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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Child Care
Legislation Amendment Bill 1998
No. ,
1998
(Health and Family
Services)
A Bill for an Act to amend
legislation relating to child care, and for related
purposes
ISBN: 0644 516674
Contents
Child Care Act
1972 0644516674.html
Child Care Payments Act
1997 0644516674.html
Child Care Payments (Consequential Amendments and Transitional
Provisions) Act 1997 0644516674.html
Childcare Rebate Act 1993 0644516674.html
A Bill for an Act to amend legislation relating to child
care, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Child Care Legislation Amendment Act
1998.
(1) Sections
1, 2, 3 and 4 and items 16 and 17 of Schedule 1 commence on the day on which
this Act receives the Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act
commence on a day to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) does not commence under
that subsection within the period of 6 months beginning on the day on which this
Act receives the Royal Assent, it commences on the first day after the end of
that period.
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Act is amended or repealed as set out in the applicable items in the Schedule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) The regulations may deal with transitional matters relating to the
amendments made by Schedule 1 to this Act.
(2) The Governor-General may make regulations for the purposes of this
section.
1 Section 4
Insert:
Agency means the Commonwealth Services Delivery Agency
established by the Agency Act.
Agency Act means the Commonwealth Services Delivery Agency
Act 1997.
Australian Immunisation Handbook means the latest edition of
the Australian Immunisation Handbook published by the Australian Government
Publishing Service.
CEO, in relation to the Agency, means the Chief Executive
Officer of the Agency.
conscientious objection, in relation to the immunisation of a
child, has the same meaning as in the Child Care Payments Act
1997.
eligibility requirements means the requirements referred to
in paragraph 4C(1A)(a).
immunised has the same meaning as in the Child Care
Payments Act 1997.
information includes estimates.
officer means a person performing duties, or exercising
powers or functions, under or in relation to this Act and, in relation to a
provision of Part IIIA, includes:
(a) a person who has been such a person; and
(b) a person who is or has been appointed or employed by the Commonwealth
and who, as a result of that appointment or employment, may acquire or has
acquired information about a person under this Act; and
(c) a person who, although not appointed or employed by the Commonwealth,
performs or performed services for the Commonwealth and who, as a result of
performing those services, may acquire or has acquired information about a
person under this Act.
protected information means:
(a) information about a person or a child care service that is or was held
in the records of the Department, the Health Insurance Commission or the Agency;
or
(b) information that there is no information about a person or a child
care service held in such records.
recognised immunisation provider has the same meaning as in
section 46A of the Health Insurance Act 1973.
service arrangements has the same meaning as in the Agency
Act.
2 At the end of section 4
Add:
(2) For the purposes of this Act, a thing is taken to be done or required
for a permitted purpose if it is done or required:
(a) for the purposes of this Act; or
(b) for the purposes of the Social Security Act 1991; or
(c) for the purposes of making a payment to the operator of an approved
child care service by way of a grant of a similar kind to grants made under
section 12A.
3 At the end of subsection
4B(2)
Add “, and the determination is not suspended or has not been
cancelled”.
4 At the end of section 4B
Add:
(3) A determination in relation to a child care centre made under
subsection (2), whether before or after the commencement of this subsection, is
subject to the following conditions:
(a) the child care centre must continue to satisfy the eligibility
requirements;
(b) the child care centre must hold an allocation of child care
places;
(c) the child care centre must not exceed its child care place
limit;
(d) the provision of child care by the child care centre must comply with
all applicable requirements imposed by a law of the Commonwealth, or of the
State or Territory where the centre is situated, relating to child
care;
(e) such other conditions as the Secretary may impose by written notice to
the operator of the child care centre;
(f) such other conditions as the Minister may impose by determination
published in the Gazette on a class of child care centres that includes
the child care centre.
(4) For the purposes of paragraph (3)(c), a child care centre is taken to
exceed its child care place limit if, at any particular time, the number of
children receiving child care at the centre is greater than the number of places
in the centre’s allocation of child care places.
5 Subsection 4C(1)
Repeal the subsection, substitute:
(1) The Minister may, by determination in writing, make
guidelines:
(a) with respect to the exercise of the Minister’s powers under
section 4B; or
(b) with respect to the exercise of the Secretary’s powers under
section 12F.
