Commonwealth Consolidated Acts

FAMILY ASSISTANCE LEGISLATION AMENDMENT (CHILD CARE REBATE) ACT 2011 - SCHEDULE 3

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

1   Subsection 3(1) (after paragraph   (a) of the definition of child care service payment )

Insert:

  (aa)   a payment under section   219QC or subsection 219QD(2) in respect of child care rebate; or

2   Before Subdivision AA of Division   4AA of Part   3

Insert:

Subdivision AAA -- Election to have child care rebate paid in various ways

65EAAAA   Individual may elect to have child care rebate paid in various ways

  (1)   An individual may give the Secretary notice in accordance with subsection   (2) electing to have child care rebate in respect of the individual and a child for care provided for the child in an income year paid in one of the following ways:

  (a)   weekly into a bank account maintained by the individual alone or jointly or in common with someone else;

  (b)   weekly to one or more approved child care services;

  (c)   quarterly into a bank account maintained by the individual alone or jointly or in common with someone else.

Note:   Child care rebate is calculated on the basis of reports given by approved child care services in relation to each week of care under section   219N. A report for care provided in one week may be given up to 2 weeks later. A service may therefore give a report for 2 weeks together. For this reason, payments of child care rebate to an individual for 2 successive weeks may be made together. The effective result is then a fortnightly payment.

  (2)   A notice under subsection   (1):

  (a)   must be given in the form, and in the manner or way, approved by the Secretary; and

  (b)   must be given before the beginning of the income year to which the notice relates unless:

  (i)   the individual makes a claim after the beginning of the income year for payment of child care benefit by fee reduction for care provided for the child by one or more approved child care services; or

  (ii)   the Secretary makes a determination under subsection   (4).

  (3)   If an individual gives notice under subsection   (1) when making a claim after the beginning of an income year for payment of child care benefit by fee reduction, the election is taken to relate to the income year in which the claim is made.

  (4)   The Secretary may determine, in writing, that an individual may give notice under subsection   (1) after the income year to which the notice relates has begun, if the Secretary is satisfied that there are exceptional circumstances justifying the determination.

Note:   A determination of entitlement to child care rebate will be made for the income year under Subdivision A of this Division. So if a person is entitled to child care rebate, does not elect to have it paid weekly or quarterly and has not been receiving child care rebate weekly or quarterly as a result of a previous election (see section   65EAAAC), child care rebate will be paid after the end of the income year.

65EAAAB   Period in which election has effect

  (1)   If:

  (a)   a notice is given under paragraph 65EAAAA(1)(a) or (b) to have child care rebate paid weekly; and

  (b)   the notice is given before the income year to which it relates has begun;

the election takes effect on the first Monday in the income year and continues in effect for each week all or part of which falls in the income year.

  (2)   If:

  (a)   a notice is given under paragraph 65EAAAA(1)(c) to have child care rebate paid quarterly; and

  (b)   the notice is given before the income year to which it relates has begun;

the election takes effect on the first day of the first quarter in the income year and continues in effect for each quarter which falls in the income year.

  (3)   If notice is given under subsection 65EAAAA(1) after the income year to which it relates has begun:

  (a)   the Secretary must determine in writing the day on which the election is to take effect; and

  (b)   the election continues in effect:

  (i)   if the notice is given under paragraph 65EAAAA(1)(a) or (b) to have child care rebate paid weekly--for each week all or part of which falls in the income year; and

  (ii)   if the notice is given under paragraph 65EAAAA(1)(c) to have child care rebate paid quarterly--for each quarter which falls in the income year.

65EAAAC   Where no election made for an income year

    If an individual does not give notice under subsection 65EAAAA(1) for an income year, child care rebate in respect of the individual and the child for care provided during the income year is to be paid:

  (a)   if child care rebate was paid in respect of the individual and the child in relation to the immediately preceding income year--in the same way as it was paid in relation to that year; and

  (b)   otherwise--for the income year.

