Revised Explanatory Memorandum
(Circulated by authority of the Minister for Education, the Honourable Dan Tehan MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
FAMILY ASSISTANCE LEGISLATION AMENDMENT (BUILDING ON THE CHILD CARE PACKAGE) BILL 2019
This Bill 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 Bill
The purpose of the Bill is to address feedback from families and the child care sector and findings from ongoing consideration and evaluation of the child care package. The Bill makes policy refinements, addresses unintended consequences resulting from the implementation of the child care package, and makes a number of clarifying and technical amendments.
The Bill comprises two Schedules.
Schedule 1 - Amendments relating to child care subsidies
This Schedule is divided into three Parts, for amendments that commence:
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- at the start of the first Child Care Subsidy (CCS) fortnight (within the meaning of the A New Tax System (Family Assistance) Act 1999) to occur wholly after Royal Assent;
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- on 13 January 2020; and
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- on 13 July 2020.
Amendments to the A New Tax System (Family Assistance) Act 1999 include amending the requirements on child care providers for the issuing of Additional Child Care Subsidy (ACCS) (child wellbeing) certificates, by removing the 50 per cent limit on the number of children that a provider can self-certify for ACCS (child wellbeing). This will reduce barriers to vulnerable children accessing early learning and child care services.
Further amendments include allowing the Minister for Education to prescribe circumstances in which a third party may contribute to meeting the cost of an individual's child care fees without affecting that individual's Commonwealth child care subsidies. This will help ensure the cost of child care is not a barrier to vulnerable and disadvantaged children attending early learning and child care services.
A new rule-making provision will also be included to allow the Minister for Education to prescribe specific circumstances in which Commonwealth child care subsidies can be paid where the child is absent at the start or end of an enrolment. This will ensure families are not unfairly disadvantaged by a rule intended to prevent the inappropriate use of absence provisions by some child care providers.
These amendments also incorporate In Home Care more fully into the Family Assistance Law. In Home Care is a child care type that was revised following the outcome of the Nanny Pilot Programme and the former In Home Care program reviews. These reviews were completed after the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 was passed. The amendments include the In Home Care rate alongside the rates for other care types, and the capacity for the Minister for Education to specify eligibility criteria and care requirements that must be met for access to Commonwealth-subsidised In Home Care places. Eligibility criteria are necessary as In Home Care is a targeted and capped care type.
Amendments to A New Tax System (Family Assistance) (Administration) Act 1999 include increasing the number of weeks at which enrolments automatically cease due to non-attendance from 8 to 14 weeks. This will reduce regulatory burden on both families and child care providers by eliminating the need for children to be re-enrolled following most regular breaks in attendance, such as where a child does not attend care during the school term. This is the only amendment to commence on 13 January 2020, to enable the change to be implemented for the December-January (2019-20) school holiday period.
Amendments to A New Tax System (Family Assistance) (Administration) Act 1999 in this Schedule also clarify that decisions made under section 105 of that Act (Secretary initiated review) must first be subject to internal review before application is made to the Administrative Appeals Tribunal (AAT). These amendments align with existing policies and practices, and will ensure that where a person is dissatisfied with a decision, that person accesses internal review mechanisms prior to applying to the AAT.
Further amendments also include simplifying the process around making claims for CCS, while retaining scope for flexibility around some of the requirements in limited circumstances.
There are also a number of other refinements, corrections and consequential amendments, the purpose of which is to clarify the policy intent of the Commonwealth and address unintended consequences.
Schedule 2 - Amendments relating to ensuring the integrity of the child care subsidy system
This Schedule brings the requirements for the approval of child care providers and services into closer alignment with related state and territory laws, and enhances the Commonwealth's child care subsidy payment integrity framework.
The amendments include ensuring that where an approved provider or child care service is suspended or cancelled under the Education and Care Services National Law (effectively the state/territory licencing regime for operating child care services), access to Commonwealth child care subsidies will be automatically suspended or cancelled. The amendments also include a capacity for child care providers to request voluntary suspension of their Commonwealth approval in appropriate circumstances.
