House of Representatives

Explanatory Memorandum

(Circulated By The Authority of the Minister for Education and Minister for Employment and Workplace Relations the Honourable Julia Gillard MP)

Schedule 5 - Other Amendments

Part 1 - Child care rebate for final quarter

Amendments made in this Part provide the Secretary with discretion regarding the calculation and the payment of the amount of child care rebate for the fourth quarter of an income year for an eligible individual. Currently, the calculation of the rebate amount for the fourth quarter and the rebate entitlement amount for the income year in which this quarter falls are required to be made separately, even if both determinations are made at the same time. As a result of the amendments, the rebate for the fourth quarter will be able to be included in the amount of an individual's entitlement for the income year in which the fourth quarter falls, determined after the end of the income year.

A New Tax System (Family Assistance) Act 1999

Item 1 - Section 84AA

Section 84AA specifies how the quarterly amount of the rebate is calculated. Item 1 makes a stylistic amendment to section 84AA, consequential on the amendment made by item 2.

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

Item 2 - After subsection 65EAA(1)

Subsection 65EAA(1) requires the Secretary to calculate a quarterly child care rebate amount for an individual eligible for the quarterly rebate under subsection 57EA(1) of the Family Assistance Act.

Item 2 inserts a new subsection 65EAA(1A), which provides the Secretary with a discretion not to calculate the quarterly rebate amount for the final quarter of an income year. A note at the end of this subsection informs the reader that the Secretary may pay a rebate for the last quarter as part of the individual's entitlement for the entire income year under Subdivision A of Division 4AA. Item 2 also makes a consequential amendment to the heading to subsection 65EAA(1).

Item 3 - Application

Item 3 is an application provision. It provides that the amendments made by Part 1 of this Schedule will apply in relation to the last quarter of the 2008-09 income year and to the last quarter of subsequent income years.

Part 2 - CCB% provisions

This Part amends currently inoperative sections 60 and 60A of the Family Assistance (Administration) Act relating to the variation of determinations of no entitlement for child care benefit for a past period or for child care benefit by single payment/in substitution, respectively, if such a determination was made because the claimant did not give the Secretary information needed to work out the number of children the individual has or had in care of a particular kind or the claimant opted to have a CCB% of zero% applicable to him or her, which resulted in a nil entitlement amount.

As a result of the amendment, the Secretary will be able to vary the determination of no entitlement, with the effect that the claimant will be entitled to a child care benefit amount for the period covered by the determination, if the claimant provides the missing information within two years from the end of the income year in which the determination of no entitlement was made or informs the Secretary that he/she no longer opts to have a CCB% of zero% applicable to him or her, and the amount would be more than nil.

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

Items 4 and 5 make amendments to subsections 52H(1) and 53F(1), respectively, consequential on the amendments made by item 6.

Item 4 - At the end of subsection 52H(1)

Subsection 52H(1) provides that a determination of entitlement, or no entitlement, made on claim for child care benefit for a past period comes into force when it is made and remains in force at all times afterwards.

Item 4 inserts a note at the end of subsection 52H(1). This note informs the reader that a determination of no entitlement to child care benefit for a past period made under subsection 52G(1) may cease to have effect as a result of variation made under section 60.

Item 5 - At the end of subsection 53F(1)

Subsection 53F(1) provides that a determination of entitlement, or no entitlement, made on a claim for child care benefit by single payment/in substitution comes into force when it is made and remains in force at all times afterwards.

Item 5 adds a note at the end of subsection 53F(1). This note informs the reader that a determination of no entitlement to child care benefit by single payment/in substitution made under subsection 53E(1) may cease to have effect as a result of a variation made under section 60A.

Sections 60 and 60A provide for variation, in certain circumstances, of an entitlement determination for child care benefit for a past period and for child care benefit by single payment/in substitution, made when the amount of entitlement was nil. These sections are currently inoperative as the nil amount of entitlement does not result in the entitlement determination.

Item 6 - Sections 60 and 60A

Item 6 repeals inoperative sections 60 and 60A and substitutes new sections 60 and 60A.

New section 60 - Variation where no entitlement for child care benefit for a past period because CCB% is zero% and claimant gives information so that CCB% can be recalculated

New subsection 60(1) specifies when the Secretary must vary a determination of no entitlement to CCB for a past period, which was made under subsection 52G(1) because the entitlement amount would be a nil amount due to the circumstances specified in subsection 55B(2) (because the claimant did not give the Secretary information needed to work out the number of children the individual has or had in care of a particular kind or the claimant opted to have a CCB% of zero% applicable to him or her).

The Secretary must vary the determination if the claimant complies with the requirements set out for this purpose in new subsection 60(3) or 60(4) and the Secretary is satisfied that the entitlement amount would be more than a nil amount (new subsection 60(1) refers). As a result of this provision, if more than one circumstance contributes to the claimant's no entitlement determination, the determination will not be able to be varied unless the claimant complies with the variation requirements relevant to all of those circumstances.

