A New Tax System (Family Assistance) (Administration) Act 1999
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Hide history notePt 8 substituted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading. Pt 8 formerly read:
PART 8 - APPROVAL OF CHILD CARE SERVICES AND REGISTERED CARERS
Division 1 - Approval of child care services
SECTION 194 Application for approval
Who may apply
194(1)
A person who operates, or proposes to operate, any of the following kinds of child care service:
(a) a centre based long day care service;
(b) a family day care service;
(ba) an in-home care service;
(c) an occasional care service;
(d) an outside school hours care service;may apply to the Secretary to have the service approved for the purposes of the family assistance law.
HistoryS 194(1) amended by No 138 of 2000, s 3 and Sch 2 item 9, by inserting para (ba), effective 1 January 2001.
Exception - person is a registered carer
194(2)
However, a person cannot make an application under subsection (1) if the person is a registered carer.
Form of application
194(3)
An application under subsection (1) must:
(a) be made in a form and manner required by the Secretary; and
(b) state which of the kinds of service mentioned in subsection (1) the service is; and
(c) contain any information required by the Secretary; and
(d) be accompanied by any documents required by the Secretary; and
(e) in the case where a determination under section 206 is in force - be accompanied by the fee (if any) prescribed by the regulations for the making of applications under subsection (1).
194(4)
Despite subsection (1), an application is taken not to have been made if circumstances prescribed in an instrument under subsection (5) exist.HistoryS 194(4) inserted by No 22 of 2017, s 3 and Sch 3 item 3, applicable in relation to applications made on or after 5 April 2017.
194(5)
The Minister may, by legislative instrument, prescribe circumstances for the purposes of subsection (4).HistoryS 194(5) inserted by No 22 of 2017, s 3 and Sch 3 item 3, applicable in relation to applications made on or after 5 April 2017.
SECTION 195 Approval of child care services
Approval
195(1)
The Secretary must approve a child care service for the purposes of the family assistance law if the Secretary is satisfied that:
(a) an application has been made in accordance with section 194 to have the service approved; and
(b) the service is of the kind stated in the application; and
(ba) if the operator of the service is a large long day care centre operator - the operator is financially viable and is likely to remain so; and
(c) the service satisfies any eligibility rules applicable to the service under paragraph 205(1)(a); and
(d) in the case where the service is covered by a determination in force under section 206 - if the service were to be approved, child care places would be allocated to the service under section 207.HistoryS 195(1) amended by No 120 of 2011, s 3 and Sch 1 item 10, by inserting para (ba), effective 15 October 2011. For application provision see note under s 3(4B).
S 195(1) amended by No 79 of 2011, s 3 and Sch 5 item 8, by substituting " The " for " Subject to subsection (2), the " , applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
S 195(1) amended by No 53 of 2008, s 3 and Sch 5 item 17, by substituting " the service is covered by a determination in force under section 206 " for " a determination under section 206 is in force " in para (d), effective 25 June 2008.
S 195(1) amended by No 30 of 2003, s 3 and Sch 2 item 50, by substituting ``Subject to subsection (2), the Secretary ' ' for ``The Secretary ' ' , effective 15 April 2003.
195(1A)
For the purpose of paragraph (1)(ba), in determining whether the operator of the child care service is financially viable, and likely to remain so, the Secretary must have regard to any financial information provided under section 219GA in relation to the operator. The Secretary may take into account any other matters he or she considers relevant.HistoryS 195(1A) inserted by No 120 of 2011, s 3 and Sch 1 item 11, effective 15 October 2011. For application provision see note under s 3(4B).
195(2)
(Repealed by No 79 of 2011)HistoryS 195(2) repealed by No 79 of 2011, s 3 and Sch 5 item 9, applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
S 195(2) formerly read:
Refusal
195(2)
The Secretary may refuse to approve a child care service for the purposes of the family assistance law if:
(a) the service has previously been approved under section 195 for the purposes of the family assistance law; and
(b) while the approval mentioned in paragraph (a) was in force, any of the following applied:
(i) the Secretary did one or more of the things mentioned in paragraphs 200(1)(a) to (i) (which allow sanctions for breach of conditions for continued approval) in relation to the service;
(ia) the Secretary suspended the approval of the service under section 201A;
(ib) the Secretary suspended the approval of the service under section 219TSQ;
(ii) the service was convicted of an offence under this Act.S 195(2) amended by No 25 of 2011, s 3 and Sch 1 item 55, by substituting " paragraphs 200(1)(a) to (i) " for " paragraphs 200(1)(a) to (h) " in para (b)(i), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 195(2) amended by No 118 of 2007, s 3 and Sch 3 items 20 and 21, by substituting " any " for " either " in para (b) and inserting para (b)(ia) and (ib), effective 29 June 2007.
S 195(2) amended by No 118 of 2007, s 3 and Sch 1 item 77, by substituting " paragraphs 200(1)(a) to (h) " for " paragraphs 200(1)(a) to (e) " in para (b)(i), effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Certificate of approval
195(3)
If the Secretary approves the service, the Secretary must give the applicant a certificate of approval, stating:
(a) the kind of approved child care service; and
(b) the day from which the approval operates.HistoryS 195(3) substituted by No 45 of 2000, s 3 Sch 2 item 139, effective 1 July 2000. For transitional provisions see note under s 69. S 195(3) formerly read:
195(3)
If the Secretary approves the service, the Secretary must give the applicant a certificate of approval, stating the kind of approved child care service.