(1A) The guidelines may specify:
(a) the requirements that a child care centre or its operator, or both,
must satisfy before the child care centre can be determined to be an eligible
child care centre, for the purposes of section 12A; and
(b) procedures relating to the allocation (including re-allocation) of
child care places; and
(c) matters to be taken into account in working out the number of child
care places to be allocated to eligible child care centres; and
(d) the maximum number of places that can be allocated to eligible child
care centres in a specified class; and
(e) any other matters to be taken into account in making such an
allocation.
6 After section 4C
Insert:
After 31 December 1999, paragraphs 4B(3)(b) and (c) and 4E(1)(c) do not
apply.
(1) The Secretary may impose one or more of the following sanctions on an
eligible child care centre if satisfied that it has breached a condition
mentioned in subsection 4B(3):
(a) vary the conditions imposed under paragraph 4B(3)(e);
(b) impose additional conditions under that paragraph;
(c) reduce the number of places in the centre’s allocation of child
care places;
(d) suspend the determination made under subsection 4B(2) in relation to
the child care centre;
(e) cancel that determination.
(2) The Minister may determine, in writing, matters to be taken into
account in imposing a sanction under this section.
(3) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) Before imposing a sanction on an eligible child care centre under
section 4E, the Secretary must give the operator of the centre a written
notice:
(a) stating that the Secretary is considering imposing the sanction;
and
(b) setting out the grounds on which the Secretary is considering imposing
the sanction; and
(c) summarising the evidence and other material on which those grounds are
based; and
(d) summarising the effect of the notice (including the review provided
for by section 4G) and of the sanction that the Secretary is considering
imposing; and
(e) inviting the operator to make written submissions to the Secretary
within 28 days, stating why the sanction should not be imposed.
(2) In deciding whether to impose the sanction, the Secretary must have
regard to any submissions made by the operator as mentioned in paragraph
(1)(e).
An application may be made to the Administrative Appeals Tribunal for the
review of:
(a) a decision to impose a condition under paragraph 4B(3)(e);
and
(b) a decision to impose a sanction under section 4E.
7 After the heading to Part
III
Insert:
8 After subparagraph
12A(1)(a)(i)
Insert:
(ia) in verifying, for the purpose of assessing the amount of fee relief
payable to the operator of an eligible child care centre, the work related
circumstances of the families of children in economic need; and
(ib) in identifying, for the purposes of assessing the amount of fee
relief payable to the operator of an eligible child care centre, children
receiving child care at an eligible child care centre as children to whom
special circumstances apply; and
(ic) in identifying, for the purposes of assessing the amount of fee
relief payable to the operator of an eligible child care centre, whether or not
special circumstances apply to the child care centre; and
9 After subsection 12A(1)
Insert:
(1A) The reference in subparagraph (1)(a)(ia) to verifying the work
related circumstances of a family is a reference to deciding whether each
parental member of the family is a person to whom any of the following
applies:
(a) the person has recognised work or work related commitments within the
meaning of section 29 of the Childcare Rebate Act 1993;
(b) the person has recognised training commitments within the meaning of
section 30 of that Act;
(c) the person has recognised study circumstances within the meaning of
section 31 of that Act;
(d) the person is covered by a determination under subsection 28(2) of
that Act.
10 At the end of section
12A
Add:
(4) In this section:
family, in relation to verification of a kind referred to in
subparagraph (1)(a)(ia), has the same meaning as it would have in section 5 of
the Childcare Rebate Act 1993 if the references in that section to the
Managing Director of the Health Insurance Commission were references to the
person responsible for the verification.
parental member, in relation to a family, has the same
meaning as in section 4 of the Childcare Rebate Act 1993.
11 After section 12A
Insert:
12 After section 12E
Insert:
(1) The Secretary is to allocate child care places to child care centres
determined, whether before or after the commencement of this Division, to be
eligible child care centres under subsection 4B(2).
(2) An allocation must be made in accordance with the guidelines made
under section 4C.
(3) After 31 December 1999, this section does not apply.
