House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Employment Participation and Childcare, the Honourable Kate Ellis MP)

FAMILY ASSISTANCE AND OTHER LEGISLATION AMENDMENT (CHILD CARE AND OTHER MEASURES) BILL 2011

OUTLINE

Offsetting and debt recovery

The Bill amends the A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act) and the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 (CCMS Act) to improve the effectiveness of the recovery of fee reductions, enrolment advances and business continuity payments paid to approved child care services.

Currently, the recoverable amounts are set off against subsequent payments of fee reductions, enrolment advances or business continuity payments made to the service. Amendments made by the Bill enable recovery of these amounts also by way of set off from any payments made to services through the Child Care Management System, that is, from acquittal payments made to services under the CCMS Act and from payments made to services under administrative (non-legislative) schemes.

Amendments are also made to enable the recovery of those amounts from the same range of payments to be made to another approved child care service operated by the same operator.

Enrolment advance payments are currently required to be made to an approved child care service for any enrolment of a child up to the last day the service is approved to continue operating. Once a service's approval for the purposes of the family assistance law is suspended or cancelled, all advance amounts that have not been offset by that time become a debt due by the service to the Commonwealth. The amendments made by this Bill authorise the Secretary to stop making enrolment advance payments from the date a service notifies its intention to cease operations and to commence recovery of the enrolment advance payments from that date.

Child care absences

Amendments to the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) clarify the provisions concerning the effect of a child's absence from the care of an approved child care service (other than an occasional care service) on the eligibility of an individual for child care benefit for that child. The amendments authorise the Minister to specify, by a legislative instrument, the circumstances relating to the absence of a child, in which the service will be taken to have permanently ceased providing care. The amendments also clarify that, where an approved child care service has permanently ceased providing care to a child, it will be deemed to have done so on the day the child last physically attended care.

Scope of family assistance law

The Bill makes amendments to clarify the definition of the 'family assistance law' in the Family Assistance Administration Act to include instruments made under the Family Assistance Administration Act and the Family Assistance Act. Similar consequential amendments are made to the family assistance law definitions in the Child Care Act 1972 and the Social Security Act 1991 . The amendments provide that an instrument that is taken to be part of the family assistance law can provide that any decision under it is subject to the internal and external review mechanisms provided for in the Family Assistance Administration Act.

Protected information

Amendments are made by the Bill to confidentiality provisions in the Family Assistance Administration Act to enable disclosure of information about education and care services for the purposes of the new Education and Care Services National Law. This will support the establishment of the national education and care services quality framework for the delivery of education and care services to children. These services include centre-based long day care services, family day care services and outside school hours care services approved for the purposes of the family assistance law.

Existing provisions in the Family Assistance Administration Act, the Social Security Administration Act 1999 and the Student Assistance Act 1973 do not allow the Secretary or anyone else to use information about a person obtained for the purposes of the family assistance, social security or student assistance law for purposes other than those specifically prescribed in the family assistance, social security or student assistance law, even with the consent of the person concerned. This Bill amends the confidentiality provisions to enable a person to record, disclose and otherwise use protected information with the express or implied authorisation of the person to whom the information relates.

The Family Assistance Administration Act, Social Security (Administration) Act 1999 and the Student Assistance Act 1973 require the Minister to make guidelines to guide the exercise of the Secretary's discretion to provide protected information in the public interest and to the head of another agency for that agency's purposes. Under the Family Assistance Administration Act, these guidelines are also for the purposes of providing information to a person who is authorised by the person to whom the information relates. Except for disclosure in the public interest, no such guidelines have ever been made. Amendments are made to those Acts to provide the Minister with the discretion to make such guidelines.

Other amendments

The current provisions of the Family Assistance Administration Act relating to refusal of approval of a service for the purposes of the family assistance law have been a source of interpretational difficulties. While the current provisions clearly specify that the Secretary must approve the service if the specified conditions are met, there is no clarity whether the Secretary may or must refuse approval if any of these conditions are not met. Amendments are made to replace the existing provisions relating to refusal with the requirement to refuse approval where the conditions for approval are not met and to ensure that the applicants are notified of the refusal decision.

Amendments are made to broaden the scope of the condition for continued approval of child care services relating to the requirement to comply with child care laws. This ensures alignment with the similar requirement the services need to comply with as a condition of approval.

Amendments are made to ensure that the same process applies in relation to the reduction of the amount of CCB fee reduction for a reported period, irrespective of whether the reduction results from a recalculation triggered by a service substituting or withdrawing a report for a period, or the Secretary recalculating the amount for the period.

The Bill makes a minor technical amendment to the Family Assistance Legislation Amendment (Child Care) Act 2010 to correct a misdescribed provision.

FINANCIAL IMPACT

Nil.