195(4)
For the purposes of paragraph (3)(b), the day from which the approval is expressed to operate:
(a) may be a day before the day the Secretary approves the service; but
(b) must not be a day that is earlier than 3 months before the day on which the application for the approval was made.HistoryS 195(4) amended by No 22 of 2017, s 3 and Sch 3 item 9, by substituting " 3 months " for " 6 months " in para (b), applicable in relation to applications made on or after 1 July 2017.
S 195(4) substituted by No 118 of 2007, s 3 and Sch 3 item 22, applicable in relation to applications for approvals that are made after 29 June 2007. S 195(4) formerly read:
195(4)
For the purposes of paragraph (3)(b), the day from which the approval is expressed to operate may be a day before the day the Secretary approves the service.S 195(4) inserted by No 45 of 2000, s 3 Sch 2 item 139, effective 1 July 2000. For transitional provisions see note under s 69.
Refusal
195(5)
The Secretary must refuse to approve a child care service for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).HistoryS 195(5) inserted by No 79 of 2011, s 3 and Sch 5 item 10, applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
195(6)
If the Secretary refuses to approve a child care service for the purposes of the family assistance law, the Secretary must give the applicant notice of:
(a) the refusal; and
(b) the reasons for the refusal; and
(c) the applicant ' s rights under this Act to seek a review of the refusal decision.HistoryS 195(6) inserted by No 79 of 2011, s 3 and Sch 5 item 10, applicable in relation to applications made under section 194 of the A New Tax System (Family Assistance) (Administration) Act 1999 on or after 26 July 2011.
SECTION 195A SECTION 195A Obligations and permissions of an approved child care service are those of the operator
195A
For the purposes of the family assistance law:
(a) when an obligation is imposed by that law or an approved child care service it is taken to be imposed on the person operating the service; and
(b) when a permission is conferred by that law on an approved child care service it is taken to be conferred on the person operating the service.SECTION 196 Conditions for continued approval - compliance with rules and lawsHistoryS 195A amended by No 79 of 2011, s 3 and Sch 3 items 4 and 5, by omitting " , and an instrument under that law " after " family assistance law " , and " or instrument " after " by that law " from paras (a) and (b), effective 22 August 2011.
S 195A inserted by No 50 of 2009, s 3 and Sch 5 item 9, effective 24 June 2009. No 50 of 2009, s 3 and Sch 5 item 10 contains the following application provision:
Application
(1)
Section 195A (as inserted) applies in relation to obligations imposed, and permissions conferred, before, at or after 24 June 2009.
(2)
For the purposes of section 195A (as inserted), 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.
Eligibility requirements
196(1)
It is a condition for the continued approval of an approved child care service that the service satisfies any eligibility rules that are from time to time applicable to the service under paragraph 205(1)(b).
Compliance with family assistance law
196(2)
It is a condition for the continued approval of an approved child care service that the service not contravene an obligation imposed on the service by the family assistance law (whether or not such a contravention constitutes an offence or is of a civil penalty provision).Note:
Enforcement under this Division of this and other conditions is not limited or affected by other compliance measures in this Act (for example, infringement notices, proceedings for civil penalty orders and prosecutions).
HistoryS 196(2) amended by No 53 of 2008, s 3 and Sch 4 items 4 and 5, by inserting " or is of a civil penalty provision " after " offence " and inserting the note at the end, applicable in relation to conduct happening wholly after 26 June 2008, where conduct means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2).
196(2A)
It is a condition for the continued approval of an approved child care service that the service cooperate with a person exercising powers under sections 219K, 219KA, 219L and 219LA.HistoryS 196(2A) amended by No 120 of 2011, s 3 and Sch 1 item 12, by substituting " , 219KA, 219L and 219LA " for " and 219L " , effective 15 October 2011. For application provision see note under s 3(4B).
S 196(2A) inserted by No 45 of 2000, s 3 Sch 2 item 140, effective 1 July 2000. For transitional provisions see note under s 69.
196(2B)
It is a condition for the continued approval of an approved child care service that the operator of the service cooperate with a person exercising powers under section 219KA.HistoryS 196(2B) inserted by No 120 of 2011, s 3 and Sch 1 item 13, effective 15 October 2011. For application provision see note under s 3(4B).
Compliance with Commonwealth, State and Territory laws
196(3)
It is a condition for the continued approval of an approved child care service that:
(a) the operation of the service; and
(b) the provision of care by the service; and
(c) the construction of the premises of the service; and
(d) the equipment at the premises of the service;comply with all applicable requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the service operates.
HistoryS 196(3) substituted by No 79 of 2011, s 3 and Sch 5 item 11, applicable on and after 26 July 2011, in relation to child care services approved before, on or after that commencement. S 196(3) formerly read:
Compliance with child care laws
196(3)
It is a condition for the continued approval of an approved child care service that the provision of care by the service complies with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the service is situated, relating to child care.
SECTION 196A SECTION 196A Conditions for continued approval - financial viability
196A
It is a condition for the continued approval of an approved child care service that the operator of the service, if a large long day care centre operator, be likely to remain financially viable.HistoryS 196A inserted by No 120 of 2011, s 3 and Sch 1 item 14, effective 15 October 2011. For application provision see note under s 3(4B).
