PART 4A
-
CHILD CARE SUBSIDY
History
Pt 4A inserted by No 22 of 2017, s 3 and Sch 1 item 40, effective 2 July 2018. No 22 of 2017, s 3 and Sch 4 contain the following application, saving and transitional provisions:
Schedule 4
-
Application, saving and transitional provisions
Part 1
-
Introduction
1 Definitions
1
In this Schedule:
Administration Act
means the
A New Tax System (Family Assistance) (Administration) Act 1999
.
Assistance Act
means the
A New Tax System (Family Assistance) Act 1999
.
commencement day
means 2 July 2018.
Note:
Schedule 1 commences on 2 July 2018.
pre-commencement period
means the period commencing on 1 January 2018 and ending on 1 July 2018.
Part 2
-
Child care subsidy and additional child care subsidy
2 Commencement of child care subsidy and additional child care subsidy
2
A person can only be eligible for child care subsidy or additional child care subsidy for a session of care provided on or after the commencement day.
3 Deemed claims for CCS
3
An individual is taken to have made a claim in respect of a child for CCS, in accordance with Division
2
of Part
3A
of the Administration Act, if, immediately before the commencement day:
(a)
a determination is in effect under section
50F
of the Administration Act, that the individual is conditionally eligible under section
42
of the Assistance Act in respect of the child; or
(b)
the individual has made an effective claim for child care benefit on which the Secretary has not yet made a determination.
4 Pre-commencement claims etc. for CCS
(1)
The following things may be done during the pre-commencement period, for the purposes of ensuring that amounts of CCS and ACCS, and amounts under section
67EB
of the Administration Act, can be paid promptly for weeks commencing on and after the commencement day:
(a)
individuals may make claims for CCS, as if the amendments made by Schedule 1 were in force;
(b)
the Secretary may exercise powers and perform functions under Part
4A
of the Assistance Act and Part
3A
of the Administration Act as inserted by Schedule 1, and under Part
6
of the Administration Act as amended by Schedule 1, as if the amendments made by Schedule 1 were in force.
(2)
Subitem (1) does not limit the operation of section
4
of the
Acts Interpretation Act 1901
.
(3)
To avoid doubt, subitem (1) is subject to item 2.
5 Indexation of various amounts
(1)
This item applies in relation to any of the following amounts (an
unindexed amount
), as specified in the Assistance Act as in force on the commencement day:
(a)
lower income threshold;
(b)
CCS hourly rate cap;
(c)
annual cap.
(2)
The Assistance Act, as amended by this Act, applies, on and after the commencement day, in relation to an unindexed amount, as if the amount (the
indexed amount
) worked out as provided by subitem (3) were substituted for the unindexed amount.
(3)
The indexed amount to be substituted is the amount that would have been substituted for the unindexed amount on 1 July 2018 under subclause
4(1)
of Schedule
4
to the Assistance Act if:
(a)
Schedule 1 to this Act had commenced on 3 July 2017; and
(b)
the first indexation of the unindexed amount had taken place on 1 July 2018.
Note:
For the indexation method provided by the Assistance Act in relation to these amounts, see items 18, 19 and 20 of the table in subclause
3(1)
of Schedule
4
to the Assistance Act (as amended by this Act) and related provisions in Part
2
of Schedule
4
to that Act.
(4)
The first indexation of an indexed amount after the commencement day is to take place on 1 July 2019.
6 Requirement for enrolments to be in writing
6
References in the Assistance Act and the Administration Act to a complying written arrangement include references to an arrangement:
(a)
in force immediately before the commencement day; and
(b)
under which a child was enrolled for care by an approved child care service within the meaning of the Administration Act as in force immediately before the commencement day.
Part 3
-
Child care benefit and child care rebate
7 End of child care benefit and child care rebate
7
No person can be eligible for child care benefit or child care rebate for care, or a session of care, provided on or after the commencement day.
8 Saving of law in relation to child care benefit and child care rebate
(1)
The following Acts and instruments continue in force, on and after the commencement day, in relation to child care benefit or child care rebate for which a person was eligible before the commencement day, subject to any modifications prescribed by rules made under item 12 (together these are the
continued law
):
(a)
the Assistance Act, as in force immediately before the commencement day;
(b)
the Administration Act, as in force immediately before the commencement day;
(c)
an instrument (whether legislative or administrative) in force for the purposes of the Assistance Act or the Administration Act immediately before the commencement day;
(d)
any other Act amended by this Act, as in force immediately before the commencement day.
