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 1
-
Introduction
History
Div 1 inserted by No 22 of 2017, s 3 and Sch 1 item 40, effective 2 July 2018.
SECTION 85AB
Constitutional basis
85AB(1)
Without limitation, the provisions of this Act and the Family Assistance Administration Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers) rely on:
(a)
the Commonwealth
'
s legislative powers under paragraphs 51(xxiiiA), (xxix) and (xxxix) of the Constitution; and
(b)
any implied legislative powers of the Commonwealth.
85AB(2)
For the purposes of reliance on paragraph 51(xxix) of the Constitution and without limitation, the provisions of this Act and the Family Assistance Administration Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers) are intended to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note:
The Convention on the Rights of the Child is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
History
S 85AB inserted by No 22 of 2017, s 3 and Sch 1 item 40, effective 2 July 2018.
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