SECTION 197 SECTION 197 Conditions for continued approval - child care places limit not to be exceeded
197
It is a condition for the continued approval of an approved child care service that, if the service is covered by a determination in force under section 206:
(a) child care places are allocated to the service under section 207; and
(b) the service does not provide child care places in excess of the number of any child care places allocated to the service under section 207.SECTION 198 Conditions for continued approval - compliance with conditions imposed by MinisterHistoryS 197 amended by No 53 of 2008, s 3 and Sch 5 item 18, by substituting " the service is covered by a determination in force under section 206 " for " a determination under section 206 is in force " , effective 25 June 2008.
198(1)
It is a condition for the continued approval of an approved child care service that the service complies with any instrument in force under this section.HistoryS 198(1) amended by No 108 of 2006, s 3 and Sch 8 item 59, by substituting " instrument " for " determination " , effective 27 September 2006.
Imposition of other conditions
198(2)
The Minister may, by legislative instrument, impose conditions for the continued approval of a class of approved child care services.HistoryS 198(2) amended by No 108 of 2006, s 3 and Sch 8 item 60, by substituting " by legislative instrument " for " by determination " , effective 27 September 2006.
SECTION 199 Conditions for continued approval - compliance with conditions imposed by Secretary
199(1)
It is a condition for the continued approval of an approved child care service that the service complies with any conditions imposed under subsection (2).
199(2)
The Secretary may, by notice to a particular approved child care service, impose conditions for the continued approval of the service.
SECTION 199A SECTION 199A Reassessment of continued approval
199A
The Secretary may at any time assess whether a child care service should continue to be approved for the purposes of the family assistance law.SECTION 200 Consequences of breach of conditions for continued approvalHistoryS 199A inserted by No 22 of 2017, s 3 and Sch 3 item 5, applicable to a child care service approved before, on or after 5 April 2017.
Sanctions
200(1)
If the Secretary is satisfied that an approved child care service has not complied, or is not complying, with a condition for the continued approval of the service, the Secretary may do one or more of the following:
(a) vary the conditions for the continued approval of the service imposed under subsection 199(2);
(b) impose additional conditions for the continued approval of the service under subsection 199(2);
(c) reduce the number of any child care places allocated to the service under section 207;
(d) suspend the service ' s approval;
(e) cancel the service ' s approval;
(f) withhold the payment of enrolment advances to the service under section 219RA;
(g) require the remittal to the Secretary of enrolment advances paid to the service under section 219RA;
(h) suspend, for a maximum of 3 weeks, payment under section 219Q or subsection 219QA(2) in respect of fee reduction;
(i)
suspend, for a maximum of 3 weeks, payment under section 219QC or subsection 219QD(2) in respect of child care rebate.HistoryS 200(1) amended by No 25 of 2011, s 3 and Sch 1 item 56, by inserting para (i), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 200(1) amended by No 53 of 2008, s 3 and Sch 5 item 19, by inserting " any " after " of " in para (c), effective 25 June 2008.
S 200(1) amended by No 118 of 2007, s 3 and Sch 1 item 78, by inserting paras (f), (g) and (h) at the end, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Notice of sanction
200(2)
If the Secretary does one or more of the things mentioned in paragraphs (1)(a) to (h), the Secretary must give notice to the service that the Secretary has done so. The notice must specify the day, no earlier than the day on which the notice is given, on which the sanction takes effect.HistoryS 200(2) amended by No 118 of 2007, s 3 and Sch 3 item 23, by inserting " The notice must specify the day, no earlier than the day on which the notice is given, on which the sanction takes effect. " at the end, applicable in relation to notices given on or after 29 June 2007.
S 200(2) amended by No 118 of 2007, s 3 and Sch 1 item 79, by substituting " paragraphs (1)(a) to (h) " for " paragraphs (1)(a) to (e) " , effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Revocation of suspension
200(3)
If the Secretary suspends the approval of an approved child service, the Secretary may at any time, by notice to the service, revoke the suspension with effect from the day specified in the notice.
Revocation of enrolment advance withholding
200(3A)
If the Secretary withholds the payment of enrolment advances to the service, the Secretary may at any time, by notice to the service, revoke the withholding with effect from the day specified in the notice.HistoryS 200(3A) inserted by No 118 of 2007, s 3 and Sch 1 item 80, effective 29 June 2007.
Revocation of suspension of payment in respect of fee reduction
200(3B)
If the Secretary suspends payment in respect of fee reduction, the Secretary may at any time, by notice to the service revoke the suspension. If the suspension is revoked, all payments under section 219Q or subsection 219QA(2) that would have been paid but for the suspension must be paid.HistoryS 200(3B) inserted by No 118 of 2007, s 3 and Sch 1 item 80, effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
Revocation of suspension of payment in respect of child care rebate
200(3C)
If the Secretary suspends payment in respect of child care rebate, the Secretary may at any time, by notice to the service revoke the suspension. If the suspension is revoked, all payments under section 219QC or subsection 219QD(2) that would have been paid but for the suspension must be paid.HistoryS 200(3C) inserted by No 25 of 2011, s 3 and Sch 1 item 57, applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
Secretary to have regard to any Ministerial determination
200(4)
The Secretary must have regard to any determination under subsection (5) in exercising a power under subsection (1) or (3).
Ministerial determination
200(5)
The Minister may, by legislative instrument, determine:
(a) factors to be taken into account by the Secretary in applying subsection (1) to approved child care services; or
(b) factors to be taken into account by the Secretary in specifying the date of effect of a revocation of a suspension under subsection (3).HistoryS 200(5) amended by No 108 of 2006, s 3 and Sch 8 item 61, by inserting " , by legislative instrument, " after " Minister may " , effective 27 September 2006.