Subdivision AAB -- Weekly payments of child care rebate

65EAAA   Weekly payments of child care rebate

    If:

  (a)   the Secretary is satisfied that an individual is eligible under subsection 57EAA(1) of the Family Assistance Act for child care rebate for a week in respect of a child; and

  (b)   the Secretary has calculated an amount of fee reduction under subsection 50Z(1) in respect of the individual and the child for a session or sessions of care provided by an approved child care service in the week;

the Secretary must calculate the amount of the rebate which the Secretary considers is applicable in respect of the individual and the child for care provided for the child by the approved child care service in the week.

Note 1:   The individual will not be eligible to have child care rebate paid weekly unless the individual has made an election under paragraph 65EAAAA(1)(a) or (b) to have rebate paid weekly.

Note 2:   The calculation is made in accordance with section   84AAA of the Family Assistance Act.

Note 3:   The amount of fee reduction calculated under subsection 50Z(1) may be a nil amount (see section   4A).

65EAAB   Where individual elects to have child care rebate paid weekly to approved child care service

  (1)   This section applies if:

  (a)   the Secretary calculates an amount of child care rebate under section   65EAAA which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and

  (b)   the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service.

  (2)   The Secretary must notify the approved child care service of the amount calculated.

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

  (4)   Without limiting subsection   (3), the Secretary may approve notification of the amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.

Note:   The amount is then paid to the approved child care service under subsection 219QC(1).

65EAAC   Where individual elects to have child care rebate paid weekly into own bank account

  (1)   This section applies if:

  (a)   the Secretary calculates an amount of child care rebate under section   65EAAA which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and

  (b)   the individual has made an election under paragraph 65EAAAA(1)(a) that is in effect for the week to have child care rebate paid weekly into a bank account nominated and maintained by the individual.

  (2)   The Secretary must pay the amount of child care rebate calculated under section   65EAAA to the individual, at such time as the Secretary considers appropriate, by paying it to the credit of the bank account.

  (3)   The Secretary may direct that the whole or a part of an amount that is to be paid under this section is to be paid in a different way from that provided for by subsection   (2). If the Secretary gives the direction, the amount is to be paid in accordance with the direction.

  (4)   The Secretary must give notice to the individual:

  (a)   identifying the week or weeks to which the notice relates (the rebate period ); and

  (b)   stating:

  (i)   the child's name; and

  (ii)   the amount of child care rebate calculated in respect of the rebate period (the rebate amount ); and

  (iii)   the total amount of the individual's approved child care fees for care provided for the child by the approved child care service during the rebate period, worked out under step 1 of the method statement in section   84AAA of the Family Assistance Act when calculating the rebate amount; and

  (iv)   the total amount (if any) of fee reductions for care provided for the child by the approved child care service during the rebate period, worked out under step 2 of the method statement in section   84AAA of the Family Assistance Act when calculating the rebate amount.

  (5)   The calculation and payment of an amount of child care rebate applicable under this section is not ineffective by reason only that any, or all, of the requirements of subsection   (4) are not complied with.

  (6)   This section is subject to:

  (a)   section   65EAAF; and

  (b)   section   65EAB; and

  (c)   Part   4; and

  (d)   Division   3 of Part   8B.

65EAAD   Revising a calculation of weekly child care rebate

    The Secretary may recalculate an amount of child care rebate which the Secretary considers is applicable:

  (a)   under section   65EAAA; or

  (b)   under a previous application of this section;

in respect of an individual and a child for care provided for the child by an approved child care service in a week, so long as a determination of entitlement has not been made under Subdivision A in respect of the individual and child for the income year in which all or part of the week falls.

65EAAE   If weekly payment is to an approved child care service, notice of revised calculation must be given to the service

  (1)   This section applies if:

  (a)   the Secretary, under section   65EAAD, recalculates an amount of child care rebate which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and

  (b)   the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service.

  (2)   The Secretary must notify the approved child care service of the recalculated amount.