If circumstances specified in both subparagraphs 55B(2)(i) and (ii) apply to the claimant, the Secretary will not be satisfied that the amount of entitlement after variation would be more than a nil amount unless the claimant complies with the variation requirements set out in both new subsections 60(3) and 60(4) (the note at the end of new subsection 60(1) refers).

In relation to a claimant who did not give the Secretary information needed to work out the number of children the individual has or had in care of a particular kind, the conditions are that the claimant gives the Secretary this information and the tax file number of each of the 'TFN determination persons' within 2 years after the end of the income year during which the no entitlement determination was made (new subsection 60(3) refers).

In relation to a claimant who opted for CCB% of zero %, the conditions are that the claimant informs the Secretary that he or she wants the child care benefit entitlement to be recalculated on the basis of CCB% worked out under Schedule 2 to the Family Assistance Act and gives the Secretary the tax file number of each of the 'TFN determination persons' within 2 years after the end of the income year during which the no entitlement determination was made (new subsection 60(4) refers).

If a variation determination is made, the original determination made on the claim for child care benefit for a past period ceases to be a no entitlement determination under subsection 52G(1) and becomes a determination of entitlement under section 52E (new subsection 60(2) refers).

New section 60A - Variation where no entitlement for child care benefit by single payment/in substitution because CCB% is zero%, and claimant gives information so that CCB% can be recalculated

New section 60A specifies when the Secretary must vary a determination of no entitlement for CCB by single payment/in substitution, which was made under subsection 53E(1) because the entitlement amount would be a nil amount due to the circumstances specified in subsection 55A(2) or subsection 55B(2) (because the claimant did not provide a reasonable estimate of income, or did not give the Secretary information needed to work out the number of children the individual has or had in care of a particular kind or the claimant opted to have a CCB% of zero% applicable to him or her).

The Secretary must vary the determination if the claimant complies with the variation requirements set out for this purpose in any or all of subsections (3), (4) and (5) and the Secretary is satisfied that the entitlement amount would be more than a nil amount (new subsection 60A(1) refers). As a result of this provision, if more than one circumstance contributes to the claimant's no entitlement determination, the determination will not be able to be varied unless the claimant complies with the variation requirements relevant to all of those circumstances.

A note at the end of new subsection 60A(1) clarifies that if, for example, subsection 55A(2) and subparagraphs 55B(2)(c)(i) and (ii) all apply to the claimant, the Secretary will not be satisfied that the amount of entitlement after variation would be more than a nil amount unless the claimant complies with the variation requirements set out in all new subsections: 60A(3), 60A(4) and 60A(5).

In relation to a claimant who did not provide a reasonable estimate of income, the conditions are that the claimant gives the Secretary this information within two years after the end of the income year during which the no entitlement determination was made (new subsection 60A(3) refers).

In relation to a claimant who did not give the Secretary information needed to work out the number of children the individual has or had in care of a particular kind, the conditions are that the claimant gives the Secretary this information and the tax file number of each of the 'TFN determination persons' within two years after the end of the income year during which the no entitlement determination was made (new subsection 60A(4) refers).

In relation to a claimant who opted for CCB% of zero %, the conditions are that the claimant informs the Secretary that he or she wants the CCB entitlement to be recalculated on the basis of CCB% worked out under Schedule 2 to the Family Assistance Act and gives the Secretary the tax file number of each of the 'TFN determination persons' within two years after the end of the income year during which the no entitlement determination was made (new subsection 60A(5) refers).

If a variation determination is made, the original determination made on the claim for child care benefit by single payment/in substitution ceases to be a no entitlement determination under subsection 53E(1) and becomes a determination of entitlement under section 52D (new subsection 60A(2) refers).

'TFN determination person' referred to in new sections 60 and 60 A is defined in section 3 of the Family Assistance (Administration) Act as the claimant and/or the claimant's partner, as appropriate in each particular case.

Item 7 - Paragraphs 60B(1)(b) and (c)

Makes consequential amendments to section 60B relating to variation of a determination of a zero CCB%, relevant to a claim for child care benefit by fee reduction, which was made under section 50J in circumstances similar to those to which sections 60 and 60A apply. This item amends paragraphs 60B(1)(b) and (c) to clarify that, if more than one circumstance contributes to the claimant's zero CCB % determination, the determination will not be able to be varied unless the claimant complies with the variation requirements relevant to all of those circumstances, as set out in paragraph 60B(1)(c).

Item 8 - Application

Item 8 is an application provision. It provides that the amendments made by Part 2 of this Schedule will apply in relation to care provided by an approved child care service to a child on or after 7 July 2008.

Part 3 - Obligations and permissions of an approved child care service are those of the operator

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

Item 9 - After section 195

Inserts new section 195A. New subsection 195A provides that for the purposes of family assistance law and an instrument under the family assistance law, when an obligation is imposed or a permission is conferred by that law or instrument on an approved child care service it is taken to be imposed or conferred on the person operating the service.

The operator of the service is the person on whose application (under section 194 of the Family Assistance (Administration) Act) the service was approved for the purposes of the family assistance law.