SECTION 201 Procedure for imposing a sanction
201(1)
Before doing a thing mentioned in paragraphs 200(1)(a) to (i), the Secretary must give a notice to the service concerned that:
(a) states that the Secretary is considering doing the thing; and
(b) sets out the grounds for doing the thing; and
(c) summarises the evidence and other material on which those grounds are based; and
(d) summarises the effect of the doing of the thing (including the review process provided for under this Act) on a person ' s entitlement to child care benefit in respect of child care provided by the service; and
(e) invites the service to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.HistoryS 201(1) amended by No 25 of 2011, s 3 and Sch 1 item 58, by substituting " paragraphs 200(1)(a) to (i) " for " paragraphs 200(1)(a) to (h) " , applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
S 201(1) amended by No 118 of 2007, s 3 and Sch 1 item 81, by substituting " paragraphs 200(1)(a) to (h) " for " paragraphs 200(1)(a) to (e) " , effective 29 June 2007. For application and transitional provisions see note under Pt 8A heading.
201(2)
The Secretary must have regard to any submissions made by the service as mentioned in paragraph (1)(e) in deciding whether to do the thing.
SECTION 201A Immediate suspension for certain breaches
201A(1)
The Secretary may, by notice given to an approved child care service, suspend the approval of the service if the Secretary reasonably believes that:
(a) the service is not complying with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the service is situated, relating to child care; or
(b) there is an imminent threat to the health or safety of a child, or children, because of the care provided by the service to the child or children; or
(c) due to urgent circumstances, it is no longer appropriate for the service to provide child care.
201A(2)
The Secretary must, in the notice:
(a) specify a day, not earlier than the day on which the notice is given, on which the suspension is to take effect; and
(b) specify the grounds upon which the Secretary has suspended the service ' s approval; and
(c) inform the service of its rights under this Act to seek a review of the decision to suspend the service ' s approval.
201A(3)
If the Secretary suspends the approval of an approved child care service, the Secretary may at any time, by notice to the service, revoke the suspension with effect from the day specified in the notice.
SECTION 201B Publicising sanctions or suspensionsHistoryS 201A inserted by No 118 of 2007, s 3 and Sch 3 item 24, effective 29 June 2007.
201B(1)
If the Secretary:
(a) does one or more of the things mentioned in paragraphs 200(1)(a) to (i); or
(b) suspends the approval of a service under subsection 201A(1); the Secretary may publicise this in any way the Secretary thinks appropriate.HistoryS 201B(1) amended by No 25 of 2011, s 3 and Sch 1 item 59, by substituting " paragraphs 200(1)(a) to (i) " for " " paragraphs 200(1)(a) to (h) " in para (a), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
201B(2)
Without limiting subsection (1), the Secretary may publicise information that includes the following:
(a) the name and address of the service;
(b) the name of the operator of the service;
(c) if the information relates to the doing of one or more of the things mentioned in paragraphs 200(1)(a) to (i):
(i) the day when each thing done starts to have effect; and
(ii) the things done; and
(iii) each condition for the continued approval of the service that the service has not complied, or is not complying, with; and
(iv) the day (if any) when each thing done ceases to have effect;
(d) if the information relates to a suspension under subsection 201A(1):
(i) the day when the suspension starts to have effect; and
(ii) the grounds for the suspension; and
(iii) the day (if any) when the suspension ceases to have effect.HistoryS 201B(2) amended by No 25 of 2011, s 3 and Sch 1 item 59, by substituting " paragraphs 200(1)(a) to (i) " for " paragraphs 200(1)(a) to (h) " in para (c), applicable in relation to income years beginning on or after 1 July 2011. For transitional provisions see note under s 49C(1).
SECTION 202 CancellationHistoryS 201B inserted by No 53 of 2008, s 3 and Sch 5 item 20, applicable in relation to:
(a) a thing done under subsection 200(1) of the A New Tax System (Family Assistance) Administration) Act 1999 after 25 June 2008 (whether or not the thing is done in relation to non-compliance happening before that commencement); and (b) a decision to suspend under subsection 201A(1) of that Act made after that commencement (whether or not the grounds for the suspension happen before that commencement).
Scope of section
202(1)
This section sets out circumstances, in addition to those in section 200, in which the Secretary may, or must, cancel the approval of an approved child care service.
Cancellation on request
202(2)
The Secretary may cancel an approved child care service ' s approval if the service requests the Secretary in writing to do so.
Cancellation if service should not have been approved
202(3)
The Secretary must cancel an approved child care service ' s approval if the Secretary is satisfied that the service should not have been approved.
Cancellation if service fails to provide child care for 3 continuous months
202(4)
The Secretary must cancel an approved child care service ' s approval if the service fails to provide child care for a continuous period of 3 months, unless the Secretary is satisfied that, because of special circumstances affecting the service, the approval should not be cancelled.
202(4A)
The Secretary must cancel an approved child care service ' s approval if the service ceases to be operated by the person on whose application the approval was granted.HistoryS 202(4A) inserted by No 30 of 2003, s 3 and Sch 2 item 51, effective 15 April 2003.
Notice to service
202(5)
If the Secretary cancels an approved child care service ' s approval under this section, the Secretary must give notice to the service that the Secretary has done so.
Secretary to have regard to any Ministerial determination
202(6)
The Secretary must have regard to any determination under subsection (7) in exercising a power under subsection (2).
