Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Honourable Dan Tehan MP)

Schedule 1 - ACCS (child wellbeing) and technical amendments

OVERVIEW

This Schedule 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. Provider eligibility for ACCS (child wellbeing) for children in the prescribed class is only available for up to 13 weeks.

This Schedule 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. 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.

Further amendments in this Schedule 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.

Finally, the amendments under this Schedule 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 Section 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 section 204K(6) of the Family Assistance Act.

Detailed explanation

Clarification of the provider eligible provisions

Subsection 85CA(2) of the Family Assistance Act sets out the circumstances where an approved provider may be eligible for ACCS (child wellbeing). One of the requirements that must be met is that, at the time the session of care is provided, the provider is not able to identify an individual who is eligible for CCS for the session of care. ^[1]

Amendments to the Family Assistance Act will have the effect that the provider may either satisfy the above mentioned requirement, or may, alternatively, satisfy the requirement that, at the time the session of care is provided, the child is a member of a class prescribed by the Minister's rules.

It is envisaged that the class of children prescribed by the Minister's rules will include children in formal foster care arrangements under state and territory child protection legislation.

This amendment is intended to facilitate continuity of care to children in short term foster care arrangements, where the person responsible for the child may change frequently or at short notice, making it difficult to identify a fixed person as the individual who is eligible for CCS, or ACCS (child wellbeing) in respect of the child.

However, where a provider satisfies the new alternate requirement that the child is a member of a prescribed class, any certificate and determinations given in respect of the child while the provider is eligible for ACCS (child wellbeing) in respect of the child can only be in place for a maximum of 13 weeks in total.

The reason for this 13 week limit is that it is anticipated that the nature of the "classes of children" that will be prescribed are such that within the 13 week time limit, an individual who is eligible for ACCS (child wellbeing) for the child (i.e. a carer or guardian) should be able to be identified. This would mean that, to the extent that the child remains at risk of serious abuse or neglect after the 13 week time limit, the child's carer or guardian, and not the provider, would now be eligible for ACCS (child wellbeing) in respect of the child and be entitled to ACCS (child wellbeing) for sessions of care provided to the child.

Further, it is expected that the provider will work with the foster family to ensure that a CCS eligible person is identified and a Complying Written Arrangement is in place with the eligible person prior to the expiry of the provider eligible period (maximum of 13 weeks).

Item 1 repeals paragraph 85CA(2)(b) and replaces it with a new paragraph 85CA(2)(b) setting out the alternative requirements that the provider may meet - that is, at the time the session of care is provided, either the provider is not able to identify an individual who is eligible for CCS for the session of care; or the child is a member of a class prescribed by the Minister's rules.

The new paragraph 85CA(2)(ba) simply restates what was previously in subparagraphs 85CA(2)(b)(ii) and (iii). These subparagraphs are now set out in a separate paragraph for ease of readability.

Item 2 updates a cross reference in subsection 85CA(3), which previously referred to the old subparagraph 85CA(2)(b)(ii) to now refer to its replacement provision, subparagraph 85CA(2)(ba)(i).

Items 4 and 5 give effect to the 13 week total limit that applies to certificates and determinations given where the provider satisfied the provider eligibility requirement at subparagraph 85CA(2)(b)(ii), that the child is a member of a prescribed class.

Subparagraph 85CE(5)(b)(ii) specifies that a determination cannot be in effect for more than 13 weeks. Item 4 amends this subparagraph to specify that is does not apply where the new subsection 85CE(5A) applies.

Item 5 inserts a new subsection 85CE(5A), which states that if a child is a member of the prescribed class, the unbroken period of weeks for which a determination and any of the following have effect cannot exceed 13 weeks:

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a certificate in relation to the child;

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one or more other determinations under this section that relate to the child.

The new subsection 85CE(5A) refers to an "unbroken period" of up to 13 weeks, as where the child is a member of a prescribed class, the nature of the child's situation is such, that if the child is 'at risk' is it intended that there will be no gap in the time that a certificate, and any determinations given in respect of the child, are in effect.

Subsection 85CE(6) allows the Secretary to make a consecutive determination if the Secretary is satisfied that the child will still be at risk after the previous determination ceases to have effect. The effect of the new subsection 85CE(5A) is to prevent the Secretary from making a consecutive determination which would exceed the 13 week limit that applies to a determination (and any immediately preceding certificate and other determinations) made in relation to a child who is in a prescribed class for the purpose of subparagraph 85CA(2)(b)(ii).

Item 6 amends paragraph 67CH(1)(c) of the Family Assistance Administration Act to align the preconditions that must be met for the Secretary to make a determination on the provider's entitlement to be paid ACCS (child wellbeing), to the amendments made by this Bill to the provider eligibility requirements at paragraph 85CA(2)(b) of the Family Assistance Act.

Subsection 67CH(1) sets out the preconditions that must be met before the Secretary must make a determination of a provider's entitlement to be paid ACCS (child wellbeing). The requirement at paragraph 67CH(1)(c) aligns with the provider eligibility requirement set out at subparagraph 85CA(2)(b)(i) of the Family Assistance Act, that the provider was not able to identify an individual who was eligible for CCS for the session of care. Item 6 repeals paragraph 67CH(1)(c) and substitutes a new precondition to align with the amended paragraph 85CA(2)(b) with the effect that the provider must have given the Secretary a declaration:

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where a certificate or determination is in effect because of subparagraph 85CA(2)(b)(i) of the Family Assistance Act-that the provider has made reasonable endeavours to identify an individual who is eligible for CCS (child wellbeing) for the sessions of care and has not been able to identify anyone; or

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where a certificate or determination is in effect because of subparagraph 85CA(2)(b)(ii) of the Family Assistance Act-that the child is in a class prescribed for the purposes of that subparagraph.

Enabling backdating of ACCS (child wellbeing) certificates and determinations beyond 28 days in exceptional circumstances

Section 85CA of the Family Assistance Act sets out the requirements that must be met for an individual or an approved provider to be eligible for ACCS (child wellbeing) for a session of care provided to a child. One requirement is that either:

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a certificate given under section 85CB of the Family Assistance Act; or

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a determination made under section 85CE of the Family Assistance Act,

must be in effect in relation to the child for the week in which the session of care occurred.

Section 85CB of the Family Assistance Act sets out the circumstances where an approved provider may give a certificate for ACCS (child wellbeing) in respect of a child, and sets out the requirements that apply to the certificate. One of these requirements is that the certificate cannot take effect more than 28 days before the day the certificate is given. ^[2]

Similarly, section 85CE of the Family Assistance Act sets out the circumstances where an approved provider may apply to the Secretary for a determination for ACCS (child wellbeing) in respect of a child, and sets out the requirements that apply to the determination. One of these requirements is that the determination cannot take effect more than 28 days before the application for the determination was made. ^[3]

Amendments in the Bill enable the backdating of ACCS (child wellbeing) certificates and determinations beyond the standard 28 day timeframe to up to 13 weeks, if the Secretary is satisfied that exceptional circumstances, as prescribed in the Minister's Rules, apply.

The provider would apply for the extended backdating of a certificate or a determination (as applicable), providing reasons and the Secretary would determine whether the extended backdated period should apply; and the length of the extended backdated period.

It is envisaged that the exceptional circumstances to be prescribed in the Minister's Rules will include circumstances which were beyond the provider's control and made it impracticable for the provider to give the certificate or apply for a determination in a timely manner. For example, exceptional circumstances where there has been a delay in confirming CCS eligibility that may result in a gap between the backdating of CCS and ACCS (child wellbeing).

The rationale for these amendments is to avoid vulnerable children and families from being disadvantaged and having their access to quality early learning and care compromised if circumstances beyond the provider's control prevented the provider from giving a certificate or applying for a determination in a timely manner.

Item 3 inserts a new subsection (2A) to section 85CB. The new subsection 85CB(2A) provides that the Secretary may extend the period of 28 days, which is specified in paragraph 85(2)(c) as the maximum time period that a certificate can be backdated to, to a period of no more than 13 weeks. However, the Secretary may only extend the time period if satisfied that an exceptional circumstance prescribed by the Minister's rules exists.

Item 5 inserts a new subsection (5B) to section 85CE. The new subsection 85CE(5B) provides that the Secretary may extend the period of 28 days, which is specified in paragraph 85CE(5)(a) as the maximum time period that a determination can be backdated to, to a period of no more than 13 weeks. However, the Secretary may only extend the time period if satisfied that an exceptional circumstance prescribed by the Minister's rules exists.

ACCS (child wellbeing) determination length for children in formal foster care arrangements and under long term child protection order

Subparagraph 85CE(5)(b)(ii) of the Family Assistance Act provides that an ACCS (child wellbeing) determination cannot have effect for more than 13 weeks.

Subsection 85CE(6) of the Family Assistance Act enables the Secretary to make a consecutive determination, to take effect on the Monday immediately after the earlier determination ceases to have effect, if the Secretary is satisfied that the child will still be at risk of serious abuse and neglect after the previous determination ceases to have effect.

Amendments in the Bill give the Secretary the discretion to extend the period of time that an ACCS (child wellbeing) determination can be in place from 13 weeks to up to 12 months if the Secretary is satisfied that a circumstance prescribed by the Minister's rules exists in relation to the child.

It is envisaged that the Minister's rules will specify circumstances such as where a child is in a formal foster care arrangement or the subject of a protection order or welfare order under state and territory child welfare legislation, which is in place for up to and exceeding 12 months.

The rationale for this amendment is that such formal foster care arrangements or protection orders are often long term. The Australian Government wishes to reduce the administrative burden on child care providers, child protection agencies and families and provide greater continuity of access to child care for such children, by allowing a longer determination to be made for them, rather than requiring consecutive determinations to be made for them every 13 weeks.

Item 5 inserts a new subsection (5C) to section 85CE, which gives the Secretary the discretion to extend the period of 13 weeks referred to in subparagraph 85CE(5)(b)(ii), to a period of no more than 12 months, if the Secretary is satisfied that a circumstance prescribed by the Minister's rules exists in relation to the child.

Corrections to technical drafting errors

Section 197G of the Family Assistance Administration Act allows the Secretary to vary the approval of an approved provider to remove an approved child care service from the provider's approval if:

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the service fails to provide child care for a continuous period of 3 months; ^[4] and

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none of the circumstances at paragraph 197G(1)(b) apply.

Item 7 repeals and substitutes subparagraphs 197G(1)(b)(ii) and (iii) to correct minor technical drafting errors as follows:

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the substituted subparagraph (b)(ii) clarifies that the determination made under section 195C (that the service need not operate for the period), must apply only to the service that the Secretary is considering removing from the provider's approval, and not to all the provider's services;

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the substituted subparagraph (b)(iii) clarifies that the Secretary must be satisfied that because of special circumstances, the provider's approval, should not be varied, and not cancelled.

This amendment commences immediately after the two subparagraphs it amends took effect. This retrospective commencement is appropriate given that this amendment is necessary to allow section 197G to operate effectively and fairly for both the Australian Government and approved providers. This amendment also gives effect to the original policy intention of the measure when paragraph 197G(1)(b) was amended under Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019.

Background to item 7

Section 197G of the Family Assistance Administration Act allows the Secretary to vary the approval of an approved provider to remove an approved child care service from the provider's approval if that service has failed to provide care for 3 continuous months. The effect of a service being removed from a provider's approval is that families can no longer receive CCS for care provided by the provider at that service and the provider will need to reapply for approval in respect of that service for that service to be able to provide care that is eligible for CCS.

Paragraph 197G(1)(b) sets out circumstances where although a service may not have been providing care for 3 continuous months, it is not appropriate for the service to be removed from the provider's approval; in other words where there is an appropriate reason for the service to not be providing care over the 3 month period and removal of approval in respect of the service is therefore not warranted. This is a protection for the provider. It also protects the interests of families that are enrolled with the service.

Prior to amendments to paragraph 197G(1)(b) that were made under the now enacted Building on the Child Care Package Bill, these circumstances, where non-operation for 3 months was appropriate, were:

i.

the service is subject to a determination under section 195C that the service need not operate for the period;

ii.

the Secretary is satisfied that, because of special circumstances affecting the service, the provider's approval should not be varied to remove the child care service from the approval. [Emphasis added]

The Building on the Child Care Package Bill amended the Family Assistance Administration Act to insert a new section 197AA, which gave the Secretary the power to suspend the approval of an approved provider, or the approval of the approved provider in respect of one or more of its services, at the provider's request (i.e. voluntary suspension) (item 17 of Schedule 2 to the Building on the Child Care Package Bill).

Consequently, in order to address this new circumstance, where it would be appropriate for a service to not be operating for 3 months, a consequential amendment was made to paragraph 197(1)(b) to repeal that paragraph and substitute a new paragraph that included voluntary suspension under section 197AA ((item 20 of Schedule 2 to the Building on the Child Care Package Bill). The circumstances in the new paragraph 197G(1)(b) were:

i.

the provider's approval with respect to the service is suspended under section 197AA for any part of the 3 month period;

ii.

all approved child care services of the provider are subject to a determination under section 195C that the service need not operate for the period;

iii.

ii. the Secretary is satisfied that, because of special circumstances affecting the provider, the provider's approval should not be cancelled. [Emphasis added]

Unfortunately, an error was made in the drafting of the new subparagraph 197G(1)(b)(ii). Instead of referring to the service (which was not operating for 3 months) being subject to a determination under section 195C, it referred to all approved child care services as needing to be subject to a determination under section 195C.

This drafting error:

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disadvantages providers, and families wishing to receive care at the service, as it means that even if the one service which was not operating for 3 months, and there was a determination under section 195C in place allowing this, the Secretary could still remove the service from the provider's approval, because all approved services of the provider did not have such a determination under section 195C in place (even though technically they would not need such a determination); and

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undermines the proper operation of section 197G, as logically it does not make sense.

Reason for retrospectivity

Item 7 to the Bill repeals subparagraphs 197G(1)(b)(ii) and (iii) and substitutes them with the following:

"(ii) the service is subject to a determination under section 195C that the service need not operate for the period;

(iii) the Secretary is satisfied that, because of special circumstances affecting the service, the provider's approval should not be so varied." [Emphasis added]

The amendment to subparagraph 197G(1)(b)(ii) under item 7 in practice merely repeals the reference to "all approved child care services of the provider" and replaces it with a reference to "the service" (which has not been operating for 3 months).

This amendment corrects the drafting error made to paragraph 197G(1)(b) in the Building on the Child Care Package Bill and returns the particular circumstance, which justifies why a service need not have been operating for the 3 month period, to the form that it was in prior to amendments made in the Building on the Child Care Package Bill.

This restores a necessary protection to providers and families receiving care at the service. It also enables the provision to operate effectively in a manner consistent with the long standing policy intention behind the provision.

Item 7 has the retrospective commencement date of 13 December 2019, being immediately after Schedule 2 to the Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019 commenced. This retrospective commencement date means that as soon as the erroneous paragraph 197G(1)(b) took effect, the correction to it under item 7 would also take effect.

This retrospective commencement date would thus ensure that there was no period of time in which:

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providers and families at their affected services could be disadvantaged by an unintentional drafting error; and

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the proper, fair and effective operation of the Family Assistance Administration Act could be undermined through the unintentional error.

It is noted that the retrospective commencement of item 7 has had no detrimental effect for any providers. Indeed, it would be of beneficial effect.

Item 8 reinserts the civil penalty amount of 50 penalty units, at the end of subsection 204K(6) of the Family Assistance Administration Act. This amount was inadvertently repealed when section 204K was amended under the Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019.

This amendment commences immediately after it was inadvertently repealed to ensure that there is no gap in the period of time that the civil penalty amount applies to subsection 204K(6). This retrospective commencement is appropriate given that the amendment reinstates what was previously in the legislation and was unintentionally repealed. It also ensures that there is certainty for the Australian Government, approved providers and individuals about the amount of the civil penalty that would apply if subsections 204K(1) or (3) were contravened. This is important given that section 204K imposes requirements on approved provided to give notice to appropriate State and Territory support agencies where a child is at risk of serious abuse or neglect.

Background to item 8

Section 204K of the Family Assistance Administration Act required an approved provider to give notice to an appropriate State/Territory body that the provider considered a child to be at risk of serious abuse or neglect:

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within 6 weeks after a certificate given to the Secretary under section 85CB of the Family Assistance Act that a child is or was at risk of serious abuse or neglect takes effect (subsection 204K(1));

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before applying for a determination under section 85CE of the Family Assistance Act in respect of a child being at risk of serious abuse or neglect (subsection 204K(3)).

The reason for the notification requirement is to ensure that the appropriate State/Territory bodies are made aware of the risk to the child and can work with the child's family to provide assistance to benefit the child's wellbeing, health and safety.

Failure by a provider to give the notification to the State/Territory body has been both an offence (60 penalty units) and civil penalty provision (50 penalty units) under subsection 204K(5) and (6) of the Family Assistance Administration Act respectively since section 204K was included in the Family Assistance Administration Act by the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 with effect from 2 July 2018. This recognises that failure by a provider to notify appropriate State/Territory bodies that a child is at risk of serious abuse or neglect could compromise the ability of the family to receive the appropriate help needed.

Item 81 of Schedule 1 of the Building on the Child Care Package Bill repealed section 204K and substituted a new section 204K. However, the only substantive, intentional change to section 204K was that the bodies formerly known as an 'appropriate State or Territory body' were renamed as 'appropriate State/Territory support agency'. This change in terminology was made to address confusion in the child care sector, where some child care providers had thought that the term referred only to a state or territory department or agency dealing with matters of child protection and did not realise that other support agencies were also included.

The drafting approach of repealing and substituting the whole of section 204K, despite the minimal substantive changes, was taken as the term 'appropriate State or Territory body' was used many times throughout the provision.

However, due to an unintentional drafting error, although subsection 204K(6) was still identified as a civil penalty provision, the civil penalty amount of 50 penalty units was inadvertently omitted.

This had the unintended consequence of creating uncertainty for providers, families, appropriate State/Territory support agencies and the Australia Government about the civil penalty consequences attached to a breach of subsections 204K(1) and (3). It also potentially undermined the safety and wellbeing of vulnerable children, who were at risk of serious abuse or neglect, as a failure by a provider to appropriately notify the appropriate State/Territory support agencies no longer attracted a clear civil penalty.

Reason for retrospectivity

Item 8 adds the civil penalty amount of 50 penalty units to the end of subsection 204K(6). The amendment merely reinstates the civil penalty amount that has been attached to breach of subsection 204K(1) and 204K(3) since these provisions took effect on 2 July 2018; and which were unintentionally repealed.

Item 8 has the retrospective commencement date of 16 December 2019, being immediately after Part 1 of Schedule 1 to the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 commenced. This retrospective commencement date means that as soon as the erroneous omission of the civil penalty amount in subsection 204K(1) took effect, the correction to reinsert in under item 8 would also take effect.

This retrospective commencement is appropriate as it:

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ensures that there is certainty for providers, families, appropriate State/Territory support agencies and the Australia Government about the civil penalty consequences attached to a breach of subsections 204K(1) and (3);

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promotes and facilitates the safety and wellbeing of vulnerable children at risk of serious abuse or neglect, by ensuring there is no uncertainty about, or gap in the application of an appropriate civil penalty amount, that applies where there has been a failure by a provider to appropriately notify the appropriate State/Territory support agencies;

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ensures that at all times the importance of a provider notifying appropriate State/Territory support agencies where a child is at risk of serious abuse or neglect is supported by the legislation through a clear and enforceable civil penalty provision;

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merely reinstates what was previously in the legislation, is the long standing policy intention behind the provision, and was unintentionally repealed.

It is noted that the retrospective commencement of item 8 has, to date, had no detrimental effect for any providers during the period 16 December 2019 to the present.