Item 10 - Application

Inserts application provisions regarding new section 195A.

Subitem (1) specifies that new section 195A applies in relation to obligations imposed, and permissions conferred, before, at or after the commencement of this Part.

Subitem (2) provides that for the purposes of new section 195A, Part 2 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007 is taken to form part of the family assistance law.

This amendment clarifies that the legislative intention behind the imposition and conferment by the family assistance law of obligations and permissions on an approved child care service is that the person responsible for compliance with those obligations and permissions is the operator of the service.

Given that the family assistance law has been administered in accordance with this intention, the retrospective application of this clarifying amendment does not impose any additional obligation on operators or past operators of approved child care services in relation to the retrospective period.

Item 11 - Part 8A (heading)

Amends the heading to Part 8A to read 'Obligations, and advances, relating to approved child care services'.

Item 12 - Division 1 of Part 8A (heading)

Amends the heading to Division 1 of Part 8A to read 'Obligations relating to approved child care services'.

Part 4 - Manner of Notifying Cessation of Operation

This Part amends the notification requirement in section 219M of the Family Assistance (Administration) Act, which requires an operator of a child care service to notify the Secretary of the intention to cease operating a child care centre at least thirty days before the operator ceases to operate the service. The operation of this requirement is subject to the Secretary giving individual notices to each service specifying how the notification of their intention to cease is to be given. It is impractical for the Secretary or a delegate to give individual notices to each service to specify how the notification about the cessation of operation is to be provided. Amendments made by this Part will require the notice to be provided in the form, manner and way approved by the Secretary.

Part 3 of this Schedule also introduces a new obligation on an operator of an approved child care service who notifies the Secretary under section 219M(1) of their intention to cease operating the service, to provide further information about the cessation, if requested by the Secretary in writing.

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

Subsection 219M(1) requires an operator of an approved child care service to notify the Secretary of the intention to cease operating the service, at least thirty days before the operator ceases to operate the service, in the manner provided for in subsection (2). Subsection 219M(2) requires the notice to be given in the manner set out in a written notice given to the service by the Secretary. This is a civil penalty provision (Part 8C provides for pecuniary penalties for breaches of civil penalty provisions). Contravention of this requirement is an offence, for which up to 60 penalty units apply (subsection 219M(3) refers).

Item 13 - Subsection 3(1) (Paragraph (m) of the definition of civil penalty provision)

Amends the definition of civil penalty provision in subsection 3(1) of the Family Assistance (Administration) Act to include the reference to the new requirement in new subsection 219M(4) inserted by item 17.

Item 14 - Subsection 219M(2)

Amends subsection 219M(2) to specify that a notice of intended cessation must be given the form, and in the manner or way, approved by the Secretary. As a result of the operation of section 4 of the Family Assistance (Administration) Act, the Secretary will be able to approve the provision of a notice by electronic means. As a matter of administration, approved child care services will be informed about the approved form, manner or way applicable to these notices. The requirement to provide a notice in a particular form, manner or way remains to be a civil penalty provision. Failure to comply with the requirement continues to be an offence.

Notes 1 and 2 inserted by item 14 inform the reader of the consequential alterations to the heading to section 219M and subsection 219M(1), respectively.

Item 15 - Subsection 219M(3) (penalty)

Subsection 219M(3) makes it an offence to contravene the notification requirement in subsection (1). Item 15 makes a technical amendment to subsection 219M(3) to omit superfluous words.

Item 16 - At the end of section 219M

Inserts three new subsections at the end of section 219M, namely subsections (4), (5) and (6).

The new subsections impose an obligation on an operator of an approved child care service who notified of the intention to cease to operate the service to provide to the Secretary further information about the cessation if the Secretary makes a written request to the operator. The information requested by the Secretary must be given within seven days after the day on which the request was given and in the form and in the manner or way approved by the Secretary. As a result of the operation of section 4 of the Family Assistance (Administration) Act, the Secretary will be able to approve the provision of a notice by electronic means. As a matter of administration, approved child care services will be informed about the approved form, manner or way applicable to these notices.

The same penalties, at the same level, apply for contravention of this new requirement as for contravention of the existing requirement in subsection 219M(1) to notify intention to cease to operate cessation of operation of the service; that is, the new requirement is a civil penalty provision, and a criminal penalty up to 60 penalty units may apply.

Items 17 and 18 - Subsection 219TSK(1) (table items 5 and 6) and subsection 219TSK(2) (table items 5 and 6)

Subsections 219TSK(1) and (2) set out the amount of penalty to be specified in an infringement notice issued in relation to the contravention of the current notification requirement in subsection 219M(1). Items 17 and 18 make consequential amendments to these subsections, so that the same penalty level applies to contravention of the new requirement in subsection 219M(4) relating to the provision of further information on request.

Item 19 - Application

Item 19 provides that the amendments made by this Part apply in relation to notices given under subsection 219M(1) of the Family Assistance (Administration) Act after the commencement of this Part. This Part commences on the 28th day after the day of Royal Assent.