Ministerial determination
202(7)
The Minister may, by legislative instrument, determine factors to be taken into account by the Secretary in deciding whether to grant a request under subsection (2).HistoryS 202(7) amended by No 108 of 2006, s 3 and Sch 8 item 62, by inserting " , by legislative instrument, " after " Minister may " , effective 27 September 2006.
SECTION 203 Procedure for cancellation
203(1)
Before cancelling an approved child care service ' s approval under subsection 202(3) or (4), the Secretary must give a notice to the service that:
(a) states that the Secretary is considering cancelling the service ' s approval; and
(b) sets out the grounds on which the cancellation is being considered; and
(c) summarises the evidence and other material on which those grounds are based; and
(d) summarises the effect of the notice (including the review processes provided for under this Act) on a person ' s entitlement to child care benefit in respect of child care provided by the service; and
(e) invites the service to make written submissions to the Secretary, within 28 days, stating why the approval should not be cancelled.
203(2)
The Secretary must have regard to any submissions made by the service as mentioned in paragraph (1)(e) in deciding whether to cancel the approval.
SECTION 204 Notification of matters affecting eligibility for approval
204(1)
If an approved child care service has:
(a) after the service was approved, become aware of any matter existing when the service was approved as a result of which the service should not have been approved; or
(b) become aware of any matter occurring after the service was approved as a result of which a condition for the continued approval of the service has not been complied with;the service must notify the Secretary in writing of the matter as soon as practicable after becoming aware of it.
Note:
This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.
204(2)
An approved child care service commits an offence if the service contravenes subsection (1).Penalty: 20 penalty units.
SECTION 204A Notifying individuals about effect on entitlement to child care benefit of actions by approved child care servicesHistoryS 204 amended by No 53 of 2008, s 3 and Sch 4 items 6 to 8, by repealing the penalty and inserting the note and s 204(2) at the end, applicable in relation to conduct happening wholly after 26 June 2008, where conduct means an act, an omission to perform an act or a state of affairs. For further application provisions see note under subsection 219F(2). The penalty formerly read:
Penalty: 20 penalty units.
Breach of conditions by approved child care service
204A(1)
If the Secretary is satisfied that an approved child care service:
(a) has not complied with a condition for the continued approval of the service; or
(b) is not complying with a condition for the continued approval of the service; the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected if the Secretary were to suspend or cancel the service ' s approval because of the Secretary being so satisfied.
204A(2)
A notice under subsection (1) must:
(a) state that the Secretary is satisfied that the service has not complied, or is not complying, with a condition for the continued approval of the service; and
(b) set out the effect on that entitlement if the Secretary were to suspend or cancel the service ' s approval because of the Secretary being so satisfied. A notice under subsection (1) may set out any other information that the Secretary thinks relevant.
Suspension or cancellation of approved child care service ' s approval
204A(3)
If the Secretary suspends or cancels an approved child care service ' s approval, the Secretary may give a notice to an individual whose entitlement to be paid child care benefit may be affected because of the suspension or cancellation.
204A(4)
A notice under subsection (3) must:
(a) state that the Secretary has suspended or cancelled the service ' s approval; and
(b) set out the effect on that entitlement because of the suspension or cancellation. A notice under subsection (3) may set out any other information that the Secretary thinks relevant.
Form and manner or way of notice
204A(5)
A notice under this section must be in the form, and in the manner or way, approved by the Secretary.
SECTION 205 Eligibility rules for child care servicesHistoryS 204A inserted by No 118 of 2007, s 3 and Sch 3 item 25, effective 29 June 2007. No 118 of 2007, s 3 and Sch 3 item 43 contains the following application provision:
Application of item 25
(1)
Subsection 204A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 , as inserted, applies in relation to suspensions or cancellations that occur before or after 29 June 2007.
(2)
Subsection 204A(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 , as inserted, applies in relation to suspensions or cancellations that occur before or after 29 June 2007.
Eligibility rules
205(1)
The Minister may, by legislative instrument, determine:
(a) rules relating to the eligibility of child care services to become approved for the purposes of the family assistance law; and
(b) rules relating to the eligibility of those services to continue to be so approved.HistoryS 205(1) amended by No 108 of 2006, s 3 and Sch 8 item 63, by inserting " , by legislative instrument, " after " Minister may " , effective 27 September 2006.
Eligibility rules may deal with who may operate a service and change of operator of a service
205(2)
Without limiting subsection (1), rules made under that subsection may specify requirements:
(a) to be met by the operators and staff of services, including requirements relating to individual suitability to provide child care; and
(b) to be met by the operator of a service if the operation of the service is proposed to be transferred from one operator to another.
Exemption from eligibility rules
205(3)
The Secretary may also determine that one or more of the rules do not apply to:
(a) specified child care services; or
(b) child care services of a specified class or of specified classes.
205(4)
A determination under paragraph (3)(b) is a legislative instrument.HistoryS 205(4) inserted by No 108 of 2006, s 3 and Sch 8 item 64, effective 27 September 2006.
SECTION 206 SECTION 206 GUIDELINES FOR ALLOCATION OF CHILD CARE PLACES TO APPROVED CHILD CARE SERVICES
206
The Minister may, by legislative instrument, determine guidelines about the following:
(a) procedures relating to the allocation of child care places to approved child care services;
(b) matters to be taken into account in working out the number (if any) of child care places to be allocated to approved child care services;
(c) the maximum number of places that can be allocated to approved child care services in a specified class;
(d) any other matters to be taken into account in making such an allocation;
(e) procedures relating to the reduction under section 207A of the number of child care places allocated to approved child care services;
(f) matters to be taken into account in working out the number of child care places by which the number of child care places allocated to approved child care services may be reduced under section 207A;
(g) any other matters to be taken into account in reducing or deciding whether to reduce, under section 207A the number of child care places allocated to approved child care services.Note:
Guidelines under this section may refer to one or more classes of approved child care services (see subsection 13(3) of the Legislation Act 2003 ).
