Family Assistance Legislation Amendment (Building on Child Care Package) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 145 (13 November 2019)

• Family Assistance Legislation Amendment (Building on Child Care Package) Bill 2019
• Significant matters in delegated legislation 34
• Merits review37

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Family Assistance Legislation Amendment (Building on Child Care Package) Bill 2019

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
Bills status	Before House of Representatives

Significant matters in delegated legislation ^[34]

2.100 In Scrutiny Digest 7 of 2019 the committee requested the minister's more detailed advice as to:

• why it is considered necessary and appropriate to leave significant elements of the provision of subsidies for in home care to delegated legislation; and

• whether it would be appropriate for the bill to be amended to set out at least high level guidance of the relevant eligibility requirements on the face of the primary legislation.^[35]

Minister's response^[36]

2.101 The minister advised:

The primary purpose of this amendment is to enable targeted eligibility criteria for Child Care Subsidy for In Home Care to be prescribed and clarified in the Child Care Subsidy Minister's Rules 2017, and to enable an assessment of whether individuals meet that eligibility criteria to occur, prior to such individuals accessing In Home Care. These eligibility criteria will broadly encompass the availability and suitability of access to other forms of appropriate care, geographic location, non-standard or variable working hours of parents, and whether families seeking to access In Home Care have complex and or extensive additional needs.
Section 85BA of the Assistance Act contains a high-level criteria for Child Care Subsidy eligibility. If a family is not eligible for Child Care Subsidy then they will not meet the first requirement for eligibility for In Home Care.
Given that the primary eligibility requirement for In Home Care is contained in the Assistance Act, incorporating targeted eligibility criteria for In Home Care in the Child Care Subsidy Minister's Rules 2017, is appropriate, as it enables the other criteria to be amended in response to changes in demand for the program.
I note further, that section 85BA of the Assistance Act has other similar certain eligibility criteria prescribed in the Child Care Subsidy Minister's Rules such as:

• subparagraph 85BA(1)(c)(iii) which refers to circumstances where no one is eligible for a session of care (Part 2, Division 1, 8)

• paragraph 85BA(2)(a) allows eligibility requirements for children aged over 13 or attending secondary school to be prescribed in Minister's rules (Part 2, Division 1A)

• subsection 85CA(4) which refers to circumstances in which a child is taken to be at risk of serious abuse or neglect - child at risk of suffering harm (Part 2, Division 2)

• subsection 85CG(2) which refers to circumstances in which an individual is taken to be experiencing temporary financial hardship (Part 2, Division 3, 12).

Committee comment

2.102 The committee thanks the minister for this response. The committee notes the minister's advice that given that the primary eligibility requirement for in home care is contained in the A New Tax System (Family Assistance) (Administration) Act 1999 (Assistance Act), incorporating targeted eligibility criteria for in home care in the Child Care Subsidy Minister's Rules 2017, is appropriate, as it enables the other criteria to be amended in response to changes in demand for the program.

2.103 While the committee notes this advice and it welcomes the fact that at least some eligibility requirements are set out in the primary legislation, the committee reiterates its long-standing scrutiny view that significant matters, such as the eligibility criteria 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. The committee has generally not accepted administrative flexibility, on its own, as a sufficient justification for leaving significant matters to delegated legislation. In this regard, 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. From a scrutiny perspective, it remains unclear why high level guidance regarding the eligibility criteria, the nature of which are outlined in the minister's response, cannot be included in primary legislation.

2.104 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving significant elements of the provision of subsidies for in home care to delegated legislation.

2.105 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Merits review^[37]

2.106 In Scrutiny Digest 7 of 2019 the committee requested the minister's advice as to why merits review will no longer be available in relation to decisions made under sections 197H and 197J of the A New Tax System (Family Assistance) (Administration) Act 1999. ^[38]

Minister's response

2.107 The minister advised:

Decisions made under subsection 202(4A), which was the equivalent provision to sections 197H and 197J in the Administration Act as it existed prior to amendments, which came into effect on 2 July 2018, were not reviewable by the AAT through operation of section 138 of the Administration Act as it existed at the time.
When amendments in the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 were being drafted, decisions under the new sections 197H and 197J were not intended to be reviewable by the AAT, that is, the existing exceptions would continue under the new Act, but these exemptions were omitted by oversight.
It is important for the Committee to note that a person affected by a decision made under sections 197H or 197J may still seek internal merits review of the decision under subsection 109A(1B) of the Administration Act. At this point, the Secretary of the Department of Education, or an authorised review officer appointed under section 109C of the Administration Act, must independently review the original decision and decide to affirm, vary or set aside the original decision based on the evidence before them.
When conducting this review, the Secretary or authorised review officer may relevantly consider whether there was a mistake of fact as to whether the relevant circumstances in sections 197H or 197J had arisen.

Committee comment

2.108 The committee thanks the minister for this response. The committee notes the minister's advice that previous exemptions from merits review were unintentionally omitted from the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017.

2.109 The committee also notes the minister's advice that a person affected by a decision made under sections 197H or 197J may still seek internal merits review of the decision under subsection 109A(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999.

2.110 While the committee notes this advice, the committee reiterates 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. 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. From a scrutiny perspective, the committee does not consider the existence of internal review processes to be an appropriate substitute for independent merits review.

2.111 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of removing merits review in relation to decisions made under sections 197H and 197J of the A New Tax System (Family Assistance) (Administration) Act 1999.

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[34] 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).

[35] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, pp. 28-30.

[36] The minister responded to the committee's comments in a letter dated 6 November 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

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

[38] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, p. 30.