered carers).

7   After section   109D

Insert:

109DA   Review applications--time limits applicable to decisions in relation to child care services and registered carers

    An application for review under subsection 109A(1) of a decision of a kind mentioned in subsection 144(1) (decisions in relation to child care services and registered carers) must be made no later than 28 days after the applicant is notified of the decision.

8   Subsection 111(2)

After "apply for review under subsection   (1)", insert "or (1A)".

9   At the end of subsection 111(2)

Add:

  ; (h)   a decision to make a determination under subsection 57(1) of the Family Assistance Act (determination that an approved child care service is a sole provider).

10   Before subsection 144(1)

Insert:

  (1A)   If:

  (a)   a decision of a kind mentioned in subsection   (1) (decisions in relation to child care services and registered carers) has been reviewed under section   109A; and

  (b)   the decision has been affirmed, varied or set aside and substituted by the Secretary or an authorised review officer under subsection 109A(2);

application may also be made to the AAT for the review of the decision.

  (1B)   For the purposes of subsection   (1A), the decision made by the Secretary or authorised review officer is taken to be:

  (a)   where the Secretary or authorised review officer affirms a decision--that decision as affirmed; and

  (b)   where the Secretary or authorised review officer varies a decision--that decision as varied; and

  (c)   where the Secretary or authorised review officer sets a decision aside and substitutes a new decision--the new decision.

  (1C)   If a decision of a kind mentioned in subsection   (1) (decisions in relation to child care services and registered carers) has been made by the Secretary personally, or by another agency head himself or herself in the exercise of a delegated power, application may also be made to the AAT for the review of the decision.

11   Subsection 144(1)

Omit "Application may also be made to the AAT for review of the following decisions", substitute "Each of the following is a decision in relation to which an application may be made under subsection   (1A) or (1C)".

12   After paragraph 144(1)(d)

Insert:

  (da)   a decision under subsection 201A(1) to suspend the approval of an approved child care service from a particular day;

  (db)   a decision under subsection 201A(3) to revoke the suspension of the approval of an approved child care service from a particular day;

13   Subsection 153(2)

After "document", insert "or records".

14   At the end of subsection 154(5)

Add:

  ; or (e)   the records that a person is required to keep under section   219G.

15   After subsection 154(5)

Insert:

  (5A)   The Secretary may require a person who is required to keep records under section   219G to produce to a specified agency such of those records as are specified in the notice given to the person under section   158.

16   Subparagraphs 158(2)(b)(i) and (ii)

After "document", insert "or records".

17   Subparagraph 158(2)(b)(iii)

Omit "or the document is to be produced", substitute ", the document is to be produced or the records are to be produced".

18   Subsection 159(1)

After "document", insert "or records".

19   Paragraph 160(b)

After "document", insert "or records".

20   Paragraph 195(2)(b)

Omit "either", substitute "any".

21   After subparagraph 195(2)(b)(i)

Insert:

  (ia)   the Secretary suspended the approval of the service under section   201A;

  (ib)   the Secretary suspended the approval of the service under section   219TSQ;

22   Subsection 195(4)

Repeal the subsection, substitute:

  (4)   For the purposes of paragraph   (3)(b), the day from which the approval is expressed to operate:

  (a)   may be a day before the day the Secretary approves the service; but

  (b)   must not be a day that is earlier than 6 months before the day on which the application for the approval was made.

23   Subsection 200(2)

Add at the end "The notice must specify the day, no earlier than the day on which the notice is given, on which the sanction takes effect.".

24   After section   201

Insert:

201A   Immediate suspension for certain breaches

  (1)   The Secretary may, by notice given to an approved child care service, suspend the approval of the service if the Secretary reasonably believes that:

  (a)   the service is not complying with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the service is situated, relating to child care; or

  (b)   there is an imminent threat to the health or safety of a child, or children, because of the care provided by the service to the child or children; or

  (c)   due to urgent circumstances, it is no longer appropriate for the service to provide child care.