(1) An amount is not payable to the operator of an eligible child care
centre by way of a grant approved under section 12A in respect of a child under
7, from a date determined by the Secretary under subsection (2) in relation to
the child, unless the Secretary is satisfied that:
(a) the child is immunised; or
(b) both of the following have occurred:
(i) a recognised immunisation provider has certified in writing that he or
she has discussed with a person who is a fee relief beneficiary in relation to
the child the benefits and risks of immunising the child;
(ii) the person has declared in writing that he or she has a conscientious
objection to the child being immunised; or
(c) if the child is a dependent child of another person, both of the
following have occurred:
(i) a recognised immunisation provider has certified in writing that he or
she has discussed with the other person the benefits and risks of immunising the
child; and
(ii) the other person has declared in writing that he or she has a
conscientious objection to the child being immunised; or
(d) a recognised immunisation provider has certified in writing that the
immunisation of the child would be medically contraindicated under the
specifications set out in the Australian Immunisation Handbook; or
(e) a recognised immunisation provider has verified in writing that the
vaccine for immunising the child is not, or will not be, available immediately
before or during the period in respect of which the amount of grant would
otherwise be payable to the operator; or
(f) a registered medical practitioner has certified in writing that the
child has recovered from the relevant disease, has developed a natural immunity
and does not require immunisation; or
(g) the child is in a class of children exempted from the requirement to
be immunised by a direction under subsection 12H(1).
(2) If the Secretary is not satisfied as mentioned in a paragraph of
subsection (1), the Secretary must:
(a) determine, in accordance with the Minister’s directions, the
date from which amounts of grant approved under section 12A cease to be payable
for fee relief in respect of the child; and
(b) give notice, in accordance with the directions, that an amount of
grant approved under section 12A is not payable for fee relief in respect of the
child on or after that date.
(1) The Minister may, in writing, direct that children included in a class
of children specified in the direction are exempted from the requirement to be
immunised.
(2) The Minister may, in writing, give directions about:
(a) the persons to whom notice under subsection 12G(2) is to be given, the
matters to be included in such a notice and the procedure for giving such a
notice; and
(b) the way in which the date referred to in paragraph 12G(2)(a) is to be
determined.
(3) A direction under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
13 After Part III
Insert:
(1) A person may obtain protected information if the information is
obtained for a permitted purpose.
Note: In certain circumstances it is an offence for a person
to obtain protected information without authority (see section
12K).
(2) A person may:
(a) make a record of protected information; or
(b) disclose protected information to any person; or
(c) otherwise use protected information;
if the record, disclosure or use made of the information by the person is
made:
(d) for a permitted purpose; or
(e) for the purpose for which the information was disclosed to the person
under section 12M or 12N.
Note: In certain circumstances it is an offence for a person
to use protected information without authority (see section
12L).
A person is guilty of an offence if:
(a) the person obtains information; and
(b) the information is protected information; and
(c) the person:
(i) is not authorised or required by or under this Act or the Social
Security Act 1991; and
(ii) has no other lawful authority;
to obtain the information; and
(d) the person knows, or is reckless as to whether, the information is
protected information.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
A person is guilty of an offence if:
(a) the person:
(i) makes a record of; or
(ii) discloses to any other person; or
(iii) otherwise makes use of;
information; and
(b) the information is protected information; and
(c) the person:
(i) is not authorised or required by or under this Act or the Social
Security Act 1991; and
(ii) has no other lawful authority;
to make the record, disclosure or use of the information that is made by
the person; and
(d) the person knows, or is reckless as to whether, the information is
protected information.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
An officer must not, except for a permitted purpose, be
required:
(a) to produce any document in his or her possession; or
(b) to disclose any matter or thing of which he or she had
notice;
by reason of the performance or exercise of his or her duties, functions or
powers under this Act or the Social Security Act 1991 to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the answering of
questions.
(1) Despite sections 12L and 12M, the Secretary may:
(a) if the Secretary certifies that it is necessary in the public interest
to do so in a particular case or class of cases—disclose information
acquired by an officer in the performance of his or her functions or duties or
in the exercise of his or her powers under this Act or the Social Security
Act 1991 to such persons and for such purposes as the Secretary determines;
or
(b) disclose any such information to the Secretary of a Department of
State of the Commonwealth or to the head of an authority of the Commonwealth for
the purposes of that Department or authority; or
(c) disclose any such information to a person who is expressly or
impliedly authorised by the person to whom the information relates to obtain
it.
Note: A person to whom information is disclosed may commit
an offence if the person uses the information without authority (see section
12L).
(2) In giving certificates for the purposes of paragraph (1)(a), the
Secretary must act in accordance with guidelines in force under subsection
12P(1).
(3) In disclosing information under paragraph (1)(b), the Secretary must
act in accordance with guidelines in force under subsection 12P(1).
