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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Child Care
Legislation Amendment Bill 1996
No. ,
1996
(Health and Family
Services)
A Bill for an Act to amend the
Child Care Act 1972 and the Childcare Rebate Act 1993, and for
related purposes
9612520—1,050/3.10.1996—(125/96) Cat.
No. 96 5218
3 ISBN 0644
47713X
Contents
A Bill for an Act to amend the Child Care Act 1972
and the Childcare Rebate Act 1993, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Child Care Legislation Amendment Act
1996.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Schedule 1 commences on 1 July 1997.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 Section 11
Repeal the section.
2 Subsection 20(6)
Omit “11(19) or”.
3 Section 24
Omit “11(19) or”.
1 Subsection 3(4)
Omit “not”, substitute “not,”.
2 Section 4
Insert:
business partner means a partner in a partnership between 2
or more persons carrying on a business of providing child care.
3 Section 4
Insert:
partner, except in the expression “business
partner”, has the meaning given by subsection 5(2).
4 Section 4 (paragraph (b) of the definition of
parental member)
Omit “(within the meaning of subsection 5(2))”.
5 Subsection 5(2)
Omit “purpose of paragraph (1)(b)”, substitute “purposes
of this Act”.
6 Paragraph 5(4)(b)
Repeal the paragraph, substitute:
(b) members of 2 or more families are legally responsible (whether alone
or jointly with a person who is, or is not, a member of either or any of those
families) for the day-to-day care, welfare and development of the
child.
7 At the end of section 10
Add:
(2) If a person who is not a parent of a particular child under subsection
(1) has the day-to-day care of the child on a long term basis (otherwise than in
the course of carrying on a business of providing care or a business of a
pre-school), the Commission may determine, in writing, that the person is taken
to be a parent of the child.
(3) A person may apply in writing to the Commission for a determination
under this section.
(4) In making determinations under this section, the Commission must
comply with any guidelines made under section 62AA in relation to the making of
such determinations.
8 Subsection 11(1)
Omit “subsection (2)”, substitute “this
section”.
9 After subsection 11(1)
Insert:
(1A) Subject to subsection (2), a child is a dependent child of another
person if the other person is taken, by a determination in force under
subsection 10(2), to be a parent of the child.
10 At the end of section 16
Add:
(4) In making determinations under this section, the Commission must
comply with any guidelines made under section 62AA in relation to the making of
such determinations.
11 Section 17
Repeal the section.
12 Subsections 27(1), (2) and
(3)
Repeal the subsections, substitute:
(1) Subject to subsection (4):
child care means:
(a) care of a child provided:
(i) at the child’s home; or
(ii) at the home of a registered carer who is providing the care;
or
(iii) at a child care centre within the meaning of section 4A of the
Child Care Act 1972; or
(b) care of a child that is provided otherwise than as mentioned in
paragraph (a) if there is in force a determination by the Commission stating
that care of that kind provided to a child constitutes child care for the
purposes of this Act.
(2) The Commission may, in writing, make determinations for the purposes
of paragraph (1)(b) of the definition of child care in subsection
(1).
(3) A person may apply in writing to the Commission for a determination
under this section.
(4) In making determinations under this section, the Commission must
comply with any guidelines made under section 62AA in relation to the making of
such determinations.
13 Paragraph 36(c)
Repeal the paragraph, substitute:
(c) the claim relates to child care provided by a registered carer
to:
(i) the registered carer’s own dependent children; or
(ii) if the registered carer has a partner or a business
partner—dependent children of the partner or business partner;
or
14 At the end of section 36
Add:
(2) Paragraph (1)(d) does not prevent childcare rebate from being payable
in respect of a claim in circumstances determined by the Minister.
(3) A determination under subsection (2) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
15 After section 36
Insert:
(1) Subject to this section, the Commission is to make a decision on a
claim within 14 days after the claim is made.
(2) If:
(a) the Commission considers that childcare rebate may not be payable in
respect of a claim; and
(b) the Commission wishes to make further inquiries into matters relevant
to the claim;
the Commission must, as soon as practicable, give notice in writing to the
parental member of the family who made the claim:
(c) stating that the Commission considers that childcare rebate may not be
payable in respect of the claim; and
(d) stating that the Commission wishes to make further inquiries and
setting out the matters into which the Commission wishes to make those
inquiries.
(3) If the Commission gives a notice under subsection (2) in respect of a
claim, the Commission may defer the making of a decision on the claim
until:
(a) the end of 28 days after the day on which the notice was given;
or
(b) the Commission is satisfied as to whether or not childcare rebate is
payable in respect of the claim;
whichever first occurs.
(4) If the Commission gives a notice under subsection (2) but has not
informed the claimant in writing of its decision on the claim before the end of
the period referred to in paragraph (3)(a), the Commission is taken to have made
a decision that childcare rebate is not payable in respect of the
claim.