  (2)   The Secretary must, in the notice:

  (a)   specify a day, not earlier than the day on which the notice is given, on which the suspension is to take effect; and

  (b)   specify the grounds upon which the Secretary has suspended the service's approval; and

  (c)   inform the service of its rights under this Act to seek a review of the decision to suspend the service's approval.

  (3)   If the Secretary suspends the approval of an approved child care service, the Secretary may at any time, by notice to the service, revoke the suspension with effect from the day specified in the notice.

25   After section   204

Insert:

204A   Notifying individuals about effect on entitlement to child care benefit of actions by approved child care services

Breach of conditions by approved child care service

  (1)   If the Secretary is satisfied that an approved child care service:

  (a)   has not complied with a condition for the continued approval of the service; or

  (b)   is not complying with a condition for the continued approval of the service;

the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected if the Secretary were to suspend or cancel the service's approval because of the Secretary being so satisfied.

  (2)   A notice under subsection   (1) must:

  (a)   state that the Secretary is satisfied that the service has not complied, or is not complying, with a condition for the continued approval of the service; and

  (b)   set out the effect on that entitlement if the Secretary were to suspend or cancel the service's approval because of the Secretary being so satisfied.

A notice under subsection   (1) may set out any other information that the Secretary thinks relevant.

Suspension or cancellation of approved child care service's approval

  (3)   If the Secretary suspends or cancels an approved child care service's approval, the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected because of the suspension or cancellation.

  (4)   A notice under subsection   (3) must:

  (a)   state that the Secretary has suspended or cancelled the service's approval; and

  (b)   set out the effect on that entitlement because of the suspension or cancellation.

A notice under subsection   (3) may set out any other information that the Secretary thinks relevant.

Form and manner or way of notice

  (5)   A notice under this section must be in the form, and in the manner or way, approved by the Secretary.

26   After subsection 219A(1)

Insert:

  (1A)   If the service becomes aware that the individual is eligible to receive Jobs Education and Training (JET) Child Care fee assistance in relation to a session of care provided by the service to the child, the service must ensure that the fees set for the session do not exceed the amount of the fees that the service would charge an individual who was not eligible for that assistance for the same session for the same child.

Penalty:   60 penalty units.

  (1B)   In subsection   (1A):

"Jobs Education and Training (JET) Child Care fee assistance" means the payment of that name that is paid by the Commonwealth.

Note:   The heading to section   219A is altered by adding at the end " etc. ".

27   Paragraphs 219A(2)(a) and (b)

Omit "6", substitute "7".

28   Subsection 219A(2) (table items   2 and 3, at the end of column 2)

Add "The service must also ensure that the fees set for a session for which the service reduces fees under this item do not exceed the amount of the fees that the service would charge an individual who was not eligible for the fee reductions for the same session for the same child.".

29   Subsection 219A(3)

Omit "Subsection   (2) is an offence", substitute "Subsections   (1A) and (2) are offences".

30   After paragraph 219B(1)(c)

Insert:

  ; and (d)   ensure that the fees set for a session for which the service is required to reduce fees under this subsection do not exceed the amount of the fees that the service would charge an individual for the same session for the same child if the service was not so eligible.

31   Subsection 219D(1)

Repeal the subsection, substitute:

  (1)   If an approved child care service:

  (a)   receives notice under this Act that the service's approval has been suspended; or

  (b)   receives notice under subsection 200(2) that the service's approval has been cancelled;

the service must cease to reduce fees as provided for in sections   219A and 219B for sessions of care the service provides on or after the day on which the sanction takes effect.

32   Subsection 219D(2)

Omit "under subsection 200(3)".

33   At the end of section   219G

Add:

Notification of premises at which records are kept

  (3)   The person must notify the Secretary in writing, within the period of 14 days beginning on the day after the cessation day, of the premises at which the records are kept on the day after the cessation day.

Penalty:   60 penalty units.