(1) The Minister, by determination in writing:
(a) may make guidelines for the exercise of the Secretary’s power to
give certificates for the purposes of paragraph 12N(1)(a); and
(b) may make guidelines for the exercise of the Secretary’s power
under paragraph 12N(1)(b).
(2) The guidelines must not be inconsistent with the provisions of the
Privacy Act 1988.
(3) Before making a determination under subsection (1), the Minister must
consult the Privacy Commissioner.
(4) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
A person is guilty of an offence if:
(a) the person solicits the disclosure of information from an officer or
another person; and
(b) the disclosure would be in contravention of this Part; and
(c) the first-mentioned person knows, or is reckless as to whether, the
information is protected information.
The offence is committed whether or not any protected information is
actually disclosed.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
A person commits an offence if:
(a) the person solicits the disclosure of protected information from an
officer; and
(b) for that purpose makes representations which the person knows are
untrue.
The offence is committed whether or not any protected information is
actually disclosed.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person is guilty of an offence if the person:
(a) offers to supply (whether to a particular person or otherwise)
information about another person; and
(b) knows that the information is protected information.
The offence is committed whether or not any protected information is
actually supplied.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if the person:
(a) holds himself or herself out as being able to supply (whether to a
particular person or otherwise) information about another person; and
(b) knows that the information is protected information.
The offence is committed whether or not any protected information is
actually supplied.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) Nothing in subsection (1) or (2) renders an officer acting in the
exercise or performance of his or her duties, functions or powers under this Act
or the Social Security Act 1991 guilty of an offence.
The provisions of this Part that relate to the disclosure of information
do not affect the operation of the Freedom of Information Act
1982.
Chapter 2 of the Criminal Code applies to all offences against
this Part.
The Crown is not liable to be prosecuted for an offence against, or
arising out of, this Part.
14 After subsection 21(1)
Insert:
(2) The Minister may, in accordance with service arrangements, by signed
instrument, delegate to the CEO or an employee of the Agency the
Minister’s powers under subsection 12A(2) and sections 20B and
23.
Note: The heading to section 21 is replaced by the heading
“Delegations by the Minister”.
15 After section 21
Insert:
(1) The Secretary may, by signed instrument, delegate all or any of the
Secretary’s powers and functions under this Act to an officer.
(2) The Secretary may, in accordance with service arrangements, by signed
instrument, delegate to the CEO or an employee of the Agency all or any of the
Secretary’s powers and functions under this Act.
(3) The Secretary may, by signed instrument, delegate to the operator of
an eligible child care centre all or any of the Secretary’s powers and
functions under Division 4 of Part III of this Act.
(4) If the Secretary delegates to the CEO or an employee of the Agency a
power under this Act to invite a person to make submissions to the Secretary,
the delegate may, in exercising the power, invite the person to make the
submissions to the CEO instead of the Secretary.
(5) A person who makes a submission to the CEO instead of the Secretary in
response to an invitation given by a delegate referred to in subsection (4) is
to be treated for all purposes as if the person had made the submission to the
Secretary in response to an invitation by the Secretary.
16 Paragraph 12(2)(a)
Omit “6”, substitute “30”.
17 Subsection 12(3)
Omit “6”, substitute “30”.
Child
Care Payments (Consequential Amendments and Transitional Provisions) Act
1997
18 Sections 8 and 9
Repeal the sections.
19 Item 1 of Schedule 1
Repeal the item, substitute:
1 Subsection 4(1) (definition of
Agency)
Repeal the definition.
1A Subsection 4(1) (definition of Agency
Act)
Repeal the definition.
1B Subsection 4(1) (definition of approved
child care service)
Repeal the definition.
1C Subsection 4(1) (definition of Australian
Immunisation Handbook)
Repeal the definition.
1D Subsection 4(1) (definition of
CEO)
Repeal the definition.
1E Subsection 4(1) (definition of
conscientious objection)
Repeal the definition.
1F Subsection 4(1) (definition of eligibility
requirements)
Repeal the definition.
20 After item 2 of Schedule
1
Insert:
2A Subsection 4(1) (definition of
immunised)
Repeal the definition.
2B Subsection 4(1) (definition of
information)
Repeal the definition.
2C Subsection 4(1) (definition of
officer)
Repeal the definition.
21 After item 3 of Schedule
1
Insert:
3A Subsection 4(1) (definition of protected
information)
Repeal the definition.