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

  (4)   Without limiting subsection   (3), the Secretary may approve notification of the amount by making the information available to the approved child care service using an electronic interface. In that case, the approved child care service is taken to have been given the notice on the day on which the information is made available.

Note:   The effect of a recalculation on payments to an approved child care service is dealt with in subsection 219QC(2) and section   219QD.

65EAAF   Effect of revised calculation--payment to the individual

  (1)   This section applies if:

  (a)   the Secretary, under section   65EAAD, recalculates an amount of child care rebate which the Secretary considers is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and

  (b)   the individual has made an election under paragraph 65EAAAA(1)(a) that is in effect for the week to have child care rebate paid weekly into a bank account nominated and maintained by the individual.

  (2)   If the recalculation increases the amount of child care rebate applicable in respect of the individual and the child for care provided for the child by the service in the week, then subsections 65EAAC(2), (3) and (6) apply to the increase as if the increase were the amount applicable under section   65EAAA.

  (3)   If the recalculation decreases the amount of child care rebate applicable in respect of the individual and the child for care provided for the child by the service in the week, the Secretary may set off all or a part of the decrease against an amount of child care rebate applicable under this Subdivision or Subdivision AA for that or any other approved child care service in respect of the individual and the child for a later period in the same income year.

  (4)   The Secretary must give notice to the individual:

  (a)   identifying the week or weeks to which the notice relates (the rebate period ); and

  (b)   stating:

  (i)   the child's name; and

  (ii)   the amount of child care rebate as recalculated under this section in respect of the rebate period (the rebate amount ); and

  (iii)   the total amount of the individual's approved child care fees for care provided for the child by the approved child care service during the rebate period, worked out under step 1 of the method statement in section   84AAA of the Family Assistance Act when recalculating the rebate amount; and

  (iv)   the total amount (if any) of fee reductions for care provided for the child by the approved child care service during the rebate period, worked out under step 2 of the method statement in section   84AAA of the Family Assistance Act when recalculating the rebate amount.

  (5)   The recalculation and payment of an amount of child care rebate applicable under this section is not ineffective by reason only that any, or all, of the requirements of subsection   (4) are not complied with.

3   Paragraphs 108(2)(da) to (db)

Repeal the paragraphs, substitute:

  (da)   a decision by the Secretary under section   219Q or subsection 219QA(2) to pay an amount in respect of fee reduction; or

  (db)   a decision by the Secretary under section   219QC or subsection 219QD(2) to pay an amount in respect of child care rebate; or

  (dc)   a decision under subsection 219RA(1A) not to pay an enrolment advance; or

  (dd)   a decision under section   219RD (business continuity payments); or

  (de)   a calculation of an amount of child care rebate for a week under section   65EAAA, or a recalculation of such an amount under section   65EAAD; or

  (df)   a decision by the Secretary under subsection 65EAAAA(4) (allowing election after beginning of income year to be paid child care rebate weekly or quarterly) or under subsection 65EAAAB(3) (day on which new payment arrangement begins); or

  (dg)   a calculation of an amount of child care rebate for a quarter under section   65EAA, or a recalculation of such an amount under section   65EAB; or

4   After subparagraph 111(2)(a)(ix)

Insert:

  (ixa)   paragraph 65EAAAA(2)(a);

  (ixb)   subsection 65EAAB(3) or 65EAAE(3);

5   After section   219E

Insert:

Subdivision C -- Obligations relating to weekly child care rebate

219EA   Obligation to pass on weekly child care rebate

  (1)   This section applies if:

  (a)   the Secretary calculates under section   65EAAA, or recalculates under section   65EAAD, the amount of the child care rebate that is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and

  (b)   the Secretary has notified the service of the amount in accordance with subsection 65EAAB(2), or the recalculated amount in accordance with subsection 65EAAE(2).

  (2)   The service must, within 14 days after being notified of the amount as calculated or recalculated, pass the amount on to the individual, except to the extent that the service is required to remit the amount to the Secretary under section   219QE.