  (4)   If the premises at which the records are kept changes during the period:

  (a)   beginning on the day after the cessation day; and

  (b)   ending on the last day the person is required to keep the records under subsection   (1);

the person must notify the Secretary in writing of the new premises within the period of 14 days beginning on the day the records begin to be kept at the new premises.

Penalty:   60 penalty units.

  (5)   In subsections   (3) and (4):

"cessation day" means the day the service ceased to be an approved child care service.

  (6)   Subsections   (3) and (4) are offences of strict liability.

34   Paragraph 219K(1)(b)

Repeal the paragraph, substitute:

  (b)   in the case of records referred to in subsection 219G(2)--the premises last notified under section   219G in respect of the records at any reasonable time of a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

35   After section   221

Insert:

221A   Committees

  (1)   The Minister may in writing establish committees for the purposes of the family assistance law.

Functions

  (2)   A committee has the functions determined in writing by the Minister.

  (3)   A committee must, in performing its functions, comply with any directions given to the committee by the Minister.

Appointments

  (4)   A committee consists of the members appointed in writing by the Minister.

  (5)   A member of a committee holds office on a part - time basis.

Chair

  (6)   The Minister may designate a member of a committee as the Chair of the committee.

Remuneration and allowances

  (7)   A member of a committee is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.

  (8)   A member of a committee is to be paid the allowances that are prescribed by the regulations.

  (9)   Subsections   (7) and (8) have effect subject to the Remuneration Tribunal Act 1973 .

Disclosure of interests

  (10)   A member of a committee must give written notice to the Minister of any direct or indirect pecuniary interest that the member has or acquires and that conflicts or could conflict with the proper performance of the member's functions.

Resignation

  (11)   A member of a committee may resign his or her appointment by giving the Minister a written resignation.

Termination

  (12)   The Minister may at any time terminate the appointment of a member of a committee.

36   After section   224

Insert:

224A   Notice of decisions under Part   8

  (1)   If a notice of a decision of an officer under Part   8 is:

  (a)   left at the address of the place of business of a child care service last known to the Secretary; or

  (b)   sent by prepaid post to the address of a child care service last known to the Secretary; or

  (c)   sent by email to the last known email address of the child care service;

notice of the decision is taken, for the purposes of the family assistance law, to have been given to the service.

  (2)   Notice of a decision of an officer under Part   8 may be given to a service by properly addressing, prepaying and posting the document as a letter.

  (3)   If notice of a decision is given in accordance with subsection   (2), notice of the decision is taken to have been given to the service at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.

37   Subsection 231(2)

Omit "The", substitute "Subject to subsection   (2A), the".

38   After subsection 231(2)

Insert:

  (2A)   If:

  (a)   an unincorporated body or association is operating an approved child care service; and

  (b)   a debt becomes due to the Commonwealth by the service under Part   4;

then subsection   (2) does not apply in relation to the debt and the debt is taken to be a debt owed by the service.

Note:   One of the effects of this subsection is that subsection 82(2) rather than subsection 82(1) will apply to the debt. Subsection 82(2) provides more ways of recovering debts than subsection 82(1) (for example, setting off debts against advances is permissible).

Part   2 -- Application provisions

39   Application of items   6 to 11

The amendments made by items   6 to 11 of this Schedule apply in relation to decisions made after the commencement of those items.

40   Application of items   14 and 15

The amendments made by items   14 and 15 apply in relation to a requirement to keep records that arose before or after the commencement of those items.

41   Application of item   22

The amendment made by item   22 applies in relation to applications for approvals that are made after the commencement of that item.

42   Application of items   23 and 31

The amendments made by items   23 and 31 of this Schedule apply in relation to notices given on or after the commencement of those items.

43   Application of item   25

(1)   Subsection 204A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 , as inserted by item   25, applies in relation to non - compliance with conditions that occurs before or after the commencement of that item.

(2)   Subsection 204A(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 , as inserted by item   25, applies in relation to suspensions or cancellations that occur before or after the commencement of that item.