SECTION 207 Secretary to allocate child care placesHistoryS 206 amended by No 126 of 2015, s 3 and Sch 1 item 19, by substituting " Legislation Act 2003 " for " Legislative Instruments Act 2003 " in the note, effective 5 March 2016.
S 206 amended by No 53 of 2008, s 3 and Sch 5 item 21, by inserting the note at the end, effective 25 June 2008.
S 206 amended by No 108 of 2006, s 3 and Sch 8 item 65, by inserting " , by legislative instrument, " after " Minister may " , effective 27 September 2006.
S 206 amended by No 36 of 2006, s 3 and Sch 5 item 3, by inserting paras (e), (f) and (g) at the end, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 4 May 2006. This amendment does not affect the validity after 4 May 2006 of a determination that was in force under that section immediately before that commencement date.
Initial allocation of child care places
207(1)
The Secretary must allocate child care places to an approved child care service covered by a determination in force under section 206. The Secretary must do so in accordance with the determination.HistoryS 207(1) substituted by No 53 of 2008, s 3 and Sch 5 item 22, effective 25 June 2008. S 207(1) formerly read:
Initial allocation of child care places
207(1)
The Secretary must allocate child care places to approved child care services in accordance with any determination under section 206.
Additional allocation of child care places
207(2)
If an approved child care service is allocated child care places under subsection (1), the service may apply to the Secretary for an additional allocation of child care places.
207(3)
The application must:
(a) be made in a form and manner required by the Secretary; and
(b) contain any information required by the Secretary; and
(c) be accompanied by any documents required by the Secretary; and
(d) be accompanied by the fee (if any) prescribed by the regulations for the making of applications under subsection (2).
207(4)
The Secretary must, in accordance with the determination under section 206, decide whether or not to grant the application.
207(5)
The Secretary must give the applicant notice of the decision under subsection (4). If the Secretary decides to grant the application, the Secretary must allocate the additional child care places to the applicant.
SECTION 207A REDUCTION OF ALLOCATION OF CHILD CARE PLACES BY UNUSED OR UNUSABLE PLACES
207A(1)
The Secretary may, in accordance with a determination under section 206, reduce the number of child care places allocated to an approved child care service if:
(a) that number exceeds the number of child care places provided by the service; or
(b) that number exceeds the number of child care places that the service is, under a law of a State or Territory, licensed to provide.The reduction must not be greater than the excess.
207A(2)
Before the reduction, the Secretary must (unless subsection (3) applies) give a notice to the service that:
(a) states that the Secretary proposes to make the reduction; and
(b) states the number of places by which the Secretary proposes to reduce the number of places allocated to the service; and
(c) invites the service to make written submissions to the Secretary about the proposed reduction; and
(d) is not inconsistent with a determination under section 206.
207A(3)
If the service has informed the Secretary in writing that the number of child care places allocated to the service may be reduced, the Secretary may give the service a notice under subsection (2) before making the reduction.
207A(4)
The Secretary must have regard to any submissions made by the service in deciding whether to make the reduction.
207A(5)
If the Secretary reduces under this section the number of child care places allocated to an approved child care service, the Secretary must give the service a notice that states:
(a) the number of places by which the number of places allocated to the service is reduced; and
(b) the day on which the reduction takes effect, which must not be earlier than the day on which the notice is given; and
(c) the number of places allocated to the service, taking account of the reduction.
SECTION 207B EFFECT OF REDUCTION IN ALLOCATION OF CHILD CARE PLACESHistoryS 207A inserted by No 36 of 2006, s 3 and Sch 5 item 4, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 3 May 2006.
Act No 36 of 2006, s 3 and Sch 5 contains the following provision:
7 Effect of earlier voluntary relinquishment of places
(1)
This item applies if, before 4 May 2006:
(a) an approved child care service and an officer agreed that the service would voluntarily relinquish a number of child care places that had been allocated to the service; and
(b) the agreement was acknowledged in writing by an officer.
(2)
Division 1 of Part 8 of the A New Tax System (Family Assistance) (Administration) Act 1999 has effect on and after 4 May 2006 as if the number of places that the service agreed to relinquish had not been allocated to the service.
207B(1)
This section explains the effect of a reduction under this Division of the number of child care places allocated to an approved child care service.Note:
A reduction may be made under section 200 or section 207A.
207B(2)
This Division has effect after the reduction as if there had not been allocated to the service the number of places by which the number of places allocated to the service was reduced.Note:
This affects the operation of paragraph 197(b) for the service, It could also affect the making of allocations of child care places to other approved child care services after the reduction.
HistoryS 207B inserted by No 36 of 2006, s 3 and Sch 5 item 4, applicable in relation to the reduction of the number of places allocated to an approved child care service whether the allocation was made before, on or after 4 May 2006.
Act No 36 of 2006, s 3 and Sch 5 contains the following provision:
7 Effect of earlier voluntary relinquishment of places
(1)
This item applies if, before 4 May 2006:
(a) an approved child care service and an officer agreed that the service would voluntarily relinquish a number of child care places that had been allocated to the service; and
(b) the agreement was acknowledged in writing by an officer.
(2)
Division 1 of Part 8 of the A New Tax System (Family Assistance) (Administration) Act 1999 has effect on and after 4 May 2006 as if the number of places that the service agreed to relinquish had not been allocated to the service.
SECTION 208 SECTION 208 Disallowable instruments
208
(Repealed by No 108 of 2006)
HistoryS 208 repealed by No 108 of 2006, s 3 and Sch 8 item 66, effective 27 September 2006. S 208 formerly read:
SECTION 208 Disallowable instruments
208
A determination under subsection 198(2), 200(5), 202(7) or 205(1) or paragraph 205(3)(b) or section 206 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .Division 2 - Approval as registered carers
SECTION 209 Application for approval as registered carer
Who may apply
209(1)
An individual who provides care, or proposes to provide care, for a child or children may apply to the Secretary to be approved as a registered carer for the purposes of the family assistance law.
Exception - individual operates child care service etc
209(2)
However, an individual cannot make an application under subsection (1) if the individual:
(a) operates an approved child care service; or
(b) operates a child care service that is receiving financial assistance from the Commonwealth in connection with its operational costs, where the provision of that assistance is administered by the Department; or
(c) provides child care under a contract with an approved family day care service; or
(d) provides child care under a contract with an approved in-home care service.HistoryS 209(2) amended by No 138 of 2000, s 3 and Sch 2 item 10, by inserting para (d), effective 1 January 2001.
Form of application
209(3)
An application under subsection (1) must:
(a) be made in a form and manner; and
(b) contain any information; and
(c) be accompanied by any documents;required by the Secretary.
SECTION 210 Approval of registered carers
Registration
210(1)
The Secretary must approve an individual as a registered carer for the purposes of the family assistance law if:
(a) the individual has made an application in accordance with section 209; and
(b) the individual either:
(i) meets the age requirement in subsection (2); or
(ii) has a qualification of a kind specified in a determination under subsection (4); and
(c) the Secretary is satisfied that the applicant meets the requirements of section 211.
Age requirement
210(2)
For the purposes of subparagraph (1)(b)(i), an individual meets the age requirement if:
(a) in the case where a determination under subsection (3) is in force - the individual has turned the age specified in the determination; or
(b) in any other case - the individual has turned 18.
210(3)
The Minister may, by legislative instrument, determine that an individual must have turned the age specified in the determination for the individual to be eligible to be approved as a registered carer.HistoryS 210(3) amended by No 108 of 2006, s 3 and Sch 8 item 67, by inserting " , by legislative instrument, " after " Minister may " , effective 27 September 2006.
Qualification requirement
210(4)
The Minister may, by legislative instrument, determine that an individual who does not meet the age requirement in subsection (2) must have a qualification of a kind specified in the determination for the individual to be eligible to be approved as a registered carer.HistoryS 210(4) amended by No 108 of 2006, s 3 and Sch 8 item 68, by inserting " , by legislative instrument, " after " Minister may " , effective 27 September 2006.
Certificate of approval of registration
210(5)
If the Secretary approves an applicant as a registered carer, the Secretary must give the applicant a certificate of approval.
SECTION 211 Statement that applicant has tax file number
211(1)
An applicant meets the requirements of this section if:
(a) the applicant has a tax file number; and
(b) the application contains a statement to that effect.
211(2)
The Secretary must accept a statement made under paragraph (1)(b) unless the Commissioner of Taxation has informed the Secretary that the applicant does not have a tax file number.
211(3)
This section does not authorise the Secretary:
(a) to require or request a person to quote the person ' s tax file number; or
(b) to seek or obtain, in any way, a person ' s tax file number; or
(c) to record a person ' s tax file number.
211(4)
The Secretary may ask the Commissioner of Taxation to provide information on whether an applicant has a tax file number.
SECTION 212 When approval comes into force
212(1)
An approval of an applicant as a registered carer is taken to have come into force on the later of the following days:
(a) the day on which, in the Secretary ' s opinion, the applicant was first eligible to be approved;
(b) the day occurring 12 months before the day on which the application for approval was made.
212(2)
Subject to this Division, an approval remains in force at all times after it came into force.
212(3)
If the Secretary is satisfied that the applicant was not eligible to be approved during a period occurring after the day the applicant ' s approval came into force but before the day on which the application was made, the Secretary may determine that the approval is taken not to have been in force during that period.
SECTION 213 Conditions of continued approval
Compliance with child care laws
213(1)
It is a condition for the continued approval of an individual as a registered carer that the provision of care by the individual complies with all applicable requirements imposed by a law of the Commonwealth, or of the State or Territory in which the care is provided, relating to child care.
Conditions imposed by notice on individual
213(2)
The Secretary may, by notice to a particular registered carer, impose other conditions for the continued approval of the carer.
Conditions imposed by Minister
213(3)
The Minister may, by legislative instrument, impose other conditions for the continued approval of individuals as registered carers.HistoryS 213(3) amended by No 108 of 2006, s 3 and Sch 8 item 69, by substituting " by legislative instrument " for " by determination " , effective 27 September 2006.
SECTION 214 Consequences of breach of conditions for continued approval
Sanctions
214(1)
If the Secretary is satisfied that a registered carer has not complied, or is not complying, with a condition for the continued approval of the carer, the Secretary may do one or more of the following:
(a) vary the conditions for the continued approval of the carer imposed under subsection 213(2);
(b) impose additional conditions for the continued approval of the carer under subsection 213(2);
(c) suspend the carer ' s approval;
(d) cancel the carer ' s approval.