3B Subsection 4(1) (definition of recognised
immunisation provider)
Repeal the definition.
3C Subsection 4(1) (definition of service
arrangements)
Repeal the definition.
22 After item 4 of Schedule
1
Insert:
Repeal the subsection.
23 Item 6 of Schedule 1
Repeal the item, substitute:
6 Subsections 4B(2) to (4)
Repeal the subsections.
6A Paragraph 4C(1)(b)
Repeal the paragraph.
6B Subsection 4C(1A)
Repeal the subsection.
6C Sections 4D to 4G
Repeal the sections.
6D Division 1 of Part III
(heading)
Repeal the heading, substitute:
24 Item 7 of Schedule 1
Repeal the item, substitute:
7 Section 12A
Repeal the section.
7A Divisions 2, 3 and 4 of Part
III
Repeal the Divisions.
7B Part IIIA
Repeal the Part.
7C Subsection 21(2)
Repeal the subsection.
7D Section 21A
Repeal the section.
25 Section 4
Insert:
Australian Immunisation Handbook means the latest edition of
the Australian Immunisation Handbook published by the Australian Government
Publishing Service.
conscientious objection, in relation to the immunisation of a
child, has the same meaning as in the Child Care Payments Act
1997.
immunised has the same meaning as in the Child Care
Payments Act 1997.
recognised immunisation provider has the same meaning as in
section 46A of the Health Insurance Act 1973.
26 After Division 1 of Part
4
Insert:
(1) If:
(a) a claim for childcare rebate is made on or after the commencement of
this Division in respect of a child under 7; and
(b) the claim is the first one made in respect of the child
after:
(i) the commencement of this Division; or
(ii) the last one made in respect of the same child in relation to which
the Commission was satisfied as mentioned in a paragraph of subsection (3);
and
(c) the Commission is not satisfied as mentioned in a paragraph of
subsection (3) in relation to the claim;
childcare rebate is payable in respect of the claim, and any subsequent
claim for childcare rebate made in respect of the child within 28 days after the
first-mentioned claim was made, despite the fact that the Commission is not so
satisfied in relation to any of the claims.
(2) If:
(a) subsection (1) applies in respect of a child; and
(b) a claim for childcare rebate is made in respect of the child after the
end of the 28 day period mentioned in that subsection; and
(c) the child was still under 7 when the claim was made;
childcare rebate is not payable in respect of the claim unless the
Commission is satisfied as mentioned in a paragraph of subsection (3).
(3) The Commission is to be satisfied in relation to a claim
that:
(a) the child was immunised when the claim was made; or
(b) before the claim was made:
(i) a recognised immunisation provider certified in writing that he or she
had discussed with the person who made the claim the benefits and risks of
immunising the child; and
(ii) the person declared in writing that he or she had a conscientious
objection to the child being immunised; or
(c) if the child is a dependent child of another person, the claim was
made after:
(i) a recognised immunisation provider certified in writing that he or she
had discussed with the other person the benefits and risks of immunising the
child; and
(ii) the other person declared in writing that he or she had a
conscientious objection to the child being immunised; or
(d) both of the following conditions are satisfied:
(i) when the claim was made the immunisation of the child was
contraindicated under the specifications set out in the Australian Immunisation
Handbook;
(ii) a recognised immunisation provider has certified in writing that the
immunisation is medically contraindicated under those specifications;
or
(e) a recognised immunisation provider has certified in writing that the
vaccine for immunising the child was not available immediately before the claim
was made; or
(f) a registered medical practitioner has certified in writing that the
child has recovered from the relevant disease, has developed a natural immunity
and does not require immunisation; or
(g) the child is in a class of children exempted from the requirement to
be immunised by a direction under subsection 39B(1).
(4) If:
(a) the Commission is satisfied as mentioned in a paragraph of subsection
(3) in relation to the child; and
(b) a person later makes another claim for child care rebate in relation
to the child;
the Commission has to regard that paragraph as also being satisfied in
relation to the child and the later claim, unless the Commission considers that
there is reason to require the matter in the paragraph to be
re-established.
(1) The Minister may, in writing, direct that children included in a class
of children specified in the direction are exempted from the requirement to be
immunised.
(2) The Minister may, in writing, give directions about the way in which
the Commission is to satisfy itself about a matter mentioned in subsection
39A(3), including the matters to be taken into account by the Commission for
that purpose.
(3) A direction under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.