(2)
Without limitation, subitem (1) has the following effects:
(a)
a person may make a claim for child care benefit or child care rebate on or after the commencement day, in relation to a session of care provided before the commencement day;
(b)
the Secretary must make determinations on and after the commencement day of eligibility for, and entitlement to be paid, child care benefit or child care rebate in respect of sessions of care provided before the commencement day;
(c)
payments must be made on and after the commencement day of, or in relation to, child care benefit and child care rebate for which a person was eligible before the commencement day;
(d)
the person continues to be liable for any debt to the Commonwealth incurred before the commencement day;
(e)
the person may incur a debt to the Commonwealth after the commencement day in relation to payments made to the person before, on or after the commencement day;
(f)
any such debts may be recovered on or after the commencement day in accordance with the continued law;
(g)
decisions in relation to child care benefit and child care rebate that are reviewable may be reviewed on and after the commencement day in accordance with the continued law.
(3)
Subitem (1) does not apply to the extent of any inconsistency with another provision of this Schedule.
(4)
Subitem (1) does not limit the operation of section
7
of the
Acts Interpretation Act 1901
in relation to the repeals made by Schedule 1 to this Act.
Part 4
-
Providers of child care services
9 Deemed approval of operators of existing approved child care services
(1)
If, immediately before the commencement day, a person is the operator of an approved child care service within the meaning of the Administration Act as then in force, then, on and after the commencement day:
(a)
the person is taken to be:
(i)
an approved provider within the meaning of the Administration Act; and
(ii)
approved in respect of the service; and
(b)
the service is taken to be a service of a type determined by the Secretary under subitem (2).
(2)
For paragraph (1)(b), the Secretary may, by instrument, determine an approved child care service within the meaning of the Administration Act as in force immediately before the commencement day to be a service of one of the following types, as described in the table in subclause
2(3)
of Schedule
2
to the Assistance Act (CCS hourly rate cap):
(a)
a centre-based day care service;
(b)
a family day care service;
(c)
an outside school hours care service;
(d)
a type of service prescribed by the Minister
'
s rules for the purposes of item 4 of that table.
(3)
An instrument made under subitem (2):
(a)
is not a legislative instrument if it is expressed to apply in relation to a particular approved child care service; and
(b)
is a legislative instrument if it is expressed to apply in relation to a class of approved child care services.
(4)
If, immediately before the commencement day, the approval of a child care service is suspended under Part
8
of the Administration Act, then, on and from the commencement day:
(a)
the approval of the operator of the service under subitem (1) is taken to be suspended in respect of the service; and
(b)
the Secretary may deal with the operator in respect of the service in accordance with the Administration Act as amended by this Act.
10 Saving of law in relation to approved providers
(1)
The following Acts and instruments continue in force, on and after the commencement day, subject to any modifications prescribed by rules made under item 12 (together these are the
continued law
), in relation to things done, or matters arising, before the commencement day in relation to a person mentioned in subitem 9(1):
(a)
the Assistance Act, as in force immediately before the commencement day;
(b)
the Administration Act, as in force immediately before the commencement day;
(c)
an instrument (whether legislative or administrative) in force for the purposes of the Assistance Act or the Administration Act immediately before the commencement day;
(d)
any other Act amended by this Act, as in force immediately before the commencement day.
(2)
Without limitation, subitem (1) has the following effects:
(a)
the person must continue to comply with the continued law in relation to care provided before the commencement day;
(b)
the person continues to be liable for any debt to the Commonwealth incurred before the commencement day;
(c)
the person may incur a debt to the Commonwealth after the commencement day in relation to payments made to the person before, on or after the commencement day;
(d)
any such debts may be recovered on or after the commencement day in accordance with the continued law;
(e)
decisions in relation to the person that are reviewable may be reviewed on and after the commencement day in accordance with the continued law.
Part 5
-
Miscellaneous
…
12 Transitional rules
(1)
The Minister may make rules prescribing matters:
(a)
required or permitted by this Act to be prescribed by the rules; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
In particular, rules may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:
(a)
the amendments or repeals made by any Schedule to this Act; or
(b)
the enactment of this Act.
(3)
Rules made within 2 years after the commencement day may provide that this Act or any other Act or instrument has effect with any modifications prescribed by the rules.
(4)
Subsection
12(2)
of the
Legislation Act 2003
does not apply in relation to a provision of the rules if:
(a)
the rules are registered within 2 years after the commencement day; and
(b)
the provision is taken to commence before the day the rules are registered, but on or after the commencement day.
(5)
However, if:
(a)
rules are registered to which paragraph (4)(a) and (b) applies; and
(b)
a person engaged in conduct before the day the rules were registered; and
(c)
but for any retrospective effect of the rules, the conduct would not have contravened a provision of this Act, or another Act or instrument;
then a court must not convict the person of an offence, or impose a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of this Act or another Act or instrument.
(6)
This Schedule does not limit the rules that may be made under this item.
Division 3
-
Eligibility for additional child care subsidy
History
Div 3 inserted by No 22 of 2017, s 3 and Sch 1 item 40, effective 2 July 2018.