44   Application of items   26, 28 and 30

The amendments made by items   26, 28 and 30 apply in relation to sessions of care provided after the commencement of those items.

45   Application of items   33 and 34

The amendments made by items   33 and 34 apply in relation to services that cease to be approved child care services after the commencement of those items.

46   Application of item   36

The amendment made by item   36 applies to an attempt to give notice of a decision that takes place on or after the commencement of that item.

47   Application of items   37 and 38

The amendments made by items   37 and 38 apply in relation to debts that become due to the Commonwealth after the commencement of those items.

Notes to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007

Note 1

The Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 as shown in this compilation comprises Act No.   1 18 , 200 7 amended as indicated in the Tables below.

For all relevant information pertaining to application, saving or transitional provisions see Table   A.

The Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 ( No.   1 18 , 2007 ) was modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009 (SLI 2009 No. 82) see Table B.

Table of Acts

(a)   Subsection 2(1) (item   3 ) of the Family Assistance and Other Legislation Amendment (Child Care and Other Measures) Act 2011 provides as follows:

  (1)   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

(b )   Subsection 2(1) (item s 25 , 27 and 32 ) of the Family Assistance Legislation Amendment (Child Care Rebate) Act 2011 provides as follows:

  (1)   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

(c )   Subsection 2(1) (item 4 ) of the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 provides as follows:

  (1)   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Table of Amendments

Table A

Application, saving or transitional provisions

Family Assistance Legislation Amendment (Child Care) Act 2010
(No. 34, 2010)

Schedule 5

8   Comparisons of amounts of advances and amounts passed on

(1)   This item applies if, before the commencement of this item, an officer (within the meaning of the Family Assistance Administration Act) did either or both of the following without authority from the Secretary:

  (a)   compared the amounts described in subitem   (2) of item   97, or of item   97A, of Schedule   1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 ;

  (b)   gave notice purporting to be notice of:

  (i)   a debt arising under subitem   (4) of item   97, or of item   97A, of that Schedule; or

  (ii)   a payment under subitem   (5) of item   97, or of item   97A, of that Schedule.

(2)   Whichever of those items is relevant applies, and is taken always to have applied, in relation to what the officer did as if it had been done by the Secretary.

(3)   In this item:

item   97A of Schedule   1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 means item   97A of that Schedule as modified by the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009 as in force at the commencement of this definition.

Schedule 6

2   Application

The amendment made by item   1 applies in relation to payments made on or after the commencement of that item.

Table B

Modifications

Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Regulations 2009 (SLI 2009 No. 82)

Part 2   Transitional arrangements relating to the Amendment Act

2.1   Modification of Amendment Act   -- children already enrolled on application day (item 94)

  (1)   For item 101 of Schedule 1 to the Amendment Act, item 94 of that Schedule is modified in relation to the amendments made by the Amendment Act as set out in this regulation.

  (2)   Item 94 applies as if the words in paragraph (a):

    "the service must give the Secretary notice"

    read:

    "it is a condition for the continued approval of the service that the service give the Secretary notice".

2.2   Modification of Amendment Act   -- obligation to give reports to Secretary for sessions of care before application day (item 96)

  (1)   For item 101 of Schedule 1 to the Amendment Act, item 96 of that Schedule is modified in relation to the amendments made by the Amendment Act as set out in this regulation.

  (2)   Item 96 applies as if the words:

    "the service must comply with section 219N"

    read:

    "it is a condition for the continued approval of the service that the service comply with section 219N".

2.3   Modification of Amendment Act   -- acquittal of advances (item 97)

  (1)   For item 101 of Schedule 1 to the Amendment Act, item 97 of that Schedule is modified in relation to the amendments made by the Amendment Act as set out in this regulation.

