Explanatory Memorandum
(Circulated by authority of the Minister for Employment Participation and Childcare, the Honourable Kate Ellis MP)Schedule 3 - Scope of family assistance law
Summary
This Schedule makes clarifying amendments to the definition of the family assistance law in the Family Assistance Administration Act to include instruments made under the Family Assistance Administration Act and the Family Assistance Act. Similar consequential amendments are also made to the family assistance law definitions in the Child Care Act 1972 and the Social Security Act 1991 .
The amendments also provide that an instrument that is taken to be part of the family assistance law can provide that any decisions under it are subject to the internal and external review mechanisms provided for in the Family Assistance Administration Act.
Background
The definition of the family assistance law in subsection 3(1) of the Family Assistance Administration Act provides that this term means any of the following:
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- the Family Assistance Administration Act;
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- the Family Assistance Act;
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- regulations under the Family Assistance Administration Act; and
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- Schedules 5 and 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000 (the Act providing for the transitional arrangements relevant to the introduction of the Family Assistance Act and the Family Assistance Administration Act).
Currently, there are no regulations made under the Family Assistance Administration Act, although there are numerous legislative instruments made under that Act and the Family Assistance Act.
The definition of family assistance law does not expressly include other instruments (legislative or non-legislative) made under the instrument-making powers in the Family Assistance Administration Act or the Family Assistance Act.
The Family Assistance Administration Act, the Family Assistance Act and the instruments include frequent references to the family assistance law in a variety of contexts, including review of decisions, delegation of powers, obligations, offences, confidentiality provisions etc. While it may be that an instrument made under the power in any of these Acts is, in effect, part of the family assistance law , there is some doubt that it may not be, or it may not be so in some legislative contexts.
Clarifying amendments are therefore made in this Schedule (by Item 1 ) to achieve certainty that the references to the family assistance law include instruments made under the authority of the Family Assistance Administration Act and the Family Assistance Act.
Explanation of the changes
A New Tax System (Family Assistance) (Administration) Act 1999
Item 1 - Subsection 3(1) (paragraph (c) of the definition of family assistance )
Paragraph 3(1)(c) of the definition of family assistance law includes within the scope of this term regulations made under the Family Assistance Administration Act. Item 1 substitutes this paragraph with new paragraph (c) which extends the scope of this term to include any instrument, including regulations, made under this Act or the Family Assistance Act.
Items 2 and 3 - At the end of subsection 108(2) and After subsection 108(2)
Subsection 108(1) of the Family Assistance Administration Act provides that a decision of an officer under the family assistance law is subject to internal review, unless it is a decision of a kind set out in subsection (2). Most decisions that are subject to internal review can then be appealed to external merits review bodies (the Social Security Appeals Tribunal, then the Administrative Appeals Tribunal). Unless a decision under the family assistance can be subject to internal review, it cannot be appealed to external review bodies.
Item 2 amends subsection 108(2) to include in the list of the decisions that cannot be reviewed a decision under an instrument, including regulations, made under the Family Assistance Administration Act or the Family Assistance Act. Item 3 inserts new subsection 108(2A), which provides that new paragraph 108(2)(h) does not apply in relation to a decision under an instrument if the instrument provides that the decision is reviewable for the purposes of this section.
In most cases, instruments made under the Acts do not and will not contain decision-making powers, either because individually they are the embodiment of an administrative decision under the Act, or because they simply amplify existing provisions in the Act for which review is already available. In some cases, instruments may contain provisions that involve decisions, but these decisions are not amenable to merits review, for example, they are:
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- 'process' decisions (i.e. they are not final and operative), such as the approval of a form or the manner of giving notice of something to the Department, or
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- decisions that do not affect substantive rights, such as a decision to allocate child care places to areas of Australia, or
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- decisions for which review would be futile.
However, where it is appropriate to do so, the maker of an instrument can and will provide that a decision or decisions under the instrument are reviewable ( Item 3 ).
These amendments do not affect current reviews of decisions under instruments (if any) (see Item 6 ).
Items 4 and 5 - Section 195A and Paragraphs 195A(a) and (b)
Section 195A provides that, for the purposes of the family assistance law and an instrument under that law, obligations imposed, and permissions conferred, on an approved child care service by the family assistance law or an instrument are imposed or conferred on the operator of the service. As the amendment made by Item 1 includes instruments made under the Family Assistance Administration Act and the Family Assistance Act in the scope of the family assistance law , the references in section 195A to 'an instrument' are redundant and are removed by the amendments made by Items 4 and 5 .
Item 6 - Application
Item 6 is an application provision. It provides that the amendments made by Items 2 and 3 apply in relation to decisions made on or after the commencement of those items.
Child Care Act 1972
Item 7 - Subsection 4(1) (paragraph (c) of the definition of family assistance law )
Item 7 amends the definition of the family assistance law in subsection 4(1) of the Child Care Act 1972 as a consequence of the amendment made by Item 1 to the definition of the family assistance law in the Family Assistance Administration Act.
Family assistance law is defined in subsection 4(1) of the Child Care Act 1972 to mean the Family Assistance Administration Act, the Family Assistance Act and regulations under the Family Assistance Administration Act.
Item 7 substitutes paragraph (c) of this definition (referring to regulations) with a new paragraph (c) referring to any instrument, including regulations, made under the Family Assistance Administration Act and the Family Assistance Act.
Social Security Act 1991
Item 8 - Subsection 23(1) (definition of family assistance law )
Item 8 amends the definition of the family assistance law in subsection 23(1) of the Social Security Act 1991 as a consequence of the amendment made by Item 1 to the definition of the family assistance law in the Family Assistance Administration Act.
The definition in subsection 23(1) of the Social Security Act 1991 replicates the definition in subsection 3(1) of the Family Assistance Administration Act. Item 8 repeals the definition in subsection 23(1) of the Social Security Act 1991 and replaces it with the definition of the family assistance law that cross-refers to the meaning given by subsection 3(1) of the Family Assistance Administration Act.