Subdivision A
-
Eligibility for ACCS (child wellbeing)
History
Subdiv A inserted by No 22 of 2017, s 3 and Sch 1 item 40, effective 2 July 2018.
SECTION 85CE
Determination for ACCS (child wellbeing)
85CE(1)
An approved provider may apply to the Secretary for a determination under this section if the provider:
(a)
considers that a child is or was at risk of serious abuse or neglect at the time an approved child care service of the provider provides or provided a session of care to the child; and
(b)
is unable to give a certificate because of subsection
85CB(3)
or
(4)
.
Note:
Before making the application, the provider must give notice to an appropriate State/Territory support agency in accordance with section
204K
of the
Family Assistance Administration Act
.
History
S 85CE(1) amended by No 125 of 2019, s 3 and Sch 1 item 15, by substituting
"
appropriate State/Territory support agency
"
for
"
appropriate State/Territory body
"
in the note, effective 16 December 2019.
85CE(2)
The application must:
(a)
be made in a form and manner approved by the Secretary; and
(b)
contain the information, and be accompanied by the documents, required by the Secretary.
85CE(3)
The Secretary must, no later than 28 days after the day the application is made:
(a)
if satisfied that the child is or was at risk of serious abuse or neglect on a day (an at
risk day
)
-
make a written determination to that effect; and
(b)
otherwise
-
refuse the application.
Note:
Persons whose interests are affected by the decision must be notified of the decision and of their right to have it reviewed (see section
27A
of the
AAT Act
).
[
CCH Note:
S 85CE(3) will be amended by No 38 of 2024, s 3 and Sch 3 item 208, by substituting
"
section 266 of the ART Act
"
for
"
section 27A of the AAT Act
"
in the note, effective at the same time as the
Administrative Review Tribunal Act 2024
commences. However, the provisions do not commence at all if that Act does not commence.]
85CE(4)
If the Secretary neither makes a determination nor refuses the application by the end of the 28 days after the day the application was made, the Secretary is taken at that time to have refused the application. Subsection
27A(1)
of the
AAT Act
does not apply to such a refusal.
Note:
This means the Secretary is not required to give notice of the refusal.
[
CCH Note:
S 85CE(4) will be repealed by No 38 of 2024, s 3 and Sch 3 item 1, effective at the same time as the
Administrative Review Tribunal Act 2024
commences. However, the provisions do not commence at all if that Act does not commence.]
85CE(5)
A determination made under this section must:
(a)
specify the day it takes effect, which must be the Monday of a week that includes an at risk day and cannot be more than 28 days before the application was made; and
(b)
specify the whole weeks for which it has effect, which:
(i)
must be weeks that include an at risk day; and
(ii)
unless subsection
(5A)
applies
-
cannot exceed 13 weeks; and
(c)
identify the child to whom it relates.
History
S 85CE(5) amended by No 84 of 2020, s 3 and Sch 1 item 4, by inserting
"
unless subsection (5A) applies
-
"
in para (b)(ii), effective 1 July 2021.
85CE(5A)
If the child is a member of a class prescribed by the Minister
'
s rules for the purposes of subparagraph
85CA(2)(b)(ii)
, the unbroken period of weeks for which the determination and any of the following have effect cannot exceed 13 weeks:
(a)
a certificate given by the provider under section
85CB
in relation to the child;
(b)
one or more other determinations under this section that relate to the child.
History
S 85CE(5A) inserted by No 84 of 2020, s 3 and Sch 1 item 5, effective 1 July 2021.
85CE(5B)
The Secretary may extend the period of 28 days referred to in paragraph
(5)(a)
, to a period of no more than 13 weeks, if the Secretary is satisfied that an exceptional circumstance prescribed by the Minister
'
s rules exists.
History
S 85CE(5B) inserted by No 84 of 2020, s 3 and Sch 1 item 5, effective 1 July 2021.
85CE(5C)
The Secretary may extend the period of 13 weeks referred to in subparagraph
(5)(b)(ii)
, to a period of no more than 52 weeks, if the Secretary is satisfied that a circumstance prescribed by the Minister
'
s rules exists in relation to the child.
History
S 85CE(5C) amended by No 26 of 2021, s 3 and Sch 1 item 30, by substituting
"
52 weeks
"
for
"
12 months
"
, effective 1 July 2021.
S 85CE(5C) inserted by No 84 of 2020, s 3 and Sch 1 item 5, effective 1 July 2021.
85CE(6)
If:
(a)
a determination made under this section is in effect in relation to a child; and
(b)
the Secretary is satisfied that the child will still be at risk of serious abuse or neglect after the determination ceases to have effect;
the Secretary may make a written determination accordingly to take effect on the Monday immediately after the earlier determination ceases to have effect.
85CE(7)
A determination made under this section is not a legislative instrument.
History
S 85CE inserted by No 22 of 2017, s 3 and Sch 1 item 40, effective 2 July 2018.
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