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
208 Part 8C
Repeal the Part, substitute:
Part 8C - Regulatory powers
Division 1 - Monitoring powers
219UA Monitoring powers
Provisions subject to monitoring
(1) The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:
(a) a civil penalty provision;
(b) the following conditions for continued approval of an approved provider:
(i) subsections 195A(1), (2), (3) and (4);
(ii) subsection 195C(1);
(iii) subsection 195D(1);
(iv) section 195E;
(v) subsection 195F(1);
(vi) section 203A;
(c) paragraphs 197A(1)(b), (c) and (d);
(d) a listed child care information provision (see section 219UB).
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with one or more of the listed child care information provisions (see section 219UB) is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the Regulatory Powers Act, each of the following provisions is related to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) a provision of Division 6 of Part 3A that creates an offence;
(b) a provision of Part 8A that creates an offence;
(c) a provision of the Crimes Act 1914 or the Criminal Code that relates to this Act and creates an offence.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(4) For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) the Secretary is the authorised applicant; and
(b) a person appointed under section 219UD is an authorised person; and
(c) each of the following is an issuing officer:
(i) a Judge of the Federal Circuit Court of Australia;
(ii) a Judge of the Federal Court of Australia;
(iii) a magistrate; and
(d) the Secretary is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit Court of Australia.
Delegation by relevant chief executive
(5) The relevant chief executive may, in writing, delegate the power under section 35 of the Regulatory Powers Act to issue identity cards to authorised persons to an officer within the meaning of this Act.
(6) A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.
Person assisting
(7) An authorised person may be assisted by other persons (including members of an audit team) in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
219UB Meaning of listed child care information provision
A provision listed in the table is a listed child care information provision .
|
Listed child care information provisions |
||
|---|---|---|
|
Item |
Provision |
Description |
|
1 |
section 67FC |
notice if child not at risk of serious abuse or neglect |
|
2 |
section 67FH |
request for information about children enrolled in child care |
|
3 |
subsection 154(3) |
requirement to give information or produce a document that may be relevant to amount of ACCS (child wellbeing) an approved provider is entitled to be paid |
|
4 |
subsection 154(4) |
requirement to give information or produce a document that may be relevant to provider's approval etc. |
|
5 |
subsection 154(5) |
requirement to produce records kept under section 202D |
|
6 |
section 155, if the person who owes the debt is the provider of a child care service |
requirement for debtor to give information etc. |
|
7 |
section 156, if the person who owes the debt is the provider of a child care service |
requirement for person to give information etc. in relation to a debtor |
|
8 |
section 157, to the extent that the required information relates to ACCS (child wellbeing) for which a provider is or might be eligible |
requirement for person to give information to verify claims etc. |
|
9 |
section 157A |
records supporting certificate under section 85CB (certification for ACCS (child wellbeing) |
|
10 |
section 199C |
notification of matters affecting approval |
|
11 |
section 200A, including that section as it applies because of section 204H |
enrolment notices |
|
12 |
section 200D, including that section as it applies because of section 204H |
updating enrolment notices |
|
13 |
section 203A |
financial information relating to large day care providers |
|
14 |
section 204A |
provider decides to stop operating an approved child care service |
|
15 |
section 204B, including that section as it applies because of section 204H |
reports in relation to enrolled children and others for whom care is provided |
|
16 |
section 204C, including that section as it applies because of section 204H |
dealing with inaccurate reports |
|
17 |
section 204D |
information about child care places |
|
18 |
section 204E, including that section as it applies because of section 204H |
further information about enrolled children |
|
19 |
section 204F |
notice of certain matters |
|
20 |
a Minister's rule made for the purposes of section 204G |
requirements in relation to children who are members of a prescribed class |
219UC Modification of Part 2 of the Regulatory Powers Act
(1) Paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is taken to include a reference to a person who apparently represents the occupier.
(2) If the consent referred to in paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is given by a person who apparently represents the occupier, references in the following provisions of the Regulatory Powers Act to the occupier are taken to be references to the person:
(a) subparagraph 20(4)(b)(ii);
(b) subsection 24(2);
(c) section 25;
(d) subsection 29(4).
219UD Appointment of authorised persons
(1) The Secretary may, in writing, appoint any of the following as an authorised person for the purposes of this Act:
(a) a person who holds, or performs the duties of, an appointment, office or position under a law of the Commonwealth or of a State or Territory;
(b) an employee of an authority of the Commonwealth or of a State or Territory;
(c) a person performing services for the Commonwealth under a contract with the Commonwealth.
(2) The Secretary must not appoint a person as an authorised person unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an authorised person.
(3) An authorised person must, in exercising powers as such, comply with any directions of the Secretary.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
Division 2 - Civil penalties
219VA Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act and the Family Assistance Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions in this Act.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia.
219VB Requirement for person to assist with applications for civil penalty orders
(1) A person commits an offence if:
(a) the Secretary requires, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and
(b) the person fails to comply with the requirement.
Penalty: 10 penalty units.
(2) A requirement made under subsection (1) is not a legislative instrument.
(3) The Secretary may require a person to assist under subsection (1) only if:
(a) it appears to the Secretary that the person is unlikely to have:
(i) contravened the civil penalty provision to which the application relates; or
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
(b) the Secretary suspects or believes that the person can give information relevant to the application.
(4) The Secretary cannot require a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.
(5) The Federal Court of Australia or the Federal Circuit Court of Australia may order a person to comply with a requirement under subsection (1) in a specified way. Only the Secretary may apply to the court for an order under this subsection.
(6) For the purposes of this section, it does not matter whether the application for the civil penalty provision has actually been made.
Note: Subsection (1) does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, documents or other things.
Division 3 - Infringement notices
219WA Infringement notices
Provisions subject to an infringement notice
(1) A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, a person appointed under subsection (3) is an infringement officer in relation to the provisions mentioned in subsection (1).
(3) The Secretary may, in writing, appoint an officer of the Department as an infringement officer for the purposes of this Act.
Relevant chief executive
(4) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).
(5) The relevant chief executive may, in writing, delegate the powers and functions of the relevant chief executive under Part 5 of the Regulatory Powers Act to an officer within the meaning of this Act.
Single infringement notice may deal with more than one contravention
(6) Despite subsection 103(3) of the Regulatory Powers Act, a single infringement notice may be given to a person in respect of:
(a) 2 or more alleged contraventions of a provision mentioned in subsection (1); or
(b) alleged contraventions of 2 or more provisions mentioned in subsection (1).
However, the notice must not require the person to pay more than one amount in respect of the same conduct.
Division 4 - General rules about offences and civil penalty provisions
219XA Physical elements of offences
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision ) commits an offence.
(2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.
Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
219XB Contravening an offence provision or a civil penalty provision
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision ) commits an offence or is liable to a civil penalty.
(2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.