Note 1:   This amount must be passed on, even if the payment of child care rebate has been suspended under paragraph 200(1)(i).

Note 2:   This is a civil penalty provision. Part   8C provides for pecuniary penalties for breaches of civil penalty provisions.

  (3)   An approved child care service commits an offence if the service contravenes subsection   (2).

Penalty:   60 penalty units.

  (4)   Subsection   (3) is an offence of strict liability.

Note:   For strict liability, see section   6.1 of the Criminal Code .

  (5)   If:

  (a)   the service reduces the amount by which it charges an individual in respect of care in anticipation of the Secretary's calculation of the amount of child care rebate applicable for the service in respect of the individual and a child for a week; and

  (b)   the service was an approved child care service at the time the care was provided;

the service is taken to have passed on to the individual an amount equal to the anticipated child care rebate.

  (6)   The amount is taken to have been passed on to the individual on the day on which the Secretary notified the service of the amount in accordance with subsection 65EAAB(2) or 65EAAE(2).

219EB   Obligation to provide additional material in section   219E statements

  (1)   If:

  (a)   an approved child care service is required to pass on an amount under section   219EA to an individual in respect of care provided for a child by the service in a week; and

  (b)   the care is provided in a statement period for the service described in subsection 219E(4) or set out in rules made under paragraph 219E(6)(c);

the service must set out the additional matters specified in subsection   (4) in relation to the care in the statement given to the individual or another person under section   219E for the statement period.

Note:   This is a civil penalty provision. Part   8C provides for pecuniary penalties for breaches of civil penalty provisions.

  (2)   An approved child care service commits an offence if:

  (a)   the approved child care service is required to pass on an amount under section   219EA to an individual in respect of care provided for a child by the service in a week; and

  (b)   the care is provided in a statement period for the service described in subsection 219E(4) or set out in rules made under paragraph 219E(6)(c); and

  (c)   the service does not set out the additional matters specified in subsection   (4) in relation to the care in the statement given to the individual or another person under section   219E for the statement period.

Penalty:   60 penalty units.

  (3)   Subsection   (2) is an offence of strict liability.

Note:   For strict liability, see section   6.1 of the Criminal Code.

  (4)   The additional matters required to be set out in the statement given under section   219E for the statement period are:

  (a)   the amount of the fees for which the individual to whom the amount is passed on would have been liable for the care if any fee reduction under section   219B had been passed on but no amount of child care rebate had been passed on under section   219EA for the care; and

  (b)   the amount of child care rebate required to be passed on under section   219EA.

  (5)   If:

  (a)   an approved child care service has, under subsection   (1), included a matter in a statement (the earlier statement ) given to an individual or other person under section   219E in relation to care provided by the service during a statement period; and

  (b)   under subsection 65EAAE(2), the service is notified on a day (the notification day ) of a recalculated amount in respect of the care;

the service must, before the end of the first statement period starting after the notification day, give the individual or other person either a statement setting out the additional matters specified in subsection   (4) taking account of the recalculation or a statement amending the earlier statement so as to take account of the recalculation.

Note:   This is a civil penalty provision. Part   8C provides for pecuniary penalties for breaches of civil penalty provisions.

  (6)   An approved child care service commits an offence if:

  (a)   an approved child care service has, under subsection   (1), included a matter in a statement (the earlier statement ) given to an individual or other person under section   219E in relation to care provided by the service during a statement period; and

  (b)   under subsection 65EAAE(2), the service is notified on a day (the notification day ) of a recalculated amount in respect of the care; and

  (c)   the service does not, before the end of the first statement period starting after the notification day, give the individual or other person either a statement setting out the additional matters specified in subsection   (4) taking account of the recalculation or a statement amending the earlier statement so as to take account of the recalculation.

Penalty:   60 penalty units.

  (7)   Subsection   (6) is an offence of strict liability.

Note:   For strict liability, see section   6.1 of the Criminal Code.