Note: A decision that childcare rebate is not payable in
respect of a claim is reviewable under Division 3 of Part 5.
(1) If:
(a) the Commission considers that the registration of a family or of a
carer may have to be cancelled; and
(b) the Commission wishes to make further inquiries into matters relevant
to the possible cancellation of the registration;
the Commission may, by written notice to a parental member of the family or
the carer, as the case may be, suspend the payment of childcare rebate in
respect of a child of the family or a child to whom the carer is providing care,
as the case may be.
(2) A suspension of the payment of childcare rebate in respect of a child
that is made under subsection (1) continues until:
(a) the end of 28 days after the day on which the notice was given;
or
(b) the Commission, by written notice to the parental member or carer, as
the case may be, revokes the suspension; or
(c) the relevant registration is cancelled;
whichever first happens.
(3) A suspension of the payment of childcare rebate under subsection (1)
is taken never to have affected the payability of childcare rebate if the period
of the suspension ends under paragraph (2)(a) or (b).
16 Section 38
After “However,”, insert “except in circumstances
determined by the Minister,”.
17 At the end of section 38
Add:
(2) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
18 Sections 45 and 46
Repeal the sections, substitute:
Rebate percentage
(1) The rebate percentage that applies in working out the childcare rebate
for a week (the current week) is:
(a) 30% if a family payment notice, or family income notice, under section
46 applies to either parental member for the current week; or
(b) 20% in all other cases.
Amount of rebate—claims less than the maximum claimable
amount
(2) If the claimant’s weekly child care expenditure for the current
week:
(a) exceeds the minimum weekly threshold; and
(b) is less than the claimant’s maximum claimable amount for the
current week;
then the amount of childcare rebate payable on the claim for the current
week is worked out using the formula:
Amount of rebate—claims equal to or greater than the maximum
claimable amount
(3) If the claimant’s weekly child care expenditure for the current
week equals or exceeds the claimant’s maximum claimable amount for the
current week, then the amount of childcare rebate payable on the claim for the
current week is worked out using the formula:
Reduction of rebate if other claims already made
(4) If the claimant, or another member of the claimant’s family, has
previously made any other claims relating to child care provided during the
current week, then the rebate calculated under subsection (1) or (2) is reduced
by the amounts of childcare rebate paid or payable in respect of those other
claims.
Issue of family payment notice
(1) The Secretary may issue a notice (a family payment
notice) to a person stating that the person is receiving, or will
receive, family payment. The notice has effect from a date specified in the
notice (which may be earlier than the date on which the notice is
issued).
Issue of family income notice
(2) The Secretary may issue a notice (a family income
notice) to a person stating that the person satisfies the family income
test. The notice has effect from a date specified in the notice (which may be
earlier than the date on which the notice is issued).
Cancellation of notices by Secretary
(3) The Secretary may issue a notice to a person cancelling a family
payment notice or family income notice previously issued to the person. The
cancellation has effect from a date specified in the cancellation notice (which
may be earlier than the date on which the cancellation notice is
issued).
Note: A cancellation notice might result in an overpayment
for the purposes of section 61. For example, if the cancellation has effect for
a week for which childcare rebate has already been paid at the 30%
rate.
Matters relevant to issue or cancellation of notices by
Secretary
(4) In deciding whether to issue or cancel a family payment notice or
family income notice, the only matters that the Secretary may take into account
are the matters that can be taken into account under the Social Security Act
1991 in deciding whether a person should receive family payment or whether a
person satisfies the family income test.
Recipient of notice to notify Commission of cancellation
(5) A person to whom a cancellation notice is issued must notify the
Commission in writing of the cancellation, and its date of effect, within 14
days after receiving the cancellation notice.
Penalty: 20 penalty units.
Termination of family income notice by parental member
(6) A family income notice issued to a parental member may be terminated
by either parental member by giving a written termination notice to the
Commission. The termination has effect from a date specified in the termination
notice (which may be earlier than the date on which the termination notice is
given to the Commission).
Review of decisions relating to notices
(7) Chapter 6 of the Social Security Act 1991 applies to the
following decisions as if they were specified in subsection 1240(1) of that
Act:
(a) a decision not to issue a family payment notice or family income
notice;
(b) a decision under subsection (3) to cancel a family payment notice or
family income notice.
Manner of giving notices
(8) A notice by the Secretary to a person under this section may be
included in any other notice issued or given to the person under the Social
Security Act 1991.
(9) A notice by the Secretary under this section that is not included in
another notice in accordance with subsection (8) may be given personally or by
post.
No implied power to vary or revoke notices
(10) Subsection 33(3) of the Acts Interpretation Act 1901 does not
apply to any notice issued or given under this section.