The Schedule also contains administrative and technical amendments that bring clarity to policy intent and address unintended consequences.
The Bill specifically engages the following treaties and Articles contained within:
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- International Covenant on Economic, Social and Cultural Rights (ICESCR) - Articles 6 and 9; and
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- Convention of the Rights of the Child (CRC) - Articles 3, 18, 19, and 27.
Analysis of human rights implications
The Bill does not represent a material departure from the overall policy objectives of the measures introduced in the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017.
In building on the child care package, the Bill engages many of the human rights which were analysed for passage of the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017, which are set out below.
The right to work
Article 6 of the ICESCR requires that State 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. This right goes to a primary objective of the child care package and that the Bill is building on to address unintended consequences - to assist parents who want to work, or work more.
The rights of parents and children
Article 3 of the CRC recognises that in all actions concerning children, the best interests of the child shall be a primary consideration. Early learning and child care plays a vital role in the development of Australian children. Their preparation for school and access to this care is also one of the most effective early intervention strategies to break the cycle of poverty. The Bill supports another of the primary objectives of the child care package - to support families to access quality child care.
The Bill is supporting this objective by enabling (through subordinate legislation) targeted third party payments (such as those made by state and territory governments) to cover some or all of the co-contribution of the cost of child care for disadvantaged and vulnerable families. Given that even a small co-contribution to child care fees can be a barrier to some families accessing child care, the Bill promotes access to quality early learning and child care for disadvantaged and vulnerable families.
Article 18 of the CRC mandates that States Parties shall use best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child, and to provide appropriate assistance, in particular to ensure that children of working parents have the right to benefit from child care services and facilities for which they are eligible.
This Bill addresses unintended consequences resulting from the implementation of the child care package that disadvantage families and child care providers, for example increasing the number of weeks at which enrolments automatically cease due to non-attendance from 8 to 14 weeks in order to reduce regulatory burden on both families and child care providers in completing re-enrolment processes.
Article 19 of the CRC requires that appropriate measures are taken to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation. The Commonwealth's ACCS (child wellbeing) payment, which provides additional financial support to meet the cost of child care, is in particular designed to remove cost as a barrier for families with children in certain vulnerable situations, to ensure they are able to access quality child care. This Bill further reduces barriers to vulnerable children accessing early learning and child care by removing the 50 per cent limit on the number of children a provider can self-certify for ACCS (child wellbeing).
Right to adequate standard of living
Article 27 of the CRC requires that States Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. The Bill advances this right through amendments that help ensure children have access to an adequate amount of child care to aid socialisation and development. For example, the amendments relating to the Commonwealth's ACCS (child wellbeing) discussed above, which build on promoting this right by reducing barriers to access early learning and child care.
Right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. Under the child care package, families who meet basic eligibility criteria are eligible for Commonwealth child care subsidies so long as they meet (or are exempt from) an activity test and their combined annual income is less than $352,453. Additionally, children at risk of serious abuse or neglect, families experiencing temporary financial hardship and families transitioning from income support to work are eligible for further support through the Commonwealth's additional child care subsidy that ensures children in these families have access to adequate child care.
Amendments to section 10 of the A New Tax System (Family Assistance) Act 1999 ensure families can access Commonwealth child care subsidies on days prior to the child's first day of care, and after their last day of care, in limited circumstances prescribed by the Minister for Education. This ensures families are not unfairly disadvantaged and can access subsidies in these circumstances.
The Bill also contains amendments to more fully incorporate In Home Care into the Family Assistance Law. In Home Care is a care type available to families where other care options are not available or appropriate. Inserting In Home Care into primary legislation provides more transparent access to this care type and ensures that vulnerable children and families can benefit from appropriately tailored care arrangements.
Conclusion
This Bill is compatible with human rights. The amendments in this Bill improve on the child care package through minor policy refinements and clarifications, with no material departures from the overarching policy objectives of the measures introduced in the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017. The child care package advanced human rights under the CRC and ICESCR by providing families with greater access to workforce participation, and access to a flexible and quality child care system. The measures in this Bill continue to advance these rights by making this scheme more transparent for families, and more efficient for the Commonwealth to administer.