Subdivision D -- Obligations relating to records

6   After Division   2 of Part   8A

Insert:

Division   2A -- Weekly payments in respect of child care rebate to approved child care services

219QC   Weekly payments of child care rebate

  (1)   If:

  (a)   the Secretary, under section   65EAAA, calculates the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week; and

  (b)   the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service;

the Secretary must pay the amount calculated to the credit of a bank account nominated and maintained by the service.

  (2)   If:

  (a)   the Secretary, on recalculating under section   65EAAD the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week, increases the amount; and

  (b)   the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service;

the Secretary must pay to the credit of a bank account nominated and maintained by the service an amount equal to the increase.

Relationship with other provisions

  (3)   This section is subject to:

  (a)   Part   4 (overpayments and debt recovery); and

  (b)   section   219QA (set off where amount of applicable fee reduction reduced on recalculation); and

  (c)   section   219QD (set off where amount of applicable child care rebate reduced on recalculation); and

  (d)   section   219RC (set off where enrolment ceases or where notification of decision to cease operating service); and

  (e)   section   219RE (set off where a payment under section   219RD is made); and

  (f)   paragraph 200(1)(i) (suspending payment in respect of child care rebate).

219QD   Payments and set offs where recalculation results in reduced weekly child care rebate

  (1)   This section applies if:

  (a)   the Secretary, on recalculating under section   65EAAD the amount in which the Secretary considers child care rebate is applicable in respect of an individual and a child for care provided for the child by an approved child care service in a week, reduces the amount (including to nil); and

  (b)   the individual has made an election under paragraph 65EAAAA(1)(b) that is in effect for the week to have child care rebate paid weekly to the approved child care service.

  (2)   The Secretary must pay the amount (if any) as last recalculated to the credit of a bank account nominated and maintained by the service.

  (3)   The amount as calculated, or recalculated, immediately before the last recalculation must be set off against one or more child care service payments that are to be made to the service (the first service ) or to another approved child care service operated by the person who operates the first service.

Note:   For child care service payment see subsection 3(1).

219QE   Remitting amounts that cannot be passed on

  (1)   If:

  (a)   either:

  (i)   an amount is paid to an approved child care service under section   219QC or subsection 219QD(2) for a week; or

  (ii)   such an amount would be paid, but for a set off under subsection 82(2), section   219QA, section   219QD, section   219RC or section   219RE, or the imposition of a sanction under paragraph 200(1)(i); and

  (b)   it is not reasonably practicable for the service to pass on to the individual within the time required under subsection 219EA(2) the child care rebate in respect of which the amount was or would have been paid;

the service must immediately remit to the Secretary an amount equal to the amount that could not be passed on.

Note:   This is a civil penalty provision. Part   8C provides for pecuniary penalties for breach of civil penalty provisions.

  (2)   An approved child care service commits an offence if the service contravenes subsection   (1).

Penalty:   60 penalty units.

  (3)   The amount must be remitted in the manner or way approved by the Secretary.

  (4)   The service must notify the Secretary of the remittal of the amount.

  (5)   The notice must:

  (a)   be given in the form, and in the manner or way, approved by the Secretary; and

  (b)   include any information required by the Secretary.

7   Paragraph 219RC(1)(b)

Omit "or section   219QA", substitute "section   219QA or section   219QD".

8   Subparagraph 219RC(3)(b)(ii)

After "section   219QA,", insert "section   219QD,".

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

9   After paragraph 97C(1)(b) of Schedule   1

Insert:

  (ba)   subsection 219QD(3) of that Act (about set off where amount of weekly child care rebate reduced on recalculation); and

10   Application

The amendments made by this Schedule apply in relation to income years beginning on or after 1   July 2011.

Notes to the Family Assistance Legislation Amendment (Child Care Rebate) Act 2011

Note 1

The Family Assistance Legislation Amendment (Child Care Rebate) Act 2011 as shown in this compilation comprises Act No.   25 , 20 1 1 amended as indicated in the Tables below.

Table of Acts

(a)   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