Notice of sanction
214(2)
If the Secretary does one or more of the things mentioned in paragraphs (1)(a) to (d), the Secretary must give notice to the registered carer that the Secretary has done so.
Revocation of suspension
214(3)
If the Secretary suspends the approval of a registered carer, the Secretary may at any time, by notice to the carer, revoke the suspension with effect from the day specified in the notice.
Secretary to have regard to any Ministerial determination
214(4)
The Secretary must have regard to any determination under subsection (5) in exercising a power under subsection (1) or (3).
Ministerial determination
214(5)
The Minister may, by legislative instrument, determine:
(a) factors to be taken into account by the Secretary in applying subsection (1) to registered carers; or
(b) factors to be taken into account by the Secretary in specifying the date of effect of a revocation of a suspension under subsection (3).HistoryS 214(5) amended by No 108 of 2006, s 3 and Sch 8 item 70, by inserting " , by legislative instrument, " after " Minister may " , effective 27 September 2006.
SECTION 215 Procedure for imposing a sanction
215(1)
Before doing a thing mentioned in paragraphs 214(1)(a) to (d), the Secretary must give a notice to the registered carer concerned that:
(a) states that the Secretary is considering doing the thing; and
(b) sets out the grounds for doing the thing; and
(c) summarises the evidence and other material on which those grounds are based; and
(d) summarises the effect of the doing of the thing (including the review process provided for under this Act) on a person ' s entitlement to child care benefit in respect of child care provided by the carer; and
(e) invites the carer to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.
215(2)
The Secretary must have regard to any submissions made by the carer as mentioned in paragraph (1)(e) in deciding whether to do the thing.
SECTION 216 Cancellation
Scope of section
216(1)
This section sets out circumstances, in addition to those in section 214, in which the Secretary must cancel the approval of a registered carer.
Cancellation on request
216(2)
The Secretary must cancel a registered carer ' s approval if the carer requests the Secretary in writing to do so.
Cancellation if carer should not have been approved
216(3)
The Secretary must cancel a registered carer ' s approval if the Secretary is satisfied that the carer should not have been approved.
Notice to service
216(4)
If the Secretary cancels a registered carer ' s approval under this section, the Secretary must give notice to the carer that the Secretary has done so.
SECTION 217 Procedure for cancellation under subsection 216(3)
217(1)
Before cancelling a registered carer ' s approval under subsection 216(3), the Secretary must give a notice to the carer that:
(a) states that the Secretary is considering cancelling the carer ' s approval; and
(b) sets out the grounds on which the cancellation is being considered; and
(c) summarises the evidence and other material on which those grounds are based; and
(d) summarises the effect of the notice (including the review processes provided for under this Act) on a person ' s entitlement to child care benefit in respect of child care provided by the carer; and
(e) invites the carer to make written submissions to the Secretary, within 28 days, stating why the approval should not be cancelled.
217(2)
The Secretary must have regard to any submissions made by the carer as mentioned in paragraph (1)(e) in deciding whether to cancel the approval.
SECTION 218 SECTION 218 Notification of matters affecting eligibility for approval
218
If a registered carer has:
(a) after the carer was approved, become aware of any matter existing when the carer was approved as a result of which the carer should not have been approved; or
(b) become aware of any matter occurring after the carer was approved as a result of which a condition for the continued approval of the carer has not been complied with;the carer must notify the Secretary in writing of the matter as soon as practicable after becoming aware of it.
Penalty: 20 penalty units.
SECTION 219 SECTION 219 Disallowable instruments
219
(Repealed by No 108 of 2006)
HistoryS 219 repealed by No 108 of 2006, s 3 and Sch 8 item 71, effective 27 September 2006. S 219 formerly read:
SECTION 219 Disallowable instruments
219
A determination under subsection 210(3) or (4), 213(3) or 214(5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
Div 4 inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
The Secretary may vary the approval of an approved provider to remove an approved child care service from the approval if:
(a) the service fails to provide child care for a continuous period of 3 months; and
(b) none of the following apply:
(i) the provider ' s approval with respect to the service is suspended under section 197AA for any part of the 3 month period;
(ii) the service is subject to a determination under section 195C that the service need not operate for the period;
(iii) the Secretary is satisfied that, because of special circumstances affecting the service, the provider ' s approval should not be so varied.
S 197G(1) amended by No 84 of 2020, s 3 and Sch 1 item 7, by substituting para (b)(ii) and (iii), effective 13 December 2019. Para (b)(ii) and (iii) formerly read:
(ii) all approved child care services of the provider are subject to a determination under section 195C that the service need not operate for the period;
(iii) the Secretary is satisfied that, because of special circumstances affecting the provider, the provider ' s approval should not be cancelled.
S 197G(1) amended by No 125 of 2019, s 3 and Sch 2 item 20, by substituting para (b), effective 13 December 2019. Para (b) formerly read:
(b) neither of the following apply:
(i) the service is subject to a determination under section 195C that the service need not operate for the period;
(ii) the Secretary is satisfied that, because of special circumstances affecting the service, the provider ' s approval should not be so varied.
197G(2)
If the Secretary varies the provider ' s approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).
197G(3)
Before varying the provider ' s approval, the Secretary must request, in writing, that the provider provide, within 14 days, evidence that the provider is operating the service.
197G(4)
The Secretary must have regard to any response to the request in deciding whether to vary the approval.
S 197G inserted by No 22 of 2017, s 3 and Sch 1 item 205, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 3A heading.
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