Requirement to provide information
(11) When issuing a family payment notice or family income notice, the
Secretary may include a requirement that the person to whom the notice is issued
must notify the Secretary, within a reasonable period specified in the notice,
if:
(a) a stated event or change of circumstances occurs; or
(b) the person becomes aware that a stated event or change of
circumstances is likely to occur.
The stated event or change of circumstances must be relevant to a decision
of the Secretary as to whether the family payment notice or family income notice
ought to be cancelled.
(12) If the Secretary has issued a family payment notice or family income
notice to a person, the Secretary may issue a notice to the person under this
subsection requiring the person to give the Secretary, within a reasonable
period specified in the notice, a written statement about a matter that might be
relevant to a decision of the Secretary as to whether the family payment notice
or family income notice ought to be cancelled.
(13) A notice that contains a requirement under subsection (11) or (12)
for a person to give information or a statement to the Secretary must state how
the recipient is to give the information or statement. However, the notice is
not invalid merely because it fails to comply with this subsection.
(14) A requirement under subsection (11) or (12) in relation to a family
income notice does not apply at any time after the family income notice is
terminated under subsection (6).
(15) A person must not, without reasonable excuse,
refuse or fail to comply with a requirement under subsection (11) or (12) to the
extent that the person is capable of complying with the notice.
Penalty: 20 penalty units.
Delegation by Secretary
(16) The Secretary may by signed instrument delegate to an officer of the
Department of Social Security all or any of the powers of the Secretary under
this section.
Interpretation
(17) In this section:
family income test means the family income test set out in
Module C of the Family Tax Payment Rate Calculator in section 1070 of
the Social Security Act 1991.
family payment means family payment under the Social
Security Act 1991.
Secretary means the Secretary to the Department of Social
Security.
19 After subsection 48(1)
Insert:
(1A) Anything done under this Act by the Managing Director, or by a member
of the Commission’s staff in the name of the Managing Director, is taken
to have been done by the Commission.
20 Paragraph 49(4)(b) (other than the
note)
Repeal the paragraph, substitute:
(b) give written notice to the applicant setting out:
(i) the number so issued; and
(ii) the day on which the registration is taken to have had effect;
and
(iii) the periods (if any) during which the registration is taken, because
of subsection (3B), not to have had effect; and
(iv) the matters of which the applicant is required to notify the
Commission under subsection 50A(1).
21 Paragraph 50(1)(a)
Repeal the paragraph, substitute:
(a) the applicant is providing, or intends within a reasonable time after
making the application to provide, child care to children other than:
(i) the applicant’s own dependent children; and
(ii) if the applicant has a partner or a business partner—dependent
children of the partner or business partner; and
22 After section 50
Insert:
(1) If a person who is a registered carer:
(a) has, after the person was registered and whether before or after the
commencement of this section, become aware of any matter existing when the
person was registered as a result of which the person was ineligible for
registration; or
(b) has, whether before or after the commencement of this section, become
aware of any matter occurring after the person was registered as a result of
which the person is no longer eligible for registration;
the person must notify the Commission in writing of the matter as soon as
practicable after:
(c) the person became aware of the matter; or
(d) the commencement of this section;
whichever is the later.
Penalty: 20 penalty units.
(2) The Commission must determine the matters of which registered carers
are required to notify the Commission under subsection (1).
(3) In making determinations under subsection (2), the Commission must
comply with any guidelines made under section 62AA in relation to the making of
such determinations.
23 Section 53
Omit “An application may be made to the Commission for
reconsideration of any of the following decisions”, substitute “The
following decisions are reviewable decisions for the purposes of this
Act”.
24 Before paragraph 53(a)
Insert:
(aa) a refusal to make a determination under section 10 that a person is
taken to be a parent of a particular child;
25 At the end of section 53
Add:
; (j) a decision under subsection 36AB(1) to suspend payment of childcare
rebate.
26 Subsection 61(4)
Omit “of the Commission”.
27 At the beginning of Part
6
Insert:
(1) If a section of this Act contains a provision declaring that the
Commission must, in making determinations under that section, comply with any
guidelines made under this section in relation to the making of such
determinations, the Minister may make guidelines about the making of such
determinations.
(2) The guidelines are disallowable instruments for the purposes of
section 46A of the Acts Interpretation Act 1901.
28 Saving provision
A guideline that was in force immediately before the commencement of item
11, under section 17 of the Childcare Rebate Act 1993 as then in force,
continues in force as if it had been made under section 62AA of the Childcare
Rebate Act 1993.
29 Application of
amendments relating to rebate percentage
The amendment made by item 14 applies to the calculation of childcare
rebate for the week starting on 7 April 1997, and for all later weeks.