Family Assistance Legislation Amendment (Building on Child Care Package) Bill 2019 [2019] AUSStaCSBSD 110 (16 October 2019)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	This bill seeks to amend Acts relating to family assistance to: • amend the requirements on child care providers for the issuing of Additional Child Care Subsidy; • allow the Minister for Education (the Minister) to prescribe circumstances in which a third party may contribute to meeting the cost of an individual's child care fees without affecting that individual's Commonwealth child care subsidies; • allow the Minister to prescribe specific circumstances in which Commonwealth child care subsidies can be paid where the child is absent at the start or end of an enrolment; • provide for the Minister to specify eligibility criteria and care requirements to access Commonwealth-subsidised In Home Care places; • increase the number of weeks at which enrolments automatically cease due to non-attendance from 8 to 14 weeks; • clarify that decisions made under section 105 of the A New Tax System (Family Assistance)(Administration) Act 1999 must first be subject to internal review before an application is made to the Administrative Appeals Tribunal; • simplify the Child Care Subsidy claims process; • ensure that where an approved provider or child care service is suspended or cancelled that access to Commonwealth child care subsidies automatically cease
Portfolio	Education
Introduced	House of Representatives on 18 September 2019

Significant matters in delegated legislation^[57]

1.97 Schedule 1 to the bill seeks to make a number of changes in relation to the provision of Child Care Subsidy and Additional Child Care Subsidy, including amendments to the A New Tax System (Family Assistance) Act 1999 in relation to when these subsidies will be available for child care provided by in home care.

1.98 Proposed paragraph 85BA(1)(e) will allow targeted eligibility criteria for Child Care Subsidy for in home care to be prescribed in the Minister's rules (that is, in delegated legislation). The explanatory memorandum states that the eligibility criteria to be set out in the rules

1.99 Proposed section 85ECA will enable the Minister's rules to prescribe requirements that must be met with respect to the provision of care by in home services in order for such care to attract Child Care Subsidy. The explanatory memorandum states that this 'amendment ensures that the Minister's rules are able to clearly prescribe care requirements for In Home Care services' such as 'requirements relating to ratios of in home educators and number of children'.^[59]

1.100 The committee's view is that significant matters, such as the eligibility requirements for Commonwealth-subsidised in home care places, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, it is unclear to the committee why at least high level guidance regarding the circumstances in which child care subsidies will be available for in home care cannot be included in the primary legislation. For example, it is unclear why the relevant circumstances outlined in the explanatory memorandum could not be included on the face of the bill. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.101 The committee's view is that significant matters, such as the eligibility requirements for Commonwealth-subsidised in home care services, should be included in primary legislation unless a sound justification is provided. The committee therefore requests the minister's more detailed advice as to:

Merits review^[60]

1.102 Items 9 and 10 of Schedule 2 to the bill seek to exclude decisions made under either section 197H or 197J of the A New Tax System (Family Assistance) (Administration) Act 1999 from review by the Administrative Appeals Tribunal. Section 197H provides that the Secretary must cancel the approval of an approved provider if the provider ceases to operate all of the approved child care services of the provider. Section 197J provides that the Secretary must vary the approval of a provider if the provider ceases to operate some of its services.

1.103 The committee considers that, generally, administrative decisions that will, or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided. In this instance, the explanatory memorandum states:

1.104 The committee notes that the decisions in sections 197H and 197J are not discretionary and the Secretary must make the decision to cancel or vary the approval of an approved provider in certain circumstances. However, it remains unclear to the committee why merits review should not be available in circumstances where there has been a mistake of fact as to whether the relevant conditions in sections 197H and 197J have occurred.

[57] Schedule 1, proposed paragraph 85BA(1)(e) and proposed section 85ECA. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[60] Schedule 2, items 9 and 10. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests