Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (22 of 2017)

Schedule 1   Main amendments

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

205   Parts 8 and 8A

Repeal the Parts, substitute:

Part 8 - Approval of provider of child care services

Division 1 - Provider approval

194A Application for approval

Application

(1) Any of the following (a provider ):

(a) an individual;

(b) a body corporate;

(c) a partnership;

(d) an entity or body prescribed by the Minister's rules;

may apply to be approved for the purposes of the family assistance law in respect of one or more child care services that the provider operates or proposes to operate.

(2) The application must:

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

(b) contain any information prescribed by the Secretary's rules; and

(c) contain any other information, and be accompanied by the documents, required by the Secretary.

(3) An application is taken not to have been made:

(a) if the application does not comply with subsection (2); or

(b) in circumstances prescribed by the Minister's rules.

194B Provider approval

Provider approval

(1) The Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied that:

(a) the provider satisfies the provider eligibility rules in section 194C; and

(b) the provider operates, or will operate, at least one child care service that satisfies the service eligibility rules in section 194D.

Approval in respect of child care service

(2) If the Secretary approves a provider under subsection (1), the Secretary:

(a) must approve the provider in respect of at least one child care service that meets the requirements in subsection (3); and

(b) may approve the provider in respect of one or more other child care services that meet the requirements in subsection (3).

(3) For a provider to be approved in respect of a child service, the Secretary must be satisfied that the service:

(a) is or will be operated by the provider; and

(b) satisfies the service eligibility rules in section 194D.

Notice of approval

(4) If the Secretary approves the provider, the Secretary must give notice to the provider stating:

(a) the child care services in respect of which the provider is approved; and

(b) the type and address of each service; and

(c) the day on which the provider's approval takes effect; and

(d) the day on which the provider's approval in respect of each child care service takes effect.

(5) For the purposes of subsections (1) and (2), the day on which the approval takes effect:

(a) must be:

(i) a Monday; or

(ii) if the Secretary considers it to be more appropriate - another day; and

(b) must not be earlier than the day the application was made.

Refusal

(6) The Secretary must refuse to approve a provider for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).

(7) The Secretary must refuse to approve a provider in respect of a child care service if the Secretary is not satisfied of one or more of the matters referred to in subsection (3) in respect of the service.

(8) If the Secretary refuses to approve a provider for the purposes of the family assistance law or refuses to approve the provider in respect of a child care service, the Secretary must give the applicant notice of:

(a) the refusal; and

(b) the reasons for the refusal.

194C Provider eligibility rules

A provider satisfies the provider eligibility rules if:

(a) for each child care service in respect of which the provider is seeking approval - the provider holds any approvals or licences required to operate a child care service under the law of the State or Territory in which the service is situated; and

(b) the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and

(c) any person with management or control of the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and

(d) any person who will be a person with management or control of the provider on the day the provider's approval takes effect, or the day the provider's approval in respect of a child care service takes effect, is a fit and proper person to be involved in the administration of CCS and ACCS; and

(e) for a large centre-based day care provider - the provider is financially viable and is likely to remain so; and

(f) the provider satisfies any other criteria prescribed by the Minister's rules.

Note: See section 194F for the definition of person with management or control .

194D Service eligibility rules

A child care service satisfies the service eligibility rules if:

(a) the service is of a type referred to in subclause 2(3) of Schedule 2 to the Family Assistance Act but is not any of the following:

(i) informal care provided through personal arrangements;

(ii) a service primarily conducted to provide instruction in an activity (such as sport or music);

(iii) a service primarily conducted to provide a disability or early intervention service;

(iv) a service where a parent primarily provides care or is readily available and retains responsibility for the child while the service is provided (such as a play group);

(v) a service primarily providing short-term irregular care at premises where the parent is a visitor or guest and the parent is readily available (such as a service provided by a gym);

(vi) a service that primarily provides an early educational program to children in the year that is 2 years before grade 1 of school (such as a preschool or kindergarten); and

(b) the provider of the service holds any approvals or licences required to operate the service under the law of the State or Territory in which the service is situated; and

(c) each person who is responsible for the day-to-day operation of the service (whether or not the person is employed by the provider of the service) is a fit and proper person to be involved in the administration of CCS and ACCS; and

(d) each person who will be responsible for the day-to-day operation of the service (whether or not the person is employed by the provider of the service) on the day that the provider's approval in respect of the service takes effect is a fit and proper person to be involved in the administration of CCS and ACCS; and

(e) in the case where the service is covered by allocation rules - if the provider of the service were to be approved, child care places would be allocated to the service under section 198B; and

(f) the Secretary is satisfied that it is appropriate for the provider to be approved in respect of the service having regard to the following:

(i) if the provider is already an approved provider - any conditions imposed on the provider's approval;

(ii) any non-compliance by the provider with a law of the Commonwealth or a State or Territory;

(iii) the provider's record of administering payments under the family assistance law;

(iv) the provider's record of administering of Commonwealth, State or Territory funds;

(v) the capacity for staff working at the service to use the electronic system for managing child care payments under the family assistance law;

(vi) any other matter prescribed by the Minister's rules;

(vii) any other matter the Secretary considers relevant; and

(g) the service satisfies any other criteria prescribed by the Minister's rules.

194E Fit and proper person considerations

(1) The Secretary must have regard to the following matters in determining whether a person is a fit and proper person for the purpose of paragraph 194C(b), (c) or (d) or 194D(c) or (d):

(a) any non-compliance by a relevant person with a law of the Commonwealth or a State or Territory;

(b) any proceedings currently before a court or tribunal that involve a relevant person;

(c) any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person;

(d) subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence;

(e) any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory;

(f) any act of a relevant person involving fraud or dishonesty;

(g) the arrangements the person has:

(i) to ensure the person complies with the family assistance law; and

(ii) to ensure anyone the person is responsible for managing complies with the family assistance law;

(h) the record of administering of Commonwealth, State or Territory funds of a relevant person;

(i) any debts to the Commonwealth incurred by a relevant person (whether or not the debt has been discharged);

(j) the record of financial management of a relevant person, including any instances of bankruptcy, insolvency or external administration involving the person;

(k) any other matter prescribed by the Minister's rules;

(l) any other matter the Secretary considers relevant.

(2) For the purposes subsection (1), a relevant person is:

(a) the person; and

(b) another person or body in respect of which the person is or has ever been a person with management or control.

Note: See section 194F for the definition of person with management or control .

194F Meaning of person with management or control

(1) A person is a person with management or control of a body, if the person is any of the following:

(a) a member of the group of persons responsible for the executive decisions of the body;

(b) a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the body;

(c) a person who is responsible for the day-to-day operation of the body (whether or not the person is employed by the body);

(d) a person who is responsible for the day-to-day operation of a child care service in respect of which the body is approved or is seeking to be approved (whether or not the person is employed by the body).

(2) Without limiting paragraph (1)(a), the following persons are taken to be members of the group referred to in that paragraph:

(a) if the body is a body corporate - an officer of the body corporate (within the meaning of the Corporations Act 2001);

(b) if the body is a partnership - a partner;

(c) in any other case - a member of the body's governing body.

194G Meaning of approved child care service

(1) A child care service is an approved child care service if an approved provider is approved in respect of the service under this Division and that approval is in effect.

(2) If the approved provider's approval under this Division is suspended or suspended in respect of the service, the service is not an approved child care service at any time when the suspension is in effect.

194H Obligations and permissions of an approved child care service are those of the approved provider

For the purposes of the family assistance law:

(a) an obligation imposed by that law on an approved child care service is taken to be imposed on the approved provider of the service; and

(b) a permission conferred by that law on an approved child care service is taken to be conferred on the approved provider of the service.

Division 2 - Conditions for continued approval

195A Conditions for continued approval - compliance with rules and law

Continued satisfaction of eligibility rules

(1) It is a condition for continued approval of an approved provider that:

(a) the provider continues to satisfy the provider eligibility rules in section 194C; and

(b) each approved child care service of the provider continues to satisfy the service eligibility rules in section 194D.

Compliance with family assistance law

(2) It is a condition for continued approval of an approved provider that the provider not contravene the family assistance law (whether or not the contravention constitutes an offence or is a contravention of a civil penalty provision).

Note: Enforcement under this Part of this and other conditions is not limited or affected by other compliance measures in relation to these provisions (for example under the Regulatory Powers Act).

(3) It is a condition for continued approval of an approved provider that the provider cooperate with a person exercising powers under:

(a) section 67FH (power to require information about children enrolled in child care); and

(b) section 154 (power to obtain information generally); and

(c) the Regulatory Powers Act in respect of a provision mentioned in subsection 219UA(1), or information mentioned in subsection 219UA(2), of this Act.

Compliance with Commonwealth, State and Territory laws

(4) It is a condition for continued approval of an approved provider that:

(a) the operation of each approved child care service of the provider; and

(b) the provision of care by each service;

comply with all requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the service is situated.

195B Conditions for continued approval - child care places limit not to be exceeded

It is a condition for continued approval of an approved provider that, if an approved child care service of the provider is covered by the allocation rules:

(a) the service provides child care places; and

(b) the service provides no more child care places than the number allocated to the service.

195C Conditions for continued approval - operating period for each approved child care service

(1) It is a condition for continued approval of an approved provider that each child care service of the provider operates for the period determined in accordance with this subsection (the minimum period ).

(2) Subject to subsections (3) and (4), the minimum period is:

(a) 48 weeks per year; or

(b) if the service is an outside school hours care service - 7 weeks per year.

(3) If the Minister's rules prescribe an alternative period for a service and subsection (4) does not apply, then the minimum period for the service is the period prescribed by the Minister's rules.

(4) If the Secretary is satisfied that due to special circumstances affecting a service it is appropriate for the service to operate for a shorter period, the minimum period for the service is the number of weeks per year (which may be nil) that the Secretary determines, in writing, to be appropriate.

195D Conditions for continued approval - working with children card

(1) It is a condition for continued approval of an approved provider that, for each individual required to hold a working with children card in relation to care provided by a child care service of the provider, the provider give the Secretary details of the card issued to the individual.

(2) For the purposes of subsection (1), a working with children card is a card that permits the individual to work with children under the law of the State or Territory in which the service is situated.

195E Condition for continued approval - compliance with conditions imposed by Minister

It is a condition for continued approval of an approved provider that the provider complies with any conditions prescribed by the Minister's rules in respect of the provider or an approved child care service of the provider.

195F Condition for continued approval - compliance with conditions imposed by Secretary

(1) It is a condition for continued approval of an approved provider that the provider complies with any conditions imposed on the provider under subsection (2).

(2) The Secretary may impose conditions in respect of:

(a) an approved provider; or

(b) one or more approved child care services of a provider.

(3) If the Secretary imposes a condition, the Secretary must give notice of the condition to the approved provider. The notice must specify the day the condition takes effect.

(4) A notice given under subsection (3) is not a legislative instrument.

195G Reassessment of continued approval

The Secretary may at any time assess whether a provider is complying with the conditions for continued approval of the provider.

195H Consequences of breach of conditions for continued approval

Sanctions

(1) If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may do one or more of the following:

(a) suspend the provider's approval;

(b) cancel the provider's approval;

(c) suspend the provider's approval in respect of one or more child care services;

(d) vary the provider's approval so that the provider is not approved in respect of one or more child care services;

(e) reduce the number of any child care places allocated to the service under section 198B;

(f) suspend, for a maximum of 3 weeks, payments under section 67EB of fee reduction amounts in respect of sessions of care provided by one or more approved child care services of the provider.

Note 1: The Secretary may also decide to vary or impose additional conditions under subsection 195F(2).

Note 2: Before doing a thing mentioned in paragraphs (a) to (f), the Secretary must follow the procedure in section 199A.

(2) In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in applying the subsection to approved providers.

Notice of sanction

(3) If the Secretary does any of the things mentioned in subsection (1), the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the thing takes effect (which must be not earlier than the day the notice is given).

Revocation of suspension

(4) If the Secretary suspends the provider's approval or suspends the provider's approval in respect of one or more child care services, the Secretary may at any time revoke the suspension.

(5) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).

(6) In exercising a power under subsection (4), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in specifying the day of effect of a revocation of a suspension.

Revocation of suspension of payment in respect of fee reduction

(7) If the Secretary suspends payment in respect of fee reduction, the Secretary may at any time revoke the suspension. If the suspension is revoked, all payments under section 67EB that would have been paid but for the suspension must be paid.

(8) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).

Division 3 - Adding or removing services

196A Application to add or remove service

(1) An approved provider may apply for a variation of the provider's approval to add a child care service to, or remove a child care service from, the provider's approval.

(2) The application must:

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

(b) contain any information prescribed by the Secretary's rules; and

(c) contain any other information, and be accompanied by the documents, required by the Secretary.

(3) An application is taken not to have been made:

(a) if the application does not comply with subsection (2); or

(b) in circumstances prescribed by the Minister's rules.

196B Adding a service on application

Variation

(1) If:

(a) an approved provider applies under section 196A to add a child care service to the provider's approval; and

(b) the Secretary is satisfied that the service satisfies the requirements in subsection 194B(3);

the Secretary may vary the provider's approval by adding the service to the approval as a service in respect of which the provider is approved.

Notice of approval

(2) If the Secretary varies the provider's approval, the Secretary must give notice to the provider stating:

(a) the child care services in respect of which the provider is approved as a result of the variation; and

(b) the type and address of each service; and

(c) the day on which the provider's approval in respect of each child care service takes effect.

(3) For the purposes of paragraph (2)(c), the day on which the approval takes effect must be a Monday. The day must not be earlier than the day the application was made.

Refusal

(4) If the Secretary is not satisfied of the matter referred to in paragraph (1)(b), the Secretary must refuse the application.

(5) If the Secretary refuses the application, the Secretary must give the applicant notice of:

(a) the refusal; and

(b) the reasons for the refusal.

196C Removing a service on application

Variation

(1) If an approved provider applies under section 196A to remove a child care service from the provider's approval, the Secretary may vary the provider's approval by removing the service from the approval as a service in respect of which the provider is approved.

(2) The Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the variation was made).

Refusal

(3) If the Secretary refuses the application, the Secretary must give the applicant notice of:

(a) the refusal; and

(b) the reasons for the refusal.

Secretary to have regard to prescribed matters

(4) In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in deciding whether to grant a request under subsection (1).

Division 4 - Suspension, variation and cancellation of approval

197A Immediate suspension

(1) The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if the Secretary reasonably believes that:

(a) the provider is not complying with subsection 195A(4) (compliance with Commonwealth, State and Territory laws); or

(b) there is an imminent threat to the health or safety of a child because of the care provided by an approved child care service of the provider; or

(c) due to urgent circumstances, it is no longer appropriate for one or more approved child care services of the provider to provide child care; or

(d) due to urgent circumstances, it is no longer appropriate for the provider to administer payments under the family assistance law.

(2) If the Secretary suspends the provider's approval or suspends the provider's approval in respect of one or more services, the Secretary must give the provider notice of:

(a) the day the suspension takes effect (which must not be earlier than the day the notice is given); and

(b) the grounds for the suspension.

(3) The Secretary may revoke the suspension.

(4) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).

197B Suspension for multiple infringement notices

(1) The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if:

(a) the provider has been given 10 infringement notices under Part 5 of the Regulatory Powers Act in respect of contraventions of civil penalty provisions of this Act within a period of 12 months; or

(b) the provider has been given 5 infringement notices under Part 5 of the Regulatory Powers Act in respect of contraventions of civil penalty provisions of this Act within a period of 12 months and the time for paying the penalty specified in each such notice has ended, without the penalty being paid.

(2) If the Secretary suspends the provider's approval or suspends the provider's approval in respect of one or more services, the Secretary must give the provider notice of:

(a) the day the suspension takes effect (which must not be earlier than the day the notice is given); and

(b) the grounds for the suspension.

(3) The Secretary may revoke the suspension.

(4) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).

197C Cancellation on request

(1) The Secretary may cancel the approval of an approved provider if the provider requests the Secretary in writing to do so.

(2) In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister's rules as matters to be taken into account by the Secretary in deciding whether to grant the request under subsection (1).

(3) If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).

197D Cancellation if provider should not have been approved

(1) The Secretary must cancel the approval of an approved provider if the Secretary is satisfied that, at the time the provider was approved, the provider did not satisfy the requirements in subsection 194B(1).

(2) If the Secretary cancels the provider's approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).

Note: Before cancelling the approval the Secretary must follow the procedure in section 199A.

197E Variation if provider should not have been approved in respect of a service

(1) The Secretary must vary the approval of an approved provider so that the provider is not approved in respect of a child care service if the Secretary is satisfied that, at the time the provider was approved in respect of the service, the service did not satisfy the requirements in subsection 194B(3).

(2) If the Secretary varies the provider's approval by removing the service from the approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).

Note: Before varying the approval the Secretary must follow the procedure in section 199A.

197F Cancellation for failure of provider to provide care for 3 continuous months

(1) The Secretary may cancel the approval of an approved provider if:

(a) all approved child care services of the provider fail to provide child care for a continuous period of 3 months; and

(b) neither of the following apply:

(i) 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;

(ii) the Secretary is satisfied that, because of special circumstances affecting the provider, the provider's approval should not be cancelled.

(2) If the Secretary cancels the provider's approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).

(3) Before cancelling the provider's approval, the Secretary must request, in writing, that the provider provide within 14 days evidence that the provider is operating a child care service.

(4) The Secretary must have regard to any response to the request in deciding whether to cancel the approval.

197G Variation for failure of service to provide care for 3 continuous months

(1) The Secretary may vary the approval of an approved provider to remove an approved child care service from the approval if:

(a) the service fails to provide child care for a continuous period of 3 months; and

(b) neither of the following apply:

(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 so varied.

(2) If the Secretary varies the provider's approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).

(3) Before varying the provider's approval, the Secretary must request, in writing, that the provider provide, within 14 days, evidence that the provider is operating the service.

(4) The Secretary must have regard to any response to the request in deciding whether to vary the approval.

197H Cancellation for ceasing to operate any approved child care service

(1) The Secretary must cancel the approval of an approved provider if the provider ceases to operate all the approved child care services of the provider.

(2) If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).

197J Variation for ceasing to operate a child care service

(1) The Secretary must vary the approval of an approved provider to remove an approved child care service from the approval if the provider ceases to operate the service.

(2) If the Secretary varies the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the notice is given).

197K Cancellation because no longer approved in respect of any child care service

(1) The approval of an approved provider is taken to be cancelled if there are no longer any child care services in respect of which the provider is approved.

(2) If the approval is cancelled under this section, the Secretary must give notice to the provider of the cancellation. The notice must specify the day the cancellation takes effect.

Division 5 - Allocation of child care places

198A Allocation of child care places to approved child care services

The Minister's rules may prescribe the following (the allocation rules ):

(a) procedures relating to the allocation of child care places to approved child care services;

(b) matters to be taken into account in working out the number (if any) of child care places to be allocated to approved child care services;

(c) child care services subject to the allocation rules;

(d) the maximum number of places that can be allocated to approved child care services in a specified class;

(e) any other matters to be taken into account in making such an allocation;

(f) procedures relating to the reduction under section 198C of the number of child care places allocated to approved child care services;

(g) matters to be taken into account in working out the number of child care places by which the number of child care places allocated to approved child care services may be reduced under section 198C;

(h) any other matters to be taken into account in reducing, or deciding whether to reduce, under section 198C the number of child care places allocated to approved child care services.

198B Secretary to allocate child care places

Initial allocation of child care places

(1) If an approved child care service is subject to the allocation rules, the Secretary must allocate child care places to the service in accordance with the rules.

Additional allocation of child care places

(2) If an approved child care service has been allocated a number of child care places, the approved provider of the service may apply to the Secretary for additional child care places.

(3) The application must:

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

(b) contain any information prescribed by the Secretary's rules; and

(c) contain any other information, and be accompanied by the documents, required by the Secretary.

(4) The Secretary must decide, in accordance with the allocation rules, whether or not to grant the application.

(5) The Secretary must give the applicant notice of the decision under subsection (4).

(6) If the Secretary decides to grant the application, the Secretary must allocate the additional child care places to the service.

198C Reduction of allocation of child care places by unused or unusable places

(1) The Secretary may reduce, in accordance with the allocation rules, the number of child care places allocated to an approved child care service if:

(a) that number exceeds the number of child care places provided by the service; or

(b) that number exceeds the number of child care places that the service is, under a law of a State or Territory, licensed to provide.

The reduction must not be greater than the number of excess places.

(2) Before the reduction, the Secretary must (unless the provider has informed the Secretary in writing that the allocated number may be reduced) give a notice to the approved provider of the service that:

(a) states that the Secretary proposes to make the reduction; and

(b) states the number of places by which the Secretary proposes to reduce the number of places allocated to the service; and

(c) invites the provider to make written submissions to the Secretary about the proposed reduction; and

(d) is not inconsistent with the allocation rules.

(3) If the approved provider of the service has informed the Secretary in writing that the number of child care places allocated to the service may be reduced, the Secretary may give the provider a notice under subsection (2) before making the reduction.

(4) The Secretary must have regard to any submissions made by the approved provider of the service in accordance with an invitation under paragraph (2)(c) in deciding whether to make the reduction.

(5) If the Secretary reduces the number of child care places allocated to an approved child care service, the Secretary must give the approved provider of the service a notice that states:

(a) the number of places by which the number of places allocated to the service is reduced; and

(b) the day on which the reduction takes effect, which must not be earlier than the day on which the notice is given; and

(c) the number of places allocated to the service, taking account of the reduction.

Division 6 - Miscellaneous

199A Procedure before certain consequences apply

(1) Before doing a thing mentioned in subsection 195H(1) or section 197D or 197E, the Secretary must give a notice to the provider concerned that:

(a) states that the Secretary is considering doing the thing; and

(b) sets out the grounds for doing the thing; and

(c) summarises the evidence and other material on which those grounds are based; and

(d) summarises the effect of doing of the thing on eligibility for CCS or ACCS in respect of a session of care provided by an approved child care service of the provider; and

(e) summarises the provider's rights under this Act to seek a review of the decision to do the thing; and

(f) invites the provider to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.

(2) The Secretary must have regard to any submissions made by the provider in accordance with an invitation under paragraph (1)(f) in deciding whether to do the thing.

199B Publicising sanctions or suspensions

(1) If any of the following events occur, the Secretary may publicise the event in any way the Secretary thinks appropriate:

(a) the Secretary does one or more of the things mentioned in subsection 195H(1);

(b) the Secretary suspends the approval of an approved provider under subsection 197A(1);

(c) a person is ordered by a court to pay a pecuniary penalty in relation to a civil penalty provision of this Act;

(d) a person is convicted of an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act).

(2) Without limiting subsection (1), the Secretary may publicise information that includes the following:

(a) the name of the provider;

(b) the name and address of an approved child care service or former approved child care service of the provider;

(c) if the information relates to the doing of one or more of the things mentioned in subsection 195H(1):

(i) the things done; and

(ii) the day when each thing done takes effect; and

(iii) each condition for continued approval of the provider with which the provider has not complied, or is not complying; and

(iv) the day (if any) when each thing done ceases to have effect;

(d) if the information relates to a suspension under subsection 197A(1):

(i) the day when the suspension takes effect; and

(ii) the grounds for the suspension; and

(iii) the day (if any) when the suspension ceases to have effect.

199C Notice to Secretary of matters affecting approval

(1) An approved provider must give the Secretary written notice of the following matters as soon as practicable after the provider becomes aware of the matter:

(a) the provider did not satisfy the requirements in subsection 194B(1) at the time the provider became approved;

(b) a service in respect of which the provider is or was approved did not satisfy the requirements in subsection 194B(3) at the time the provider became approved in respect of the service;

(c) the provider has not complied, or is not complying, with a condition for continued approval of the provider.

Note: Section 204F also requires an approved provider to notify the Secretary of certain matters.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 80 penalty units.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

199D Notice to provider of review rights for decisions under this Part

If the Secretary is required by a provision of this Part to give a provider notice of a decision, the notice must include a statement of the provider's rights under this Act to seek a review of the decision.

199E Notifying individuals about effect on eligibility

(1) If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected if the Secretary were to cancel, suspend or vary the provider's approval because of the Secretary being so satisfied.

(2) A notice under subsection (1) must:

(a) state that the Secretary is satisfied that the provider has not complied, or is not complying, with a condition for continued approval of the provider; and

(b) set out the effect on the individual's eligibility if the Secretary were to cancel, suspend or vary the provider's approval.

The notice may set out any other information that the Secretary thinks relevant.

(3) If the Secretary cancels, suspends or varies the provider's approval under this Part, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected because of that action.

(4) A notice under subsection (3) must:

(a) state that the Secretary has cancelled, suspended or varied the provider's approval; and

(b) set out the effect of the action on the individual's eligibility.

The notice may set out any other information that the Secretary thinks relevant.

(5) A notice under this section must be given in a form and manner approved by the Secretary.

199F Certain providers not required to comply with requirements

If the Minister's rules specify the provider of a child care service for the purposes of this section:

(a) the provider is not required to satisfy paragraph 194C(a) in order to satisfy the provider eligibility rules; and

(b) the provider is not required to satisfy or comply with any other provision prescribed by the Minister's rules in order to become, or remain, approved for the purposes of the family assistance law.

199G Minister's rules in relation to backdating of approvals etc.

(1) The Minister's rules may prescribe modifications of this Act or the Family Assistance Act to apply in respect of the following persons and periods:

(a) approved providers whose approval takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval takes effect, and ending when the Secretary gives the notice;

(b) approved providers whose approval in respect of a child care service takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval in respect of the service takes effect and ending when the Secretary gives the notice;

(c) providers whose approval, or approval in respect of a child care service, is suspended, for the period of the suspension;

(d) approved providers whose suspension is revoked with effect from a day earlier than the day the Secretary gives the provider notice of the revocation, for the period starting when the revocation takes effect and ending when the Secretary gives the notice.

(2) Subsection (1) does not limit subsection 85GB(1) of the Family Assistance Act.

Part 8A - Provider requirements and other matters

Division 1 - Requirements in relation to enrolments and relevant arrangements

200A Enrolment notices

Notice if a child starts to be enrolled

(1) An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if a child starts to be enrolled for care by the service.

Notice if a child starts to be enrolled before approval given or during suspension of approval

(2) An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if:

(a) on the day a child starts to be enrolled for care by the service:

(i) the provider is not approved, or not approved in respect of the service; or

(ii) the provider's approval, or approval in respect of the service, is suspended; and

(b) after that day, the Secretary gives the provider notice:

(i) that the provider has been approved, or approved in respect of the service; or

(ii) that the suspension has been revoked; and

(c) the child is enrolled for care by the service on any day on or after the day the approval or revocation takes effect.

Notice if relevant arrangement entered into

(3) An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if the provider and an individual enter into an arrangement (a relevant arrangement ) other than a complying written arrangement for the service to provide care to a child.

Content and timing of notices

(4) A notice is given in accordance with this subsection if:

(a) it is given in a form and manner approved by the Secretary; and

(b) it contains the information required by the Secretary; and

(c) for a notice under subsection (1) - it is given by the later of:

(i) 7 days after the end of the week in which the child started to be enrolled; or

(ii) if the child started to be enrolled in a period, or a series of consecutive periods, to which a payment under section 205A relates - 7 days after the end of the period, or the last such period; and

(d) for a notice under subsection (2) - it is given no later than 7 days after the end of the week in which the Secretary gave the notice referred to in paragraph (2)(b); and

(e) for a notice under subsection (3) - it is given no later than 7 days after the end of the week in which the relevant arrangement is entered into.

Offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).

Penalty: 60 penalty units.

Civil penalty

(6) A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).

Civil penalty: 30 penalty units.

200B When a child is enrolled

(1) A child:

(a) starts to be enrolled for care by a child care service of a provider if:

(i) the provider and an individual enter into a complying written arrangement for the service to provide care to the child; or

(ii) the service provides care to the child in the circumstances referred to in subsection (4); and

(b) ceases to be enrolled for care by that service when the earliest of the following events happens:

(i) for an enrolment that started as referred to in subparagraph (a)(i) - the arrangement ends;

(ii) for an enrolment that started as referred to in subparagraph (a)(ii) - the care ceases to be provided in those circumstances;

(iii) 8 weeks have passed since the child last attended any of the service's sessions of care;

(iv) an event prescribed by the Minister's rules.

(2) A child is enrolled for care by a service from the day the child starts to be enrolled until the child ceases to be enrolled. To avoid doubt, a child who ceases to be enrolled for care by a service is not enrolled for care by that service until the child starts to be enrolled for care by that service again.

(3) A written arrangement between a provider and an individual is a complying written arrangement if the arrangement complies with the requirements prescribed by the Secretary's rules.

(4) A service provides care to a child in the circumstances referred to in this subsection if:

(a) immediately before the service starts to provide the care, the child is not enrolled for care by the service; and

(b) any of the following applies in relation to the week in which the service starts to provide the care:

(i) a certificate given by the approved provider of the service under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;

(ii) a determination made by the Secretary under section 85CE (determination for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;

(iii) the approved provider of the service has applied for a determination under section 85CE of the Family Assistance Act and the application has not been refused; and

(c) the provider gives the Secretary a declaration referred to in paragraph 67CH(1)(c) in relation to sessions of care provided by the service to the child.

200C Variation of complying written arrangements

An approved provider must ensure that a variation of a complying written arrangement to which the provider is a party is done in writing, if the variation:

(a) has the effect that information in the enrolment notice given by the provider for the child to whom the arrangement relates becomes incorrect; or

(b) relates to a matter prescribed by the Minister's rules.

Civil penalty: 30 penalty units.

200D Updates in relation to enrolled children

(1) An approved provider must give the Secretary notice in accordance with subsection (3) of the following events in relation to complying written arrangements or relevant arrangements to which the provider is a party and enrolment notices given by the provider:

(a) a complying written arrangement is varied in a way that:

(i) has the effect that information in the enrolment notice given in relation to a child becomes incorrect; or

(ii) relates to a matter prescribed by the Minister's rules for the purposes of paragraph 200C(b);

(b) information in an enrolment notice otherwise becomes incorrect;

(c) information becomes available that, had it been available when an enrolment notice was given, should have been included in the notice;

(d) information becomes available that, had it been available when an enrolment notice was given, would have required the notice to be given in a different form;

(e) a child for whom an enrolment notice has been given ceases to be enrolled for care by the service for the reason mentioned in subparagraph 200B(1)(b)(i) (complying written arrangement ends);

(f) a relevant arrangement in relation to a child has ended.

(2) An approved provider must give the Secretary a notice in accordance with subsection (3) if:

(a) on the day an event referred to in subsection (1) happens, the provider's approval, or approval in respect of the service, is suspended; and

(b) after that day, the Secretary gives the provider notice that the suspension has been revoked; and

(c) the child is enrolled for care by the service on any day on or after the day the revocation takes effect.

(3) A notice under subsection (1) or (2) is given in accordance with this subsection if it is given:

(a) in a form and manner approved by the Secretary; and

(b) for a notice under subsection (1) - no later than the later of:

(i) 7 days after the day the event happened; and

(ii) if the event happened in a period, or a series of consecutive periods, to which a payment under section 205A relates - 7 days after the end of the period, or the last such period; and

(c) for a notice under subsection (2) - no later than 7 days after the Secretary gave the notice referred to in paragraph (2)(b).

Offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 30 penalty units.

Division 2 - Requirements in relation to CCS and ACCS by fee reduction

201A Requirement to pass on fee reduction amount to individual entitled to be paid CCS or ACCS

Requirement to pass on or remit to Secretary fee reduction amount

(1) A provider to whom a notice is givenof a fee reduction decision for an individual must, no later than 14 days after the notice is given:

(a) pass on the fee reduction amount for the decision to the individual; or

(b) if it is not reasonably practicable to do so - remit the fee reduction amount to the Secretary, in a manner approved by the Secretary.

(2) Subsection (1) does not apply in relation to a notice that includes a statement to the effect that the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2).

Note 1: See subsections 67CE(6), 106A(3), 109B(2B) and 136(3).

Note 2: In a prosecution for an offence under subsection (3), a defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 80 penalty units.

Civil penalty

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

Passing on

(5) A provider may pass on a fee reduction amount by reducing fees or in any other way. As long as the individual receives the benefit of the fee reduction amount from the provider:

(a) the provider is taken to have passed on the fee reduction amount; and

(b) the individual is taken to have been paid an amount of CCS or ACCS equal to the amount of the fee reduction amount.

Notice of remittal

(6) A provider that remits an amount in accordance with paragraph (1)(b) must give the Secretary written notice of the remittance:

(a) in a form and manner approved by the Secretary; and

(b) including any information required by the Secretary.

The provider's notice must be given no later than 14 days after the notice of the fee reduction decision is given.

201B Enforcing payment of hourly session fees

Duty to enforce payment of hourly session fees

(1) A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a service to a child in a week, must take all reasonable steps to ensure that the individual pays the provider the difference between:

(a) the total of the hourly session fees for all sessions of care provided by the service to the child in the week to which the decision relates; and

(b) the fee reduction amount for the decision.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 80 penalty units.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

201C Charging no more than usual hourly session fee

Duty to charge no more than usual hourly session fee

(1) The approved provider of a child care service must not charge an individual who is eligible for ACCS for a session of care provided by the service an hourly session fee that exceeds the hourly session fee the provider would ordinarily charge an individual who is eligible for CCS for the session of care.

Offence

(2) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 80 penalty units.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 60 penalty units.

201D Requirement to give individuals statements of entitlement

(1) This section applies if a provider is given a notice under subsection 67CE(4) of a determination made under section 67CD for an individual for a week, in relation to sessions of care provided to a child by an approved child care service of the provider.

(2) The provider must give the individual a written statement in accordance with subsection (3) for the statement period that includes the week.

(3) A statement is given in accordance with this subsection if:

(a) it includes the following:

(i) the start and end dates of the statement period;

(ii) the hourly session fee for each session of care provided by the service to the child in the statement period;

(iii) the total of the fee reduction amounts for the fee reduction decisions for the individual of which the provider was given notice for the weeks in the statement period;

(iv) any other information prescribed by the Secretary's rules; and

(b) it is given no later than 7 days after the day the provider is required to give a report under section 204B (requirement to report about children for whom care is provided) for the last week in the statement period.

(4) If the Secretary's rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary's rules, by the time prescribed by the Secretary's rules.

Offence

(5) A person commits an offence of strict liability if the person contravenes subsection (2) or (4).

Penalty: 60 penalty units.

Civil penalty

(6) A person is liable to a civil penalty if the person contravenes subsection (2) or (4).

Civil penalty: 30 penalty units.

(7) A statement period is:

(a) a CCS fortnight; or

(b) if the Secretary's rules prescribe a different period - the prescribed period.

201E Statements following changes of entitlement

(1) This section applies if a provider is given notice under subsection 106A(2) or 109B(2A) of a decision on review that varies, or substitutes a new determination for, a determination made under section 67CD for an individual for a week.

(2) The provider must:

(a) if it is reasonably practicable to do so - give the individual a written statement in accordance with subsection (3); and

(b) otherwise - notify the Secretary that it is not reasonably practicable for the provider to do so and comply with any requirements prescribed by the Secretary's rules in the circumstances.

(3) A statement is given in accordance with this subsection if:

(a) it does either of the following:

(i) it is given in accordance with subsection 201D(3) taking into account the effect of the decision on review;

(ii) it identifies the statement given under subsection 201D(2) in relation to the determination to which the review related and updates it to take into account the effect of the decision on review; and

(b) it is given no later than the end of the statement period immediately after the statement period in which the provider was given the notice referred to in subsection (1).

(4) If the Secretary's rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary's rules, by the time specified in the Secretary's rules.

Offence

(5) A person commits an offence of strict liability if the person contravenes subsection (2) or (4).

Penalty: 60 penalty units.

Civil penalty

(6) A person is liable to a civil penalty if the person contravenes subsection (2) or (4).

Civil penalty: 30 penalty units.

Division 3 - Requirements in relation to records

202A Requirement to make records

(1) An approved provider must make a written record of information or an event of which it becomes aware if:

(a) the provider would not otherwise have a written record of the information or event; and

(b) the information or event relates to any of the following:

(i) an individual's eligibility for CCS or ACCS;

(ii) the eligibility of an approved child care service of the provider for ACCS (child wellbeing);

(iii) the provider's compliance with the conditions for continued approval of the provider;

(iv) any other matter prescribed by the Secretary's rules.

Offence

(2) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 50 penalty units.

202B Requirement to keep records

Requirement to keep records

(1) An approved provider must keep records, in accordance with the Secretary's rules, of information and events in relation to the following matters:

(a) an individual's eligibility for CCS or ACCS;

(b) the eligibility of an approved child care service of the provider for ACCS (child wellbeing);

(c) the provider's compliance with the conditions for continued approval of the provider;

(d) any other matter prescribed by the Secretary's rules.

Duration of record-keeping

(2) An approved provider must keep the records referred to in subsection (1) until at least:

(a) the end of the period of 7 years starting at the end of the financial year in which the care to which the information or event relates was provided; or

(b) the later time ordered by a court during proceedings for an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act) or for the contravention of a civil penalty provision, if an application for the order was made during:

(i) the period referred to in paragraph (a); or

(ii) proceedings relevant to a previous application of this paragraph.

Offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1) or (2).

Penalty: 60 penalty units.

Civil penalty

(4) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).

Civil penalty: 50 penalty units.

202C Requirement to keep records in relation to certification for ACCS (child wellbeing)

If a certificate is given

(1) If an approved provider gives the Secretary a certificate under section 85CB of the Family Assistance Act, the provider must:

(a) no later than 6 weeks after the day the certificate takes effect, obtain and make a record of:

(i) evidence to support the provider's view that the child concerned is or was at risk of serious abuse or neglect; and

(ii) evidence that the provider has given an appropriate State/Territory body notice in accordance with section 204K; and

(b) keep those records for at least the period of 7 years starting at the end of the financial year in which the certificate ceases to have effect.

If certificate is cancelled

(2) If an approved provider:

(a) cancels a certificate under section 85CC of the Family Assistance Act (whether or not the provider gives a replacement certificate within the meaning of that section); or

(b) gives the Secretary a notice under section 67FC (child not at risk of serious abuse or neglect);

the provider must:

(c) no later than 6 weeks after the day the provider cancels the certificate or gives the notice, obtain and make a record of evidence to support the provider's view that the child is not at risk of serious abuse or neglect for the period concerned; and

(d) keep those records for at least the period of 7 years starting at the end of the financial year in which the provider cancelled the certificate or gave the notice.

Offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1) or (2).

Penalty: 80 penalty units.

Civil penalty

(4) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).

Civil penalty: 60 penalty units.

202D Requirement to keep Secretary informed about location of records after suspension or cancellation

Notice of location at which records are kept

(1) If, with effect from a particular day (the effective day ), the approval of a provider is:

(a) cancelled or suspended; or

(b) varied to remove a child care service from the approval; or

(c) suspended in respect of a child care service;

the provider must keep the Secretary informed, in accordance with subsection (2), of the location at which the provider's records, or the provider's records for the service, are kept.

(2) The provider must keep the Secretary informed by giving the Secretary written notice of the location:

(a) no later than 14 days after the effective day; and

(b) if the records are moved from the notified location - no later than 14 days after the move.

(3) If a suspension of a provider's approval is revoked, subsection (1) ceases to apply to the provider from the day the revocation takes effect.

(4) If a suspension of a provider's approval in respect of a child care service is revoked, subsection (1) ceases to apply to the provider in relation to the service from the day the revocation takes effect.

Offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 50 penalty units.

Division 4 - Requirements relating to large centre-based day care providers

203A Secretary may require financial information relating to large centre-based day care providers

Notice requiring financial information

(1) The Secretary may, by written notice given in accordance with subsection (2), require a person referred to in section 203B to provide financial information in relation to the financial year in which the notice is given or any one or more of the 4 previous financial years, if:

(a) the information is for the purposes of determining whether a large centre-based day care provider is financially viable and likely to remain so; and

(b) the Secretary reasonably believes that the person is capable of giving the information.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

(2) A notice is given in accordance with this subsection if:

(a) it specifies the financial information required; and

(b) it specifies the period by which and the manner in which the person must comply with the notice.

Civil penalty for non-compliance

(3) A person must comply with a notice given to the person under subsection (1).

Civil penalty: 60 penalty units.

(4) Subsection (3) does not apply to a person registered under the Australian Charities and Not-for-profits Commission Act 2012 to the extent that:

(a) the notice under subsection (1) requires the person to provide particular financial information to the Secretary; and

(b) the person has provided, or provides, that particular financial information to the Commissioner within the meaning of that Act before the end of the period specified under paragraph (2)(b).

Disclosure of personal information

(5) For the purposes of:

(a) paragraph 6.2(b) of Australian Privacy Principle 6; and

(b) a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;

the disclosure of personal information by a person in response to a notice given under this section is taken to be a disclosure that is authorised by this Act.

203B Persons to whom a financial information notice may be given

The persons to whom a notice under subsection 203A(1) in relation to a large centre-based day care provider may be given are the following:

(a) the provider;

(b) a person who, at any time during the financial year, owns 15% or more of:

(i) the provider; or

(ii) if the provider consists of more than one person - any of those persons;

(c) a person who, at any time during the financial year, is entitled to receive 15% or more of the dividends paid by:

(i) the provider; or

(ii) if the provider consists of more than one person - any of those persons;

(d) a person who, at any time during the financial year, is owed a debt by the provider;

(e) a person who:

(i) acts, or is accustomed to act; or

(ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

in accordance with the directions, instructions or wishes of, or in concert with:

(iii) the provider; or

(iv) if the provider consists of more than one person - any of those persons;

(f) a person who directs or instructs:

(i) the provider; or

(ii) if the provider consists of more than one person - any of those persons;

to act in accordance with those directions or instructions;

(g) a person, if:

(i) the provider; or

(ii) if the provider consists of more than one person - any of those persons;

acts, or is accustomed to act, so as to give effect to the first-mentioned person's wishes;

(h) a person with whom:

(i) the provider; or

(ii) if the provider consists of more than one person - any of those persons;

acts, or is accustomed to act, in concert;

(i) a person, if:

(i) the provider; or

(ii) if the provider consists of more than one person - any of those persons;

is intended or expected to act under a contract or an arrangement or understanding (whether formal or informal) so as to give effect to the first-mentioned person's directions, instructions or wishes;

(j) a person with whom:

(i) the provider; or

(ii) if the provider consists of more than one person - any of those persons;

is intended or expected to act in concert under a contract or an arrangement or understanding (whether formal or informal).

203C Audit of approved provider

If, on the basis of information received under section 203A, the Secretary has concerns about the financial viability of an approved provider, the Secretary may engage an appropriately qualified and experienced expert to carry out an independent audit of the provider.

203D Report relating to an audit

(1) An expert who audits a provider under section 203C must prepare and give to the Secretary a report about the affairs of the provider.

(2) The expert's report must deal with the following:

(a) whether the provider's financial statements are based on proper accounts and records;

(b) whether the financial statements are in agreement with the accounts and records and show fairly the financial transactions and the state of the provider;

(c) any matter specified by the expert's terms of engagement;

(d) such other matters arising out of the financial statements as the expert considers should be reported;

(e) any recommendations relating to maintaining or improving the financial viability of the provider that the expert considers desirable.

Division 5 - Requirements in relation to information and reports

204A Requirements if approved provider stops operating an approved child care service

Notice if approved provider stops operating service

(1) At least 42 days before an approved provider stops operating a child care service in respect of which the provider is approved, the provider must notify the Secretary, in a form and manner approved by the Secretary, of the provider's intention to stop operating the service.

(2) Subsection (1) does not apply if the provider stops operating the service for either of the following reasons:

(a) to avoid being in breach of a law of the Commonwealth, a State or a Territory;

(b) due to circumstances beyond the provider's control.

(3) If the provider stops operating a child care service in respect of which the provider is approved for either of the reasons in subsection (2), the provider must notify the Secretary, in a form and manner approved by the Secretary, as soon as possible.

Offence

(4) A person commits an offence if the person contravenes subsection (1) or (3).

Penalty: 100 penalty units.

Civil penalty

(5) A person is liable to a civil penalty if the person contravenes subsection (1) or (3).

Civil penalty: 80 penalty units.

Requirement to give further information on request

(6) If:

(a) an approved provider notifies the Secretary in accordance with subsection (1) or (3); and

(b) the Secretary requests the provider in writing to give the Secretary specified information in relation to the provider's notice;

the provider must give the Secretary the specified information in a form and manner approved by the Secretary and by the time specified in the Secretary's request (which must be at least 14 days after the request is made).

Offence

(7) A person commits an offence if the person contravenes subsection (6).

Penalty: 100 penalty units.

Civil penalty

(8) A person is liable to a civil penalty if the person contravenes subsection (6).

Civil penalty: 80 penalty units.

204B Requirement to report about children for whom care is provided

(1) An approved provider of an approved child care service must give the Secretary a report in accordance with subsection (2) for each week in which a session of care is provided to a child, if:

(a) the provider has given the Secretary an enrolment notice; and

(b) care was provided to the child by the service on a day in the week.

Note: The provider must give enrolment notices to the Secretary relating to all children for whom care is provided, including both enrolled children (for whom complying written arrangements are made) and others for whom a relevant arrangement is made (see section 200A).

(2) A report is given in accordance with this subsection if:

(a) it is given in a form and manner approved by the Secretary; and

(b) if the child was enrolled for care on a day in the week - it includes the information required by the Secretary relevant to determining whether an individual is eligible for or entitled to be paid CCS or ACCS in relation to the session of care and, if so, the amount; and

(c) it includes any other information required by the Secretary; and

(d) it is given no later than:

(i) 14 days after the end of the week in which the session of care was provided; or

(ii) if the week is in a period, or a series of consecutive periods, to which a payment under section 205A relates - 14 days after the end of the period, or the last such period; or

(iii) if the enrolment notice is given under subsection 200A(2) - the day the enrolment notice is required to be given under that subsection.

(3) For the purposes of paragraphs (2)(b) and (c), and to avoid doubt, a report is not given in accordance with subsection (2) unless the information included as required by those paragraphs is accurate and complete.

Offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).

Penalty: 70 penalty units.

Civil penalty

(5) A person is liable to a civil penalty if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).

Civil penalty: 50 penalty units.

Updating and withdrawing reports

(6) An approved provider may:

(a) vary the report or substitute it with an updated report; or

(b) if the report was not required to be given - withdraw the report;

as long as the provider does so no later than:

(c) the earlier of the following days:

(i) the 28th day after the start of the week to which the report relates or;

(ii) the last day of the financial year in which the CCS fortnight to which the report relates starts; or

(d) if the Secretary agrees to a later day - the later day agreed by the Secretary.

(7) Subsection (6) does not prevent the Minister's rules under section 195E making provision for or in relation to approved providers varying, substituting or withdrawing reports given under this section.

204C Dealing with inaccurate reports

Requiring provider to withdraw report or substitute accurate report

(1) If the Secretary considers that a detail contained in a report given by an approved provider under subsection 204B(1) (requirement to report about children for whom care is provided) might not be accurate, the Secretary may, by written notice given to the provider, require the provider to withdraw the report, to vary it so that it becomes accurate or substitute it with an accurate report.

(2) A person must comply with a notice given to the person under subsection (1), no later than:

(a) 14 days after the notice was given; or

(b) if the notice specifies a longer period - the end of that period.

Offence

(3) A person commits an offence of strict liability if the person contravenes subsection (2).

Penalty: 70 penalty units.

Civil penalty

(4) A person is liable to a civil penalty if the person contravenes subsection (2).

Civil penalty: 50 penalty units.

Correction of report by Secretary

(5) If the Secretary:

(a) knows that a detail contained in a report given by an approved provider under subsection 204B(1) is not accurate; and

(b) knows what the correct detail is; and

(c) has (if practicable) given the provider at least 14 days written notice of the Secretary's intended correction of the report;

the Secretary may correct the report accordingly.

204D Requirement to give information about number of child care places

Notice to give information

(1) The Secretary may give an approved provider of an approved child care service a written notice requiring the provider to give the Secretary information the Secretary requires in order to determine whether to reduce the number of child care places allocated to the service.

(2) The notice must specify the following:

(a) the information the Secretary requires;

(b) the period, or each of the periods, in relation to which the information is required;

(c) the time by which the information in relation to the period, or each of the periods, is required.

(3) The notice may specify either or both of the following:

(a) the form and manner in which the information is to be provided to the Secretary;

(b) the length of time for which the provider must continue to comply with the notice.

Requirement to comply with notice

(4) The provider must comply with the notice in relation to the period, or each of the periods, specified in the notice.

Civil penalty

(5) A person is liable to a civil penalty if the person contravenes subsection (4).

Civil penalty: 30 penalty units.

(6) The Secretary may, by written notice given to a provider, terminate the effect of a notice given to the provider under subsection (1).

204E Requirement to provide further information to Secretary about enrolled children

(1) If the Secretary requires an approved provider to give the Secretary further information under section 67FH (information about children enrolled in child care), the provider must comply with the notice.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 40 penalty units.

204F Requirement to notify Secretary of certain matters

(1) The approved provider of an approved child care service must give the Secretary written notice of a matter prescribed by the Minister's rules:

(a) in a form and manner approved by the Secretary; and

(b) by the time prescribed for the matter in the Minister's rules.

Offence

(2) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 50 penalty units.

204G Requirements prescribed by Minister's rules in relation to children who are members of a prescribed class

(1) The Minister's rules may impose requirements on approved providers for the purposes of monitoring or investigating whether an approved child care service of the provider:

(a) is providing care in circumstances prescribed by the Minister's rules for the purposes of subparagraph 85BA(1)(c)(iii) of the Family Assistance Act; or

(b) is providing care to a child who is a member of a class prescribed by the Minister's rules for the purposes of paragraph 85ED(1)(b) of the Family Assistance Act.

(2) The requirements may relate to any of the following:

(a) making and keeping records;

(b) giving information to the Secretary;

(c) any other matter the Minister considers appropriate for the purposes referred to in subsection (1).

(3) To avoid doubt, this section is subject to subsection 85GB(3) of the Family Assistance Act.

204H Requirements that continue after provider's approval is suspended, cancelled or varied

(1) If, with effect from a particular day (the effective day ), the approval of a provider is:

(a) cancelled or suspended; or

(b) varied so as to remove a child care service from the approval; or

(c) suspended in respect of a child care service;

the provider must continue to comply with a provision specified in an item of the following table, in relation to the matters specified in that item for the provision, on and after the effective day as if the cancellation, variation or suspension had not happened.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.

204J Collection, use or disclosure of information for financial viability purposes

The collection, use or disclosure of personal information about an individual is taken to be authorised by this Act for the purposes of the Privacy Act 1988 if the collection, use or disclosure is reasonably necessary for the purposes of determining whether a large centre-based day care provider is financially viable and likely to remain so.

204K Notice to State/Territory body of child at risk of serious abuse or neglect

Certification for ACCS (child wellbeing)

(1) An approved provider that gives the Secretary a certificate under section 85CB of the Family Assistance Act must, no later than 6 weeks after the day the certificate takes effect, give an appropriate State/Territory body notice that the provider considers the child to whom the certificate relates is or was at risk of serious abuse or neglect.

(2) Subsection (1) does not apply if:

(a) the certificate is cancelled under section 85CC of the Family Assistance Act and a replacement certificate (within the meaning of paragraph (4)(b) of that section) is not given; or

(b) the certificate is cancelled under section 85CD of the Family Assistance Act; or

(c) the provider was notified of the risk by an appropriate State/Territory body.

Determination for ACCS (child wellbeing)

(3) Before making an application for a determination under section 85CE of the Family Assistance Act, an approved provider must give an appropriate State/Territory body notice that the provider considers the child to whom the application relates is or was at risk of serious abuse or neglect.

(4) Subsection (3) does not apply if:

(a) the provider gave an appropriate State/Territory body a notice in relation to the child under subsection (1) less than 6 weeks ago; or

(b) the provider was notified of the risk by an appropriate State/Territory body.

Offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1) or (3).

Penalty: 60 penalty units.

Civil penalty

(6) A person is liable to a civil penalty if the person contravenes subsection (1) or (3).

Civil penalty: 50 penalty units.

Meaning of appropriate State/Territory body

(7) Any of the following is an appropriate State/Territory body for the State or Territory where care is provided to the child to whom a certificate relates:

(a) a department or agency of the State or Territory that is responsible for dealing with matters relating to the welfare of children;

(b) an organisation dealing with such matters on behalf of such a department or agency in accordance with an agreement between the department or agency and the organisation.

Division 6 - Business continuity payments

205A Business continuity payments

(1) The Secretary may determine that a payment is to be made to an approved provider in relation to a period if all of the following apply:

(a) the provider is required to give a report under subsection 204B(1) (requirement to report about children for whom care is provided) for a week in respect of one or more enrolments;

(b) the provider does not give the report for the week by the time required for that report under section 204B;

(c) the Secretary is satisfied that the failure to give the report is due to circumstances prescribed by the Minister's rules.

Note: Section 205B deals with the setting off of payments made under this section.

(2) The Minister's rules:

(a) must prescribe a method of determining the amounts of payments under this section; and

(b) may prescribe any other matters relating to the making of payments under this section.

(3) The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved provider.

(4) The Secretary must give the approved provider written notice of the payment and of the period to which the payment relates.

205B Setting off business continuity payments

(1) This section applies if a payment is made under section 205A to an approved provider in respect of the enrolment of a child for care by an approved child care service (the first service ) of the provider.

(2) The Secretary must set off an amount equal to the payment against one or more child care service payments that are to be made in respect of an enrolment of a child for care:

(a) by the first service; or

(b) by any other approved child care service of the provider.

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