  (2)   Item 97 applies as if subitem 97 (1) read:

  "(1)   This item applies to each of the following periods (a relevant period ) in relation to an approved child care service:

  (a)   a reporting period ending before the application day for the service, if at the closing day there has not been an acquittal under section 219S of the Family Assistance Administration Act, as in force immediately before the commencement of this Schedule, of advances paid in respect of the period; and

  (b)   for the reporting period in which the application day for the service falls   -- so much of the reporting period as falls before the application day.".

  (3)   Item 97 applies as if paragraph 97 (4) (b) read:

  "(b)   the debt is taken to meet the definitions of debt in subsection 82   (3) and section 94 of the Family Assistance Administration Act.".

  (4)   Item 97 applies as if the following subitem were inserted after subitem 97 (5):

  "(5A)   A payment under subitem (5) is a family assistance payment for the purposes of section 93A of the Family Assistance Administration Act.".

2.4   Modification of Amendment Act   -- adjustment of acquittal of advances (Schedule 1)

  (1)   For item 101 of Schedule 1 to the Amendment Act, Schedule 1 to that Act is modified in relation to the amendments made by the Amendment Act as set out in this regulation.

  (2)   Schedule 1 applies as if the following item were inserted after item 97:

  "97A   Adjustment of the acquittal of advances

  (1)   This item applies to a period (a relevant period ) in relation to an approved child care service if:

  (a)   there has been an acquittal in respect of the period under:

  (i)   section 219S of the Family Assistance Administration Act as in force immediately before the commencement of this Schedule; or

  (ii)   item 97; and

  (b)   any of the following then happens within 2   years after the application day for the approved child care service:

  (i)   the service provides a report for the period under subsection 219N (1) of the Family Assistance Administration Act, as in force before the commencement of this Schedule;

  (ii)   the service corrects a report for the period under subsection 219N (6) of that Act, as in force immediately before the commencement of this Schedule;

  (iii)   the service provides or corrects a report for the period under item 96;

  (iv)   the Secretary otherwise believes that the difference between the amount of the advance paid in respect of the period and the amount passed on by the service in reduced fees during the period may have been worked out incorrectly.

Note       An acquittal may have occurred under item 97 before the service provided a report for the period, if the Secretary made an assumption mentioned in subitem 97 (3).

  (2)   The Secretary may compare the amount of the advance determined by the Secretary under section   219Q of the Family Assistance Administration Act, as in force immediately before the commencement of this Schedule, in respect of the service and the relevant period with the amount passed on by the service in reduced fees during that period, in compliance with sections 219A and 219B of that Act, as in force immediately before commencement of this Schedule.

  (3)   If the Secretary decides to compare the 2 amounts in respect of the relevant period, the comparison replaces any previous comparison under item   97 or this item in respect of that period for all purposes.

  (4)   If the amount of the advance is more than the amount of the reduced fees:

  (a)   the difference in the amounts is a debt due to the Commonwealth by the service; and

  (b)   t he debt is taken to meet the definitions of debt in subsection 82 (3) and section 94 of the Family Assistance Administration Act.

  (5)   If the amount of the advance is less than the amount of the reduced fees:

  (a)   the difference in the amounts is to be paid to the credit of a bank account nominated and maintained by the service; and

  (b)   the payment is a family assistance payment for the purposes of section 93A of the Family Assistance Administration Act.

  (6)   The Secretary must give notice of any debt arising under subitem (4), or any payment made under subitem (5), to the service.

  (7)   The notice must be given in the form, and in the manner or way, approved by the Secretary.".

2.5   Modification of Amendment Act   -- delegation (Schedule 1)

  (1)   For item 101 of Schedule 1 to the Amendment Act, Schedule 1 to that Act is modified in relation to the amendments made by the Amendment Act as set out in this regulation.

  (2)   Schedule 1 applies as if the following item were inserted after item 100:

" 100A   Delegation

  (1)   Subject to subsection   (2), the Secretary may delegate to an officer all or any of the powers of the Secretary under this Schedule.

  (2)   The Secretary must not delegate such a power to an officer of an agency other than the Department, unless the head of the agency has agreed to the delegation.".