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 (IMPROVING ASSISTANCE FOR VULNERABLE AND DISADVANTAGED FAMILIES) BILL 2020
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 this Bill is to address feedback from the child care sector regarding access to Additional Child Care Subsidy (ACCS) (child wellbeing) in the context of the Child Care Package implementation that occurred on 2 July 2018 and more recently in submissions to the Senate Inquiry into the Family Assistance Legislation Amendment (Building on the Child Care Package) Bill 2019 (subsequently enacted as the Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019).
The Bill makes changes to ACCS (child wellbeing) to improve assistance to vulnerable and disadvantaged families and clarify and better reflect policy intent in several areas.
The Bill also makes two other minor technical amendments.
Schedule 1 - Amendments relating to ACCS (child wellbeing) and technical amendments
The Bill includes amendments, which specify that a provider's eligibility for ACCS (child wellbeing) also applies where a child is a member of a class prescribed by the Minister's rules. It is anticipated that children in formal foster care arrangements (under state and territory child protection legislation) will be in this prescribed class. Currently, in order to be eligible for ACCS (child wellbeing), providers must satisfy the requirement (among others) that the provider is not able to identify an individual who is eligible for CCS for the session of care for the child. These amendments will allow the provider to instead satisfy the requirement (among others) that the child is a member of the prescribed class. Provider eligibility for ACCS (child wellbeing) for children in the prescribed class is only available for up to 13 weeks, which includes the timeframe encompassing both the certificate and determination. This will mean that providers can receive ACCS (child wellbeing) on behalf of a child who is at risk of serious neglect or abuse ('at risk') for up to 13 weeks without having to wait for a foster family to work out its CCS eligibility and therefore will ensure these children have streamlined access to, and continuity of, child care. It is expected that the provider will work with the foster family to ensure that an eligible person is identified and a complying written arrangement is in place prior to the expiry of the provider eligible period (maximum of 13 weeks).
The Bill also includes amendments to extend the backdating of ACCS (child wellbeing) certificates and determinations from the current period of 28 days to up to 13 weeks in exceptional circumstances to be prescribed in Minister's rules. This will mean gaps in ACCS (child wellbeing) will be avoided for providers when a child is identified as 'at risk' and it takes longer than 28 days for the provider to provide a certificate or apply to the Secretary for a determination due to exceptional circumstances. The exceptional circumstances are anticipated to be circumstances, which are outside the provider's control and made it impractical for the provider to provide the certificate or apply for a determination within the required timeframes. The Secretary will assess each backdating application and make a decision on the appropriate length of time (up to 13 weeks) that the certificate or determination should be backdated. This measure better facilitates the access to quality early learning and child care by children who are at 'at risk'.
Further amendments will extend the period that an ACCS (child wellbeing) determination can be in place from 13 weeks to up to 12 months for classes of children to be prescribed in the Minister's rules. It is anticipated that children on long term child protection orders, including those in foster care, will be prescribed in the Minister's Rules made for this purpose. This will reduce the administrative burden on providers, families and state and territory governments by no longer requiring them to apply to Services Australia with supporting evidence every 13 weeks to extend the ACCS (child wellbeing) determination, in circumstances where the child's situation results in them continuing to be 'at risk' for up to 12 months.
Finally, the amendments will address minor technical drafting errors to:
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- provide exceptions to when the Secretary may vary the approval of an approved provider to remove an approved service under paragraph 197G(1)(b) of the Family Assistance Administration Act; and
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- correct the omission of the civil penalty amount (50 civil penalty units) in subsection 204K(6) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act).
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, or the amendments made by the Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019.
The rights of parents and children
Article 3 of the Convention on the Rights of the Child (CRC) recognises that in all actions concerning children, the best interests of the child shall be a primary consideration. 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.
Early learning and child care play 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 one of the primary objectives of the Child Care Package - to support families to access quality child care.
The Bill supports this objective by reducing the administrative burden for providers and families needing to access additional support through the ACCS (child wellbeing) payment. 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.
The measures in this Bill continue to advance this right by:
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- clarifying the capacity for child care providers to be eligible for ACCS (child wellbeing) in certain limited and appropriate circumstances, such as where children are in foster care arrangements;
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- extending backdating provisions for ACCS (child wellbeing) beyond 28 days in exceptional circumstances to ensure there are no gaps in entitlement where a child has been identified as 'at risk'; and
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- extending the length of a determination for up to 12 months (as opposed to 13 weeks) for children in a class prescribed by the Minister's rules - which is anticipated to include children on long term child protection orders.
Right to adequate standard of living
Article 27 of the CRC requires that State 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 ACCS (child wellbeing) discussed above, promote this right by reducing barriers to access early learning and child care.
Right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights (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 as 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 ACCS, which ensures children in these families have access to adequate child care.
The amendments extend the access of vulnerable children and families to ACCS (child wellbeing) where appropriate and reduce the current administrative barriers to this access. This better enables vulnerable children and families to receive this form of social security.
Conclusion
The Bill is compatible with human rights. The amendments in this Bill improve on the child care package through minor policy refinements and clarifications on access to ACCS (child wellbeing). The measures in this Bill continue to advance rights human rights under the CRC and ICESCR through the child care package and subsequent child care legislative amendments by streamlining administrative processes for providers and families and making the scheme more efficient for